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Home My WebLink AboutOctober 7, 2003 Agenda AGENDA CITY OF DENTON CITY COUNCIL October 7, 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, October 7, 2003 at 4:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of October 7, 2003. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Governmem Code, as amended, as set forth below. 1. Closed Meeting A. Consultation with Attorney - Under Tex. Gov't Code §551.071. Discuss and consider 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. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE "PUBLIC POWER EXCEPTION"). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §§551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §§551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. The City Council will attend a reception and dedication of the City's newly created display honoring DeMon's former Mayors and City Managers from 5:00 to 6:00 p.m. in the foyer of City Hall. 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, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: City of DeNon City Council Agenda October 7, 2003 Page 2 1. PLEDGE OF ALLEGIANCE mo U.S. Flag Texas Flag "Honor the Texas Flag -- I pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards B. Recognition of staff accomplishments 3. CITIZEN REPORTS mo Receive citizen reports from the following: 1. Nell Yeldell regarding high utilities, drainage ditches, and the concrete plant. 2. Maureen Jamail regarding Lakeview Boulevard. 3. Ed Soph regarding growing concerns over Acme Brick. 4. Dessie Goodson regarding general city issues. 5. Alice Gore regarding Acme Brick's air quality comrol application. 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-P). 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-P 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. A. Consider approval of the minutes of September 2, 9 and 16, 2003. Bo Consider adoption of 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. City of DeNon City Council Agenda October 7, 2003 Page 3 Consider adoption of an ordinance of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreemem 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. Consider approval of tax refunds for the following property taxes: Name Reason Year Amount I ~ gi~ Ma ~nt~ M~ ~ii~a~ P~nt 2002 $~ 0~0~ 2. Jonathan Littmann Duplicate Payment 2002 $1,158.27 Consider approval of an exaction variance of Section 35.20.3(B) of the Code of Ordinances concerning a perimeter street's sidewalk requirements. The parcel contains approximately 0.23 acres and is located at 1214 Morse Street. The property is within a Neighborhood Residemial-4 (NR-4) zoning district. The Planning and Zoning Commission recommends approval. (V03-O011, Morse Street Addition) Consider adoption of 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. Consider adoption of 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). Consider adoption of 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 Denton Engineering Department; authorizing the expenditure of funds therefor and providing an effective date (RFP 3083 in an amoum not to exceed $300,000). Consider adoption of an ordinance approving of an interlocal Agreement between the City of DeNon and the City of Sanger for ambulance service and declaring an effective date. Consider adoption of an ordinance approving of an interlocal Agreement between the City of DeNon and the City of Ponder for ambulance service and declaring an effective date. City of Demon City Council Agenda October 7, 2003 Page 4 Ko Consider adoption of 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 Consider approval of 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 Consider approval of 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 Consider adoption of 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 Consider adoption of 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. Po Consider adoption of an ordinance authorizing the City Manager to execute a non- drill site/pooling agreemem with Joim Resources Company for 353 acres of North Lakes Park; and providing an effective date. PUBLIC HEARINGS mo Hold a public hearing and consider 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 is generally located along the south side of H. Lively Road approximately 2.6 miles west of Interstate 35 West. Five (5) gas well sites are proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0020, Robson Ranch) Bo Hold a public hearing and consider adoption of an ordinance regarding a Specific Use Permit for a drive-through facility. The approximately 8.3 acre property is in a Neighborhood Residemial Mixed Use (NRMU) and is generally located approximately one block south of Teasley Lane and west of FM 2181. A drive- thru bank is being proposed. The Planning and Zoning Commission recommends approval (6-1). (Z03-0013, DATCU) City of DeNon City Council Agenda October 7, 2003 Page 5 Co Hold a public hearing and consider adoption of an ordinance allowing the negotiation of the best bid for a comract 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. 6. ITEMS FOR INDIVIDUAL CONSIDERATION mo Consider adoption of an ordinance of the City Council of the City of DeNon, 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. Bo Consider adoption of an ordinance approving an amendment to an Interlocal Agreemem between the City of DeNon and University of North Texas dated November 5, 2002 to provide for bus services; and providing an effective date. Co Consider adoption of an ordinance authorizing the Mayor to execute an Interlocal Agreemem between the City of DeNon 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. Do Consider 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). mo Consider approval of a resolution authorizing the City Manager, as DeMon'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. Fo Consider approval of a resolution nominating a member to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. Go Consider approval of a resolution of the City of DeNon, 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. City of Demon City Council Agenda October 7, 2003 Page 6 Ho Jo Ko New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Demon, 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 HEAR1NG 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. CITY OF DENTON CITY COUNCIL MINUTES September 2, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, September 2, 2003 at 5:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, and Thomson. ABSENT: Council Member Redmon 1. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for September 2, 2003. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider specific items listed below. 1. Closed Meeting: mo Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Discussed and considered legal issues concerning Charter Communications d/b/a Marcus Cable Associates, L.L.C, ("Charter") as follows: a. Application for Review filed by the City of DeNon of the FCC Bureau Chief Order granting Charter's Petition for Effective Competition, b. Charter Franchise Fee Audit, c. Notice to Charter of Customer Service Violations and assessment of Liquidated Damages, d. Non-paymem of Cable Modem Franchise Fees, e. Charter Franchise Renewal; where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potemial litigation. Discussed and considered the status of legal issues concerning an Imerim 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 where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. Council Member Redmon arrived during the Closed Session. City of DeNon City Council Minutes September 2, 2003 Page 2 Regular Meeting of the City of Demon City Council on Tuesday, September 2, 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 There were no proclamations/awards presemed during the meeting. B. Recognition of staff accomplishmems City Manager Conduffpresemed staff accomplishmems to Council. 3. CONSENT AGENDA Council Member Thomson requested that Item B be pulled for separate consideration. Council Member McNeill requested that Item M be pulled for separate consideration. Council Member Redmon requested that Items H-K and N-W be pulled for separate consideration. Burroughs motioned, Kamp seconded to approve the Consent Agenda and accompanying ordinances with the exception of Items B, M, H-K and N-W. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Item B was considered. Council Member Thomson stated that there were requests to speak on the item. The following individuals requested to speak on the item: Michael Powell, 309 South Locust, Denton, 76201 - favor Donald Wheeler, 1619 Amhurst, DeNon, 76201 - opposed A commem card by Valerie Dickerson, 309 S. Locust, Demon, 76201 indicated support for the exception. Council discussed various aspects of the requested exception including poims that 65 db might be too loud to get a message across; the exception was for amplified sound on Sundays; enforcemem was needed as it was unfair to place an additional burden on the neighborhood to keep complaining when there was a history of problems prior to the request for the exception; the City of Demon City Council Minutes September 2, 2003 Page 3 petition submitted included signers on both sides of University; citations had already been given for noise violations; and an alternative might be to reduce the allowed db to keep the noise level down. An additional request to speak card was received from Pat Nguyen, 3400 Joyce Lane, Denton, who spoke in favor of the request. Thomson motioned, McNeill seconded to approve the exception with 50 decibels at 50 feet for the Sundays in September. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Items H, I, J, and K were considered. Council Member Redmon stated that he was opposed to increasing fees on citizens at this time. He also felt that he had not received much information regarding these items. He was not willing to approve these increases at this point in time and suggested postponing consideration at this time. Council discussed Council Member Redmon's objections at length indicating that there were in- depth discussions during budget workshops relative to these items, the fact that the utility rates were not supported by the general fund budget and not related to taxes and that the Public Utilities Board had studied the items at great length before recommending them to Council. The following individuals requested to speak on these items: Evelyn Cosby, 2736 Foxcroft, Demon, 76207 - upset with increased fees Joyce Poole, 3021 North Bonnie, Brae, Denton, 76207- questions regarding the budget A commem card was received from Alice Gore, 2215 Westwood Drive, Demon, 76205 indicating opposition to the increases. Mayor Brock indicated that a request to speak card had been turned in late and requested Council's preference on whether or not to allow the speaker time to address the Council. Thomson motioned, Redmon seconded to suspend the Council rules and allow the commems. On roll vote, Burroughs "nay", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "nay". Motion carried with a 5-2 vote. Don White, 2105 Savannah Trail, Denton, 76205 spoke against the items. Council continued their discussion relative to landfill rates, current landfill contracts, and the Public Utilities Board vote on the rate ordinances and the utility budget. Thomson motioned, Kamp seconded to approve Items H, I, J, and K. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "nay", Thomson "aye" and Mayor Brock "aye". Motion carried with a 6-1 vote. City of DeNon City Council Minutes September 2, 2003 Page 4 Item M was considered. Council Member McNeill stated that he wanted to consider this item separately in order to amend the ordinance. He felt a finite time period needed to be added to the ordinance in order to consider it again at a later date. McNeill motioned, Thomason seconded to approve the ordinance with an amendment to add a sunset clause with an effective date of 10/1/03 to 10/1/04. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Items N-W were considered. Council Member Redmon expressed concern about the recipiems receiving these funds. Out of the 17 committees requesting funding for 2004, minority volumeer committees would be receiving $27,000 out of the $840,000 funding allocation. He felt that funding should not be approved. He suggested that the community felt the allocations were racially based and were not equitable in the allocation of the funding. Council discussion indicated that the allocation of funds did not involve any type of racial consideration. The purpose of the funds was to sell Denton and not to fund events for various organizations or groups. Mayor motioned, Kamp seconded to approve Items N-W. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "nay", Thomson "aye" and Mayor Brock "aye". Motion carried with a 6-1 vote. Approved the minutes of July 25, August 5, August 7, August 12, and August 19, 2003. Approved an exception to the noise ordinance for Church on Fire Revival Cemer for Sundays during the momh of September from 11:00 a.m. to 2:30 p.m. and from 7:30 p.m. to 10:00 p.m. 2003-259 - An ordinance accepting competitive bids by way of an Imerlocal Agreemem with the City of Garland and awarding a job order comract for DeNon Municipal Electric for construction, maintenance, and repair of the Denton Municipal Electric Overhead Distribution System; providing for the expenditure of funds therefor; and providing an effective date (File 3082 - Imerlocal Agreement for construction, maintenance, and repair of the Denton Municipal Electric Overhead Distribution System with the City of Garland, contract awarded to South-Win, Inc. in the estimated annual amoum of $250,000). 2003-260 - An ordinance accepting sealed competitive proposals and awarding a contract for construction services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFSCP 3016 - City of DeNon City Council Minutes September 2, 2003 Page 5 Purchasing Office Renovation awarded to Smith Contractors, Inc. in the amount of $157,000). mo 2003-261 - An ordinance approving the expenditure of funds for the purchase of epoxy coatings available from only one source in accordance with the provision for State Law exempting such purchases from requirements of competitive bids; and providing an effective date (File 3078 - Purchase of Epoxy Coatings to Raven Lining Systems in the estimated amouN of $60,000). (Items F-AA are items that support the proposed 2003-2004 budget and have been previously considered in budget work sessions.) Fo 2003-262 - An ordinance of the City of DeNon, Texas amending the Schedule of Rates coNained in Ordinance No. 2002-267 for Electric service; including all provisions of Ordinance No. 2002-331 as a part of the Rate Ordinance (Schedule EP); providing for a repealer; providing for a severability clause; and providing for an effective date. Go 2003-263 - An ordinance amending the Schedule of Water Rates coNained in Ordinance No. 2002-268 for Water Service and Water Rates; amending the wholesale raw water service rate to Upper Trinity Regional Water District (Schedule WRW); adding a fee for pass-through raw water sen from Lake Chapman to Lake Lewisville for the Upper Trinity Regional Water District (Schedule WCL); amending the water tap and meter fees; amending the fire hydraN installation fees; providing for a repealer; providing for a severability clause; and providing for an effective date. Ho 2003-264 - An ordinance amending the Schedule of Wastewater Rates contained in Ordinance No. 2002-269 for Wastewater Service; amending the resideNial facility charge and volume rate (Schedule SR); amending the mobile home park facility charge and volume rate (Schedule SMH); amending the commercial/industrial facility charge and volume rate (Schedule SC); amending the commercial/industrial (sub-meters) water for wastewater billing volume rate (Schedule SCD); amending the commercial/industrial (sub-meters) water excluded from wastewater facility charge (Schedule SCS); amending the equipmeN services facilities and restauraNs & food facility charge and volume rate (Schedule SEE); amending the metered wastewater inside and outside corporate limits facility charge and volume rate (Schedule SM); amending the wholesale treatmeN service for a govemmeNal agency, division, or subdivision facility charge and volume rate (Schedule SSC); amending the existing compost and wood mulch schedule to be named "Dyno Dirt Products" and to add new compost products (Schedule CWM); amending the charges for grass/brush/leaves and amending the minimum charge (Schedule GBL); amending the wastewater tap fees (Schedule ST); amending the on-site sewage facility charge as set forth by separate ordinance and including the charge in the wastewater rate ordinance (Schedule OSSF); providing for a repealer; providing for a severability clause; and providing for an effective date. City of Demon City Council Minutes September 2, 2003 Page 6 2003-265 - An ordinance of the City of Demon, Texas amending the Schedule of Rates for Solid Waste Service comained in Ordinance Number 2002-270 as authorized by Chapter 24 of the Code of Ordinances of the City of Demon, Texas; providing that the provisions of sections 26-3, 26-4, 26-5, 26-7, 26-8(a), and 26-9 of the Code of Ordinances of the City of Demon, Texas shall expressly apply to City of Demon Solid Waste service; amending the manual residemial rate charge; amending the comainerized collection service charge (Schedule SWR); amending the residemial curbside recycling and processing service charge; amending the charges for minimum billing/base rate service upon condition and application (Schedule SWRR); amending the momhly rates for commercial & institutional solid waste collection services; increasing service charges for commercial from- load and side-load containers; amending the charges for container extra service; adding a nominal charge to provide semi-automated commercial cart service; amending the hand collected commercial service charge; amending the charges for temporary front load container service; amending the charge for roll-off open top service; adding increased charges for refuse equal to or greater than 700 pounds per cubic yard - overweight loads; amending the roll-off compactor container services charges; amending the six cubic yard compactor charges; amending the shared commercial container charges; amending the container delivery fee and relocation charges; amending the inaccessible comainer charges; adding a difficult comainer access fee charge; amending the lock charges (Schedule SWC); adding the commercial recycling services schedule with application, qualification and momhly rate (Schedule SWCR); adding the solid waste collection and transportation services permit schedule, with application, granting of permit, exclusions, fees, term and renewal, and revocation or non- renewal of permits (Schedule SWP); amending the municipal solid waste disposal rate; deleting the outside the city landfill rate; adding a landfill volume charge; amending the minimum landfill charge; amending the landscape waste charge; amending the landfill bulky items charge; amending the inert materials charge; amending the unsecured loads charge (Schedule SWL); providing for a repealer; providing for a severability clause; and providing for an effective date. Jo 2003-266 - An ordinance of the City of Demon, Texas providing for the Schedule of Miscellaneous Fees, deposits, billings and procedures for administrative services to City customers and taxpayers comained in Ordinance No. 2002-271; amending the electric meter installation charge; amending the electric and water meter connection charge; amending the delinquent service charge; amending the unauthorized usage penalty; amending the additional meter reading charge; amending the meter testing charge; amending the meter tampering and/or damage charge; amending the meter inaccessibility charge; amending the returned payment charge; amending the credit report charge; providing for a repealer; providing for a severability clause; and providing for an effective date. Ko 2003-267 - An ordinance amending Section 22-38 of Chapter 22 (Parks and Recreation) of the Code of Ordinances of the City of Demon, Texas, relating to facility and program fees by adopting a Schedule of Fees; repealing all fees in conflict with such Schedule; repealing Ordinance No. 2002-275 and all City of Demon City Council Minutes September 2, 2003 Page 7 ordinances in conflict with the new Schedule of Fees; and providing an effective date. Lo 2003-268 - An ordinance of the City Council of the City of Demon revising and establishing certain fees for the i.O.O.F, and Oakwood Cemeteries in the City of Denton; and providing an effective date. Mo 2003-269 - An ordinance of the City of Demon, Texas providing for the paymem of administrative public works development review and inspection fees to the City for Engineering Review and inspection Services provided by the City for public improvements constructed by developers related to private development; superceding ordinances in conflict with this ordinance; and providing for an effective date. No 2003-270 An ordinance between the City of Demon use of hotel tax revenue; and authorizing the Mayor to execute an Agreement and the Denton Kiwanis Club for the payment and providing an effective date. Oo 2003-271 An ordinance authorizing the Mayor to execute an Agreement between the City of Demon and the Tejas Storytelling Association, inc. for the payment and use of hotel tax revenue; and providing an effective date. iD, 2003-272 An ordinance authorizing the Mayor to execute an Interlocal Agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Bayless-Selby House and the Courthouse-on-the-Square Museums; and providing an effective date. Qo 2003-273 An ordinance authorizing the Mayor to execute an Agreement between the City of Demon and the Demon Chamber of Commerce (Convemion & Visitor Bureau) for the paymem and use of hotel tax revenue; and providing an effective date. Ro 2003-274 An ordinance authorizing the Mayor to execute an Agreement between the City of Demon and the Demon Black Chamber of Commerce for the payment and use of hotel tax revenue; and providing an effective date. So 2003-275 An ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Denton Community Theatre for the payment and use of hotel tax revenue; and providing an effective date. 2003-276 An ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Denton Festival Foundation for the payment and use of hotel tax revenue; and providing an effective date. Uo 2003-277 An ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Greater Denton Arts Council for the payment and use of hotel tax revenue; and providing an effective date. City of DeNon City Council Minutes September 2, 2003 Page 8 2003-278 An ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. 2003-279 An ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the North Texas State Fair for the payment and use of hotel tax revenue; and providing an effective date. 2003-280 - An ordinance of the City of DeNon, Texas, amending Ordinance No. 2002-227 prescribing the number of positions in each classification of Police Officer; prescribing the number of positions in each classification of Fire Fighter; providing a savings clause; providing a severability clause; and declaring an effective date. 2003-281 - An ordinance adopting the budget and the first year of the Capital Improvemem Plan of the City of DeNon, Texas for the fiscal year beginning October 1, 2003, and ending September 30, 2004; and declaring an effective date. 2003-282 - An ordinance levying the ad valorem tax of the City of DeNon, Texas, for the year 2003, on all taxable property within the corporate limits of the city on January 1, 2003, not exempt by law; providing revenues for payment of current municipal expenses, and for imerest and sinking fund on outstanding City of Denton bonds; providing for limited exemptions of certain homesteads; providing for enforcemem of collections; providing for a severability clause; and providing an effective date. 2003-283 - An ordinance of the City of DeNon, Texas, approving the 2003 Tax Rolls; and providing an effective date. 4. PUBLIC HEARINGS A. The Council held a public hearing and considered adoption of an ordinance regarding the rezoning of approximately 0.34-acre tract from a Neighborhood Residemial 3 (NR- 3) zoning district to a Neighborhood Residemial 4 (NR-4) zoning district. The property was generally located at the southwest corner of Fain Street and Bolivar Street. The applicant was proposing to subdivide the existing lot. The Planning and Zoning Commission recommended approval (6-0). (Z03-0018) Kelly Carpemer, Director of Planning and Development, presented the details of the proposal. The Planning and Zoning Commission had recommended approval. The Mayor opened the public hearing. The following individual spoke during the public hearing: Joe Lanham, petitioner - favor The Mayor closed the public hearing. City of DeNon City Council Minutes September 2, 2003 Page 9 The following ordinance was considered: NO. 2003-284 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZON1NG CHANGE FROM NEIGHBORHOOD RESIDENTIAL-3 (NR-3) ZON1NG DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL-4 (NR-4) ZON1NG DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY .34 ACRE OF LAND LOCATED AT THE SOUTHWEST CORNER OF FAIN STREET AND BOLIVAR STREET IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0018) 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 held a public hearing and considered adoption of ordinances allowing the negotiation of the best bid for a lease for an Oil and Gas Non-Drill Site/Pooling AgreemeN with the bidders and city owned land listed below: Dottie Palumbo, Assistant City Attorney, presented the details regarding the bids for the sites. The Mayor opened public hearing. The following individuals spoke during the public hearing: Tom Fouts, 1200 Woodrow Lane. #100, DeNon, 76205 - requested a delay in consideration of #2 to allow for additional acreage and to finalize the bid process. Mark Kalpakis, Join Resources Co. - favor The Mayor closed the public hearing. Montgomery motioned, McNeill seconded to adopt the following ordinances. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 2003-285 - An ordinance allowing the negotiation of the best bid for an Oil and Gas Lease for a Non-drill Site/Pooling AgreemeN with Trio Consulting & Management Company, L.L.C. for the Hickory Creek Substation in the City of DeNon, Texas and allowing the City Manager to execute said Lease as long as the Lease is in the substantially same form as the City's Standard Lease; and providing an effective date. City of DeNon City Council Minutes September 2, 2003 Page 10 2003-286 - An ordinance allowing the negotiation of the best bid for an Oil and Gas Lease for a Non-drill Site/Pooling AgreemeN with Join Resources Company for Bid # 1 for the North Lakes Park in the City of Denton, Texas and allowing the City Manager to execute said Lease as long as the Lease is in the substaNially same form as the City's Standard Lease; and providing an effective date. o 2003-287 - An ordinance allowing the negotiation of the best bid for an Oil and Gas Lease for a Non-drill Site/Pooling AgreemeN with R.L. Adkins Corporation for the South Lake Park in the City of DeNon, Texas and allowing the City Manager to execute said Lease as long as the Lease is in the substaNially same form as the City's Standard Lease; and providing an effective date. C. The Council held a public hearing and considered adoption of an ordinance of the City of Denton, Texas designating a certain area within the city limits of Denton as Reinvestment Zone No. VI for Commercial/Industrial Tax AbatemeN; establishing the boundaries of such zone; making findings required in accordance with Chapters 311 and 312 of the Texas Tax Code; ordaining other matters relating thereto; providing a severability clause; providing for repeal; and providing an effective date. Linda Ratliff, Director of Economic Development, presented the details of the proposed tax abatement. The Mayor opened the public hearing. CommeNs cards were received by: Gary Davis, Flowers Foods - favor Melissa Glasgow, DeNon Chamber of Commerce - favor The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-288 AN ORDINANCE OF THE CITY OF DENTON, TEXAS DESIGNATING A CERTAIN AREA WITHIN THE CITY LIMITS OF DENTON AS REINVESTMENT ZONE NO. VI FOR COMMERCIAL/INDUSTRIAL TAX ABATEMENT; ESTABLISHING THE BOUNDARIES OF SUCH ZONE; MAK1NG FINDINGS REQUIRED IN ACCORDANCE WITH CHAPTERS 311 AND 312 OF THE TEXAS TAX CODE; ORDAINING OTHER MATTERS RELATING THERETO; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR REPEAL; AND PROVIDING AN EFFECTIVE DATE. City of Demon City Council Minutes September 2, 2003 Page 11 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. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance authorizing the Mayor to execute a Tax Abatement Agreement with Flowers Baking Co. of Denton, LLC, setting forth all the required terms of the Tax Abatement Agreement in accordance with the terms of Chapter 312 of the Texas Tax Code; setting forth the various conditions precedent to Flowers Baking Co. of Demon, LLC, receiving the Tax Abatemem; providing for a severability clause; and providing an effective date. Linda Ratliff, Director of Economic Development, presented the details of the proposal. Flowers Baking Co. would be renovating the existing Andrew Corporation. A 35% tax abatement for 5 years was being proposed. Speaker cards were received from: Gary Davis, 8329 Emerald Circle, North Richland Hills, 76180 - favor Melissa Glasgow, Chamber of Commerce - favor A commem card was received from Chuck Carpemer, Demon Chamber of Commerce - favor The following ordinance was considered: 2003-289 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE A TAX ABATEMENT AGREEMENT WITH FLOWERS BAKING CO. OF DENTON, LLC, SETTING FORTH ALL THE REQUIRED TERMS OF THE TAX ABATEMENT AGREEMENT IN ACCORDANCE WITH THE TERMS OF CHAPTER 312 OF THE TEXAS TAX CODE; SETTING FORTH THE VARIOUS CONDITIONS PRECEDENT TO FLOWERS BAKING CO. OF DENTON, LLC, RECEIVING THE TAX ABATEMENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. Burroughs motioned, Kamp seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered approval of a resolution of the City of Demon, Texas encouraging residents of the City of Denton to vote at the Sales and Use Tax Election for the Denton County Transportation Authority; and providing an effective date. The following resolution was considered: City of DeNon City Council Minutes September 2, 2003 Page 12 NO. R2003-023 A RESOLUTION OF THE CITY OF DENTON, TEXAS ENCOURAGING RESIDENTS OF THE CITY OF DENTON TO VOTE AT THE SALES AND USE TAX ELECTION FOR THE DENTON COUNTY TRANSPORTATION AUTHORITY; 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. C. The Council considered a motion to reconsider nominations/appointments made to the City's boards and commissions at the August 5, 2003 council meeting. Kamp motioned, McNeill seconded to reconsider the appoimmems made for Community Developmem Advisory Board, Library Board and the Public Utilities Board. 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 nominations/appoimmems to the City's boards and commissions including but not limited to the Community Developmem Advisory Board, Historic Landmark Commission, Library Board, and the Public Utilities Board. Council Member Burroughs made the following nominations: Public Utilities Board - John Baines Community Developmem Advisory Board - Cassandra Berry Historic Landmark Commission - Diana Hatch Library Board - Che Norris Montgomery motioned, McNeill seconded to suspend the rules to approve the nominations at this meeting. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. On roll vote for the nominations, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. E. New Business The following items of New Business were suggested by Council for future agendas: Council Member Redmon expressed concerns regarding new school zone signs throughout the city and suggested developing communication with the DISD. City of Demon City Council Minutes September 2, 2003 Page 13 Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda City Manager Conduff did not have any items for Council. G. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no continuation of Closed Meeting. H. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action taken. With no further business, the meeting was adjourned 9:20 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 9, 2003 After determining that a quorum was presem, the City Council convened in a Planning Session on Tuesday, September 9, 2003 at 4:00 p.m. in the City Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council received an outcome statement and held a discussion regarding Denton's image in regard to Balanced and Sustainable Growth. City Manager Conduff stated that Council needed to look at the proposed draft outcomes from the previous session. Last session dealt with the historic nature of the community and how that impacted tourism and development. Council discussion dealt with the following: What would be done with the outcome statements when they were finished. The need for infill developmem and compatibility with existing neighborhoods. A suggestion that the Planning and Zoning Commission work with developers experienced in the area of infill to assist with standards. The need for historic markers throughout the city to mark landmarks. Capitalize on the city's historic markers. Promote Denton during university event days such as Parents Weekend. 2. The Council received a report, held a discussion and gave staff direction regarding prioritizing outcomes for future work sessions. City Manager Conduff stated that the Council's "dreams" for Denton in 2025 indicated how the Council would like to proceed with DeMon's future. This meeting would provide Council with an opportunity to articulate their dreams, what Council would want to add/detract from the "story", and the key essences of the dreams. Council idemified the following 10 issues to look at in more depth in the coming year. Specific comments follow the topic and the dollar amount denotes the number of votes each issue received as a priority. Each council member was give $25,000 "DeNon Dollars" to spend on the issues. Dowmown $32,000 · Outreach was needed to hone the Council's vision for downtown with the rest of the community · Field trips needed to be taken · Research was needed on other communities who had "done the dream" · Look at infill development · History Attractiveness $29,000 · Dumpster issue City of DeNon City Council Minutes September 9, 2003 Page 2 · Everyday surroundings need to be beautiful (beauty was created, it did not just happen) · Landscaping · Public Views · Billboards VibraN Cultural Life $28,000 · Public music and art · History · MLK Road Sustainable Development · Infill · Redevelopment $18,000 o Neighborhoods $8,000 (even though by vote this issue would technically be #9 the Council waned to have Sustainable DevelopmeN and Neighborhoods back to back) · "Fair share of development" issues for the different parts of town · PreveNing urban blight · Redevelopment and preservation o GovernmeN Process $14,000 · In house vs. outsourcing · Incubating new leadership · Efficiency o EnvironmeN $13,000 · Tree ordinance- approve one and make it day to day business · Urban forestry specialist · Green space and open space · Cross timbers o Corridors, ENryways and City Facilities · DeNon's not much to look at from 1-35 · Use these as marketing tools · Use for economic developmeN $13,000 Conference CeNer/ Hotel/ Museum 13,000 · Need to look at public private partnership 10. Work with UNT on Research Park · · · · $6000 High quality business park Research facilities Need to elevate the conversation in the community University is well on the way to plans, City/Council vision needed to be included in the planning City of Demon City Council Minutes September 9, 2003 Page 3 (Council decided that the new Economic Development Board that would be in existence as of October 1st would play a major role in seeing that Council's vision was also at the planning table for this project. It would be more appropriate to address this at a lunch with the university than to have a planning session on it.) City Manager Conduff stated that these topics would be assigned to the available planning sessions for 2003-2004. With no further business, the meeting was adjourned at 6:30 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 16, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, September 16, 2003 at 5:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for September 16, 2003. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific item listed below. 1. The following was considered in Closed Meeting: mo Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Discussed and considered the status of legal issues concerning an Imerim 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 where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. Regular Meeting of the City of DeNon City Council on Tuesday, September 16, 2003 at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards Mayor Brock presemed the following proclamations: Constitution Week National Sickle Cell Awareness Momh Appreciation of Sgt. Danny Steadham City of DeNon City Council Minutes September 16, 2003 Page 2 B. September Yard-of-the-Month Awards Mayor Brock presented the September Yard of the Month Awards: Ross and Heather Appleton Bentley and Trish Parker Addy and Wilfred Sager Cindy Brugliera Linda Dudley Mrs. Jacqueline Lombardo Bill and Ann Ennis-Water Smart Dove Creek Animal Hospital - Commercial C. Recognition of staff accomplishments City Manager ConduffpreseNed staff accomplishments to the Council and audience. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: 1. David Weir regarding variance for maiNaining horses on property. Mr. Weir stated that he had complained about a neighbor keeping pigs on his property and as a result had a complain against his horse on his property. He felt 90% of the people in DeNon with animals were not in compliance with the ordinance separating animals from homes. He felt laws should apply equally to all and not to just those who complain. He requested a variance in order to keep his horse at his property. 2. Mike Phillips regarding preserving DeNon. Mr. Phillips asked Council to not give away one of Denton's most precious resources, the landfill space. He was shocked to learn that Denton was planning on allowing outside entities to bring materials to the landfill at a reduced cost. He felt it was a direct conflict with the City Charter to allow charges to individuals outside the city limits to be lower than what was charged residents. o Nell Yeldell regarding high utilities, drainage ditches, and the concrete plant. Ms. Yeldell felt that the City's utility charges were too high. ditches in the area needed to be cleaned out and taken care of. danger to the neighborhood. She also felt that the drainage The concrete plan was still a 4. CONSENT AGENDA Council Member Thomson asked that Item O be removed for separate consideration. City of DeNon City Council Minutes September 16, 2003 Page 3 Burroughs motioned, Kamp seconded to approve the Consent Agenda with accompanying ordinances and resolutions with exception of Item O. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Item O was considered. Council Member Thomason indicated that he and the Mayor needed to abstain from voting on this item as they were on the Board of Directors for Hope, Inc. Mayor Brock and Council Member Thomson left the meeting with a conflict of interest. Montgomery motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", and Redmon "aye". Motion carried unanimously. Mayor Brock and Council Member Thomason returned to the meeting. R2003-024 - A resolution by the City of DeNon, Texas, authorizing the City Manager to sign and submit an amendment to the 2003 Action Plan for Housing and Community DevelopmeN submitted in June 2003 to the U.S. DepartmeN of Housing and Urban Development with appropriate certifications, as authorized and required by the Housing and Community DevelopmeN Act of 1974, as amended and the Affordable Housing Act of 1990, as amended; and providing for an effective date. 2003-290 - An ordinance of the City Council of the City of DeNon, Texas approving the Third Amendment to that agreement between the City of Denton and the Denton Affordable Housing Corporation; authorizing the City Manager to execute the Third Amendment and to expend funds with respect to the Third AmendmeN; and providing for an effective date. 2003-291 - An ordinance of the City Council of the City of DeNon, Texas, authorizing the City Manager to execute the Second Amendment to that Agreement between the City of Denton and Denton City County Day School, Inc. for improvemeNs to the daycare facility at 1603 Paisley; authorizing the City Manager to expend funds with respect to the Second Amendment; and providing for an effective date. 2003-292 - An ordinance of the City Council of the City of DeNon, Texas, approving the guidelines for the ReNal Rehabilitation Program and eligibility criteria; authorizing expenditures in excess of $25,000 for projects meeting program guidelines and criteria; and providing for an effective date. 2003-293 - An ordinance authorizing the City Manager to execute a personal services agreement with Barbara T. McCall Associates, Inc. to provide certain information and services with regard to legislation of interest to the city. City of Denton City Council Minutes September 16, 2003 Page 4 Fo Approved a tax re,nd f°r the f°llowing pr0pe~y tax: ~a~ Reagon ~a~ ~ea~ ~oun~ 1. NeoRx Corporation Supplemental Change 2002 $4,526.61 Go R2003-025 - A resolution appointing members to the Board of Directors of the North Texas Higher Education Authority, Inc.; and declaring an effective date. Ho R2003-026 - A resolution of the City of Denton, Texas approving revised City Policy regulating dress code/personal appearance of City employees; and declaring an effective date. R2003-027 - A resolution of the City of Denton, Texas, approving revised City Policy regulating illness and off duty injuries of City employees; and declaring an effective date. Jo R2003-028 - A resolution of the City of Denton, Texas approving City Policy regulating incentive/recognition programs of City employees; and declaring an effective date. Ko R2003-029 - A resolution of the City of Denton, Texas approving revised City policy regulating use of tobacco products by City employees; and declaring an effective date. Lo 2003-294 - An ordinance accepting competitive bids and awarding an annual contract for the purchase of refuse bags; providing for the expenditure of funds therefor; and providing an effective date (Bid 3058 - Annual Price Agreement for Refuse Bags awarded to Dyna Pak Corporation in the amount of five cents per bag ($2.68/ro11) for an annual estimated amount of $80,400). Mo 2003-295 - An ordinance accepting competitive bids and awarding an annual contract for the purchase of multipurpose paper; providing for the expenditure of funds therefor; and providing an effective date (Bid 3060 - Annual Price Agreement for Multipurpose Paper awarded to Western Paper Company, Inc. in the amount of $1.80 per ream of paper ($18/carton) for an estimated annual amount of $28,800). No 2003-296 - An ordinance accepting competitive bids and awarding a contract for infant and Child Care Programs for Low-income Families, providing for the expenditure of funds therefor; and providing for an effective date (Bid 3069A - infant & Child Program for Low-income Families awarded to Fred Moore Day Nursery School, inc. in the amount of $39,000). Oo 2003-297 - An ordinance accepting competitive bids and awarding a contract for Self-Sufficiency Program for Low-income & Homeless Households, providing for the expenditure of funds therefor; and providing for an effective date (Bid 3070 - Self-Sufficiency Program for Low income & Homeless Households awarded to HOPE, inc., in the amount of $30,000). City of DeNon City Council Minutes September 16, 2003 Page 5 iD, 2003-298 - An ordinance accepting competitive bids and awarding a comract for Childcare Expansion Program for Low income Children, providing for the expenditure of funds therefor; and providing for an effective date (Bid 3071 - Childcare Expansion Program for Low-income Children awarded to DeNon Christian Preschool in the amoum of $30,000). Qo 2003-299 - An ordinance accepting competitive bids and awarding a comract for Daycare Program for Low-income Families; providing for the expenditure of funds therefor; and providing for an effective date (Bid 3072 - Daycare Program for Low-income Families awarded to DeNon City County Day School in the amoum of $38,000). Ro 2003-300 - An ordinance awarding a contract for the purchase of an automated tape library 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 3075 - Purchase of Automated Tape Library awarded to Eagle Software, inc. in the amoum of $64,441). So 2003-301 - An ordinance awarding a comract for the purchase of a RS6000 Server, computer hardware, operating system software, and first year annual maintenance 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 3076 - Purchase of RS6000 Server awarded to imernational Business Machines, inc. (iBM) in the amoum of $80,595.14). 2003-302 - An ordinance awarding a comract for the purchase of a Mitsubishi 50kVA Uninterruptible Power Supply and Distribution System 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 3079 - Purchase of Mitsubishi 50kVA Unimerruptible Power Supply and Distribution System awarded to DataCom Power, inc. in the amoum of $89,155). Uo 2003-303 - An ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Booziotis & Company Architects to provide architectural services for the renovation of the Civic Center and Emily Fowler Library; authorizing the expenditure of funds therefor and providing an effective date (RFSP 3030 in the amoum of $184,190). go 2003-304 - An ordinance approving the expenditure of funds for the purchase of the renewal of annual support maintenance for Denton Municipal Electric's Supervisory Comrol and Data Acquisition System (SCADA) available from only one source in accordance with the provision for state law exempting such purchases from requirements of competitive bids; and providing an effective date City of DeNon City Council Minutes September 16, 2003 Page 6 (File 3084 - Renewal of SCADA Maimenance Agreemem awarded to Advanced Comrol Systems in the amoum of $31,452). Wo 2003-305 - An ordinance of the City of DeNon, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Promotional Commercials from Comcast Advertising, Denton, Texas, pertaining to Denton Municipal Electric, which are available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 3085 - Comcast Advertising in the amoum of $41,028). Xo 2003-306 - An ordinance accepting competitive bids and awarding a comract for the purchase of an Inductively Coupled Plasma Mass Spectrophotometer (ICPMS); providing for the expenditure of funds therefor; and providing an effective date (Bid 3062 - Inductively Coupled Plasma Mass Spectrophotometer (ICPMS) awarded to Perkin Elmer Instrumems in the amoum of $121,637). Yo R2003-030 - A resolution allowing La Mexicana Restaurant to be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Event on September 27, 2003, upon certain conditions; authorizing the City Manager or his designee to execute an agreemem in conformity with this resolution; and providing for an effective date. go 2003-307 - An ordinance of the City of DeNon, Texas approving an amendmem to an Airport Lease between the City of Denton and John Kristoferson dated June 4, 2002; and providing an effective date. 2003-308 - An ordinance of the City of DeNon, Texas approving the conveyance of business assets of Avionics Imernational Supply, Inc. ("Avionics") a tenam at the Denton Municipal Airport and other entities co-located therewith to complete Aviation Supply Services Imernational Inc. ("Complete Aviation"); and approving an assignmem of a commercial airport lease dated December 19, 1995 from Avionics to H & J Building Emerprises, L.L.C. (H&J) and further approving of a ground sublease and separate lease of the improvemems thereon from H & J to Complete Aviation; and providing an effective date. BB. 2003-309 - An ordinance amending Section 6-27(b) of Chapter 6 Animals, providing an exception for Equestrian Developments; providing a penalty not to exceed $500; providing for a severability clause; providing a savings clause; providing for publication; and providing an effective date. CC. 2003-310 - An ordinance approving a change order to that certain Professional Services Contract between the City of Denton and Steven J. Kunkel and Associates, Inc., dated March 13, 2003 to provide real property appraisal services for acquisitions for the Clear Creek Imerceptor Sewer Line Project; and providing an effective date. City of Demon City Council Minutes September 16, 2003 Page 7 DD. 2003-311 - An ordinance of the City of Demon, Texas, authorizing the City Manager to execute the Swisher Road Waterline Extension Project Agreement between Swisher Road Water Supply Corporation, the City of Denton, Texas, Nortex Regional Planning Commission and Denton County, Texas; providing for the expenditure of funds therefor: and providing for an effective date. EE. 2003-312 - An ordinance of the City of Demon approving an agreemem in the amoum of $500.00 between the City of Demon, Texas and the Demon Holiday Festival Association, Inc. for the installation and maintenance of decorative lighting in the Downtown Square and related holiday activities; providing for the expenditure of funds therefore; and providing for an effective date. FF. R2003-031 - A resolution of the City Council of the City of Demon, Texas, requesting the Texas Municipal League oppose legislation that erodes a City's ability to charge an equal and uniform drainage fee; and providing an effective date. GG. R2003-032 - A resolution of the City Council of the City of Demon, Texas, requesting the Texas Municipal League oppose legislation that erodes a City's ability to impose an equal and uniform impact fee; and providing an effective date. HH. R2003-033 - A resolution of the City of Demon, Texas adopting the City of Denton's 2003 State Legislative Program for the 78th Third Called Legislative Session; providing a repealer; and providing an effective date. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City Council of the City of Denton, Texas, on first 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 a staff briefing on the proposal. The following ordinance was considered: FIRST READING AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, ON FIRST 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 City of Demon City Council Minutes September 16, 2003 Page 8 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, Thomson seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered adoption of an ordinance of the City Council of the City of Demon, Texas providing for the dismissal of TXU Gas Company's requested increase in rates in the event the Company fails to amend its Statement of Intent to remove increases for pipeline services from its requested distribution rates; and providing for an effective date. Mayor Brock and Council Member Thomason left the meeting with a conflict of interest. Herb Prouty, City Attorney, presented the details of the ordinance. The following ordinance was considered: NO. 2003-313 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS PROVIDING FOR THE DISMISSAL OF TXU GAS COMPANY'S REQUESTED INCREASE IN RATES IN THE EVENT THE COMPANY FALLS TO AMEND ITS STATEMENT OF INTENT TO REMOVE INCREASES FOR PIPELINE SERVICES FROM ITS REQUESTED DISTRIBUTION RATES; AND PROVIDING FOR AN EFFECTIVE DATE. Kamp motioned, McNeill seconded to adopt the ordinance. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Momgomery "aye", and Redmon "aye". Motion carried unanimously. Mayor Brock and Council Member Thomson returned to the meeting. C. The Council considered nominations/appointments to the Economic Development Partnership Board. Kamp motioned to nominate to the Mayor Brock and Council Member McNeill representing the City Council; Randy Robinson and Jerry Mohelnitzky represeming the Chamber of Commerce; Harry Krumpacker and Bob Haley representing top twenty City of Denton ad valorem or sales tax payers and Dr. Norval Pohl representing the University of North Texas. 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 appointing a voting delegate and alternate voting delegate to the National League of Cities Annual Congress of Cities. City of Demon City Council Minutes September 16, 2003 Page 9 Council Member McNeill nominated Mayor Brock and Mayor Pro Tem Burroughs. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. E. New Business The following items of New Business were suggested by Council for future agendas: 1. Council Member Redmon requested information on whether the current tree ordinance was enforceable while the new tree ordinance was being developed. 2. Council Member Burroughs requested a work session on the concept and implications of accepting outside trash to the landfill and the use of the money it would generate. 3. Council Member McNeill requested a summary of the comments made at the work session on changes to the solid waste ordinance to be made part of the public record. Fo Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda City Manager Conduff did not have any items for Council. G. There was no cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. H. There was no official action on Closed Meeting Item(s) under Sections 551.071- 551.086 of the Texas Open Meetings Act. With no further business, the meeting was adjourned at 7:35 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET October 7, 2003 Economic Development Mike Conduff SUBJECT Consider adoption of an ordinance of the City of DeNon, Texas, approving a service agreemem between the City of DeNon, 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 therefore; and providing for an effective date. BACKGROUND Council Member Perry McNeil has requested provision of funding to Our Daily Bread for their free noon meals and bus tokens to assist homeless and potemially homeless individuals. ESTIMATED PROJECT SCHEDULE The funding agreemem specifies that the expenditure of all funds should take place before August 30, 2004. PRIOR ACTION/REVIEW(Councils, Boards, Commissions) There was no prior action on the ordinance. FISCAL INFORMATION Funding of $1,500 to be expended under the agreemem is from comingency funds. EXHIBITS 1. Ordinance 2. Funding Agreement Respectfully submitted: Linda Ratliff Director of Economic Development Prepared by: Barbara Ross Community Developmem Administrator ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON APPROVING A SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND OUR DAILY BREAD-ST. ANDREW PRESBYTERIAN CHURCH IN THE AMOUNT OF $1500.00, TO PROVIDE EXPENDITURES FOR FREE MEALS AND FREE BUS TOKENS FOR LOW-INCOME PERSONS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Our Daily Bread-St. Andrew Presbyterian Church (the "Organization") serves an important public purpose by providing free meals and free bus tokens for low-income persons in the City of Denton (the "Program") as more fully described in that certain proposed Funding Agreement between the City and the Organization which is in substantial the same form as the agreement attached hereto and made a part hereof by reference (the "Service Agreement"); and WHEREAS, the City Council of the City of Denton hereby finds that the Service Agreement and the Program serve a municipal and public purpose and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Service Agreement and to carry out the duties and responsibilities of the City under the Service Agreement, including the expenditure of funds as provided in the Service Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ..... 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS/T.~G~AL FORM: HERB~~r~~ ATTORNEY BY: -- ~' EULINE BROCK, MAYOR FUNDING AGREEMENT BETWEEN THE CITY OF DENTON AND OUR DAILY BREAD - ST. ANDREW PRESBYTERIAN CHURCH This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and Our Daily Bread - St. Andrews Presbyterian Church, a non-profit organization, hereinafter referred to as "Organization"; WHEREAS, City has determined that the Organization will perform an important public service for the residents of Denton without regard to race, religion, color, age or national origin through the provision of free noon meals and bus tokens to persons who are homeless and other low- income persons; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: 1) Preparation and serving of free noon meals, Monday through Friday. 2) Provision of transportation assistance through the distribution of free bus tokens to low-income individuals. II. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: A. The funds provided for in this agreement shall only be expended for the purposes set forth in Article I above, subject to Section IV.A. and for no other purpose. B. The Organization shall expend the funds in a manner that will allow for a tracing of funds and a review of the specific expenditures for which the funds were utilized. C. The Organization shall permit authorized officials of City to review its books at anytime. D. The Organization will reduce to writing all of its roles, regulations, and policies relating to the operations of Our Daily Bread and file a copy with the Community Development Division along with any amendments, additions, or revisions whenever adopted. E. The Organization shall not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. As funds are expended, the Organization shall provide documentation in the form of cancelled checks and corresponding receipts detailing expenditure. G. The Organization shall appoint a representative who wilt be available to meet with City officials when requested. H. The Organization shall indenmify and hold harmless City from any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. I. The Organization shall submit to City copies of year-end audited financial statements. J. The Organization will provide quarterly reports to the City regarding the number of persons served by Our Daily Bread. Reports will include any available demographic information on clients served under the meals and transportation programs. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: September 1, 2003 through August 30, 2004, unless the Agreement is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO ORGANIZATION. City shall pay to the Organization the sum of$1500.00 to be used solely for the purposes set forth in Section I above. B. ExcEss PAYMENT. Organization shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Organization; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. C. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance City hereby reserves the right to reappropriate or recapture any such under expended fimds. If City finds that Organization is unwilling and/or unable to comply with any of the terms of this Agreement, City may require a refund of any and all money expended pursuant to this Agreement by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten worldng days of a written notice to Organization to revert these fmancial assetS. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Agreement. D. AGREEMENT CLOSE OUT. Organization shall submit the Agreement close out package to City, together with a final expenditure report, for the time period covered by the last invoice representing final expenditure of funds under this Agreement, within fifteen (15) working days following the close of the Agreement period. Organization shall utihze the form agreed upon by City and Organization. V. EVALUATION Organization agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Organization agrees to make available its financial records for review by City at City's discretion. In addition, Organization agrees to provide City the following data and reports, or copies thereofi A. All external or internal audits. Organization shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or intemal evaluation reports. C. Until such time as all disbursed funds have been expended and all document submissions are complete, the Organization agrees to submit quarterly financial statements in July, October, January, and April. Each statement shall include current and year-to-date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Quarterly financial reports shall be submitted to the City within 15 working days after the quarter has been completed. E. An explanation of any major changes in program services. F. To comply with this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. G. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, Organization shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Organization understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of organization's governing body shall be available to City within ten (10) working days of approval. VII. SUSPENSION OR TERMINATION A. The City may terminate this Agreement for cause if the Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the organization's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. B. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, organization will be paid an mount not to exceed the total amount of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount that bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Organization shall comply with all applicable extual employment opportunity and affirmative action laws or regulations. B. Organization wili furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Organization's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and organization may be barred from further contracts with City. IX. WARRANTIES ORGANIZATION represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Organization. C. No litigation or legal proceedings are presently pending or threatened against Organization. D. None of the provisions herein contravenes or is in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. E. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. Organization cannot significantly change the nature, intent, or scope of the program funded under this Agreement without the prior written approval of the City. C. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. D. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least thirty (30) calendar days in advance of the change. E. Organization shall notify City of any changes in personnel or governing board composition. F. It is expressly understood that the transfer of funds between or among programs of the Organization will not be permitted. XI. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. B. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, its agents or employees. XII. CONFLICT OF EqTE~ST A. Organization covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Organization further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Organization further covenants that no member of its governing body or its staff, subcontractors or empl°yees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, parmership, or association in which he has direct or indirect interest. XIII. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Organization, or is a member of Organizatioffs goveming board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-chid, half-brother and half-sister. XIV. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, remm receipt requested, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Atto: City Manager 215 E. McKinney Denton, TX 76201 Our Daily Bread - St. Andrew Presbyterian Church Attention: George Gibson, Director 300 W Oak Street Denton, TX 76201 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XV. MISCELLANEOUS A. Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any fight, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. 7 D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing roles, codes, laws, ordinances, or regulations, City as the party ultimately responsible for matters of compliance, will have the final authority to render or to secure an interpretation. F. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation conceming this Agreement shall be in a court of competent jm'isdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the ~ day of ,2003. CITY OF DENTON, TEXAS BY: MICHAEL A. CONDUFF,CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVEr AS T.T~O LEGAJ/FORM: HERBERT ~TTORNEY OUR DAILY BREAD- ST. ANDREWS PRESBYTERIAN CHURCH ATTEST: BY: George Gibson Director BY: ORGANIZATION SECRETARY AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: October 7, 2003 Utility Administration Howard Martin, 349-8232 SUBJECT Consider the adoption of 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. BACKGROUND In response to public security concerns related to the terrorist's attacks of September 11,2001, Congress and Presidem Bush passed the Public Health Security and Bioterrorism Act (H.R 3448) on June 12, 2002. Under this legislation, all public water supply systems are required to conduct an assessment of the vulnerability of its system to intentional acts designed to substamially disrupt the ability of the subsystem to provide a safe and reliable water supply of drinking water. These Vulnerability Assessmems (VAs) are required by the Bioterrorism Act and the Environmemal Protection Agency (EPA) is charged with the implememation of the compliance program. The EPA's schedule for water systems to have completed its VA is based upon the size of the water system. To facilitate providing the maximum protection to the largest number of the water system customers as quickly as possible, the larger water systems were required to complete the VAs on the most accelerated schedule as follows: Population VA Completion Deadline Greater than 100,000 50,000 to 100,000 3,300 to 50,000 March 30, 2003 December 31, 2003 June 30, 2004 In addition to completing the VAs, each water system is also required to prepare or revise their Emergency Response Plan (ERP) and submit certification to the EPA this has been done within 6 months of completing its VA. Federal assistance was provided in the form of grants to help fund VAs for water systems with populations greater than 100,000 but unfortunately there is no federal funding authorized for the remaining water systems. Denton's Water Utility will be required to complete it's VA by December 31, 2003 and will need to certify compliance with revising their ERP by June 30, 2004. DeNon selected Freese and Nichols, Inc. (FNI) to help prepare their VA and revise their ERP for the following reasons: 1 · FNI has conducted more VAs for the large water systems (population greater than 100,000) in Texas than any other consulting firm. · FNI has recently assisted the City of Denton Water Utilities Department in the design and construction of the Lake Ray Roberts Water Treatment Plant and also prepared the Risk Managemem Plan (RMP) for this facility. · FNI was the engineering firm that designed the existing Lake Lewisville Lake Pump Station and Water Treatment Plant. · FNI has record drawings on file on all of the above referenced facilities for use in this VA/ERP project. The fees outlined in the proposal are summarized below: Vulnerability Assessmem Emergency Response Plan $ 50,000 $ 20,000 Total Fee $ 70,000 OPTIONS 1. Approve the professional services proposal for the Water Vulnerability Assessmem and Emergency Response Plan as submitted. 2. Recommend desired changes to the proposal for consideration by staff and request renegotiations with Freese & Nichols, Inc. 3. Try and complete the VA and ERP using staff resources. RECOMMENDATIONS Staff recommends approval of the professional services proposal as negotiated by staff and submitted by Freese & Nichols, Inc., and approved by the Public Utilities Board PRIOR ACTION REVIEW (COUNIL, BOARDS, COMMISSION) City of Denton PUB approval of the Professional Services Agreement for the Water Vulnerability Assessmem between the City of DeNon and Freese and Nichols, Inc. - September 15, 2003. (Exhibit 3). ESTIMATED SCHEDULE OF PROJECT The deadline for completing the VA is December 31, 2003. The ERP must be completed within six momhs of filing the VA. The currem schedule for the project is as follows: 1. Project Coordination / Kickoff Meeting: October 2003. 2. Conduct site visits and determine critical facilities and design basis threats: October 2003. 3. Develop draft VA for staff review: November 2003. 4. Submit final VA to City of Denton and summary report to the EPA: December 2003. 5. Meeting with Local Emergency Planning Committee (LPCE): January 2004. 6. Idemify emergency incidems for developmem of incidem specific emergency response plans: February 2004. 7. Develop draft ERP for staff review and LEPC review: March 2004. 8. Submit final ERP to City of DeNon: May 2004. 9. Submit certification to the EPA that the City has completed the ERP. This schedule is consistem with the deadlines established by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. FISCAL INFORMATION Funding for the project will be through the use of FY 2004 O&M Budget funds from Water Production and Water Administration. EXHIBITS 1. Ordinance 2. Professional Services Agreement 3. September 15,2003 Public Utilities Board Meeting Minutes Prepared by: Timothy S. Fisher, P.E. Assistam Director of Water Utilities Respectfully submitted: Jim Coulter Director of Water Utilities ORDINANCE NO.-2003- AN ORDINANCE OF THE 'CITY OF DENTON, 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 ASSESSMENT AND A WATER UTILITY EMERGENCY'RESPONSE. PLAN; AUTHORIZING THE EXpENDITURE OF FUNDs THEREFOR; AND PROVIDING ANEFFECTIVE DATE. WHEREAS, the City Council' deems that it is in the public interest to engage Freese and Nichols, Inc., a Corporation OF&N),' of'Fort Worth, Texas, to. provide professional engineering services for the City pertaining to.the completion of a Water Utility Vulnerability Assessment and a Water Utility .Emergency Response Plan, as is required by Federal law; and WHEREAS, the City staff· has' reported to the City Council'that there is a substantial need for the above-referenced professional consulting services, and that limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, 'Chapter .2254 of the Texas .GOvernment Code; known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOw THEREFORE, " THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION l: That the City Manager is hereby authorized to execute a "Professional ServiCes Agreement For Professional Engineering Services" with-Freese and Nichols, Inc., a Corporation} of Fort Worth, Texas; for professional engineering services pertaining, to the completion of a Water Utility Vulnerability Assessment and a Water Utility Emergency Response Plan; in substantially the form of the Professional Services Agreement attached hereto as Exhibit "A," and incorporated herewith bY reference. SECTION 2: That the award of this Agreement by the City is on the basis of the continued demonstrated competence, knowledge,- and qualifications of F&N and the continued demonstrated ability of F&N to perform the services needed by the City for a fair and reasonable price. SECTION3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. EXHIBIT 1 PASSED AND APPROVED this the __day'of , . ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL-FORM:' HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documents\Ordinances\03~F&N Engineering PSA-Water Utility Studies-2003.doc STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES THIS AGREEMENT is made, entered into; and effective as of the __ day of October, 2003, by and between the City of Denton, Texas; a Texas Municipal Corporation, with its principal offices at 215 East McKinney Street,. Denton, Texas. 76201 (hereinafter "OWNER"); and FREESE AND NICHOLS, INC., a Corporation, with its offices at 4055 International Plaza, Suite 200, Fort Worth, Texas 76109-4895 (hereinat~er'"CONSULTANT"); the parties acting herein by and through their respective duly-authOrized rePreSentatives and officers. WlTNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows: . ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby cOntracts with CONSULTANT, as an indePendent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project'as stated in the Articles to follow, with diligence and in acc. ordance with the. professional standards custOmarily obtained for such services in the State of Texas. The 'professional services set forth herein are in connection with the following described project (the "Project"): Providing professional engineering services pertaining to the completion of the City of Denton, Texas Water Utility Vulnerability Assessment (utilizing RAM-W) and a Water Utility Emergency Response Plan. These assessments are required by Federal law. Under the:H.R. 3448 Bioterrorism Act signed into law in June 2002 (P.L. 107-188) each community water system serving a population of greater than 3,300 is required to conduct an assessment of the vulnerability of its system to intentional acts intended to substantially disrupt the ability.of the system to provide a safe and reliable supply of drinking water. In addition, each community water system serving a population greater than 3,300 is required' to prepare or revise where necessary, an emergency response plan. As such, a Vulnerability Assessment and an updated Water Utility Emergency Response Plan is needed to plan response to an intentional attack on the public water system. Furthermore; the 78th Legislature of the State of Texas has recognized the need for such plans, having enacted HB9, which became effective SePtember 1, 2003. This provision, Subchapter H, Chapter 418, Texas Government Code, pertains to confidentiality of certain information relating to risk or vulnerability assessments, such as the type of assessment to be rendered-by CONSULTANT herein, among other things. It further pertains to confidentiality of certain information :relating to critical infrastructure and for certain information prepared for the united States. EXHIBIT 2 Page 1 ofll ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following Basic Services in a professional manner: A. To p~rfonn ail those services as are set forth in the CONSULTANT's "Scope of Services and Responsibilities of Owner" fo the City of Denton, Texas contained in that. certain seven (7) Page attachment (Attachment SC) from CONSULTANT. to OWNER, which attachment is appended hereto as Exhibit "A" and is incorporated herewith.by reference. If there is any conflict that.arises between ithe terms of this Agreement and the Attachment SC, :Exhibit "A" attached to this Agreement, then the terms and conditions of Exhibit "A" shall control over the terms'and conditions of this Agreement. ARTICLE m ADDITIONAL SERVICES Any Additional Services to be performed by CONSULTANT, if authorized by OWNER, which are not included as Basic Services in the above-described Scope of Services,. set forth in Article II above, shall be lateragreed-upon by OWNER andCONSULTANT, who shall determine, in Writing, the scope of such Additional' Services, the amount of comPensation.for such additional services~ and other essential terms pertaining to the provision of such Additional Services by CONSULTANT. A partial listingofpossible Additional Services, are set forth on pages SC-4 and SC'-5 of Exhibit "A" which is appended hereto and incorporated by reference herewith. ARTICLE IV PERIOD OF SERVICE The parties hereby agree that .in any.event, this'Agreement shall 'be effective as of the date of approval of this Agreement-by the City Council.' Work shall then.commence upon the issuance of a notice to proceed to CONSULTANT by the OWNER. This Agreement shall remain in force for the period which may reasonably be required for the. completion of the Project, including Additional Services, if any, and any required extensions approved by. the OWNER; or until exhaustion of all of the funds provided for herein; or until SePtember 30, 2004, whichever event shall first occur. This Agreement may be sooner terminated in accordance with the provisions hereof. TIME IS OF THE ESSENCE IN THE PERFORMANCE AND COMPLETION OF THIS AGREEMENT. CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as Possible and to 'meet the schedule(s) reasonably established by the OWNER, acting through its Director of Water Utilities or his designee. ARTICLE V COMPENSATION go COMPENSATION TERMS: 1. "Direct Non-Labor Expense" is defined as that expense [other than "per diem" expense], based upon actual' cost plus ten (10%) percent, for any out-of-pocket expense Page 2 ofl 1 Co reasonably incurred by the CONSULTANT related to its performance of this Agreement, for long distance telephone charges, telecopy charges, messenger services, printing.and reproduction expenses, out-of-pocket expenses for purchased computer time, prudently incurred.travel expenses related to the work on the Project, and similar incidental-expenses incurred in connection with the ProjeCt. BILLING AND PAYMENT: For and in ConsideratiOn of the professional services to be performed by CONSULTANT herein, OWNER.agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks 'set forth 'in the Scope of Services as shown in Article II above; as follows: 1. : CONSULTANT shall perform its work-on this Project on a lump-sm fee basis, based upon the percentage of completion of the Project, plus reimbUrSement 'for all reasonably incurred out-of-pocket expenses, billed monthly, or for longer periods of time. CONSULTANT shall bill from the rates and subject to the terms set forth in CONSULTANT's "Probable Cost Estimate" which is contained in Exhibit '..'B." OWNER shall pay to CONSULTANT for its professional services performed, and for its out-of pocket- expenses incUrred in the'Project, a total lump-sum or turnkey amount of $70,000. 2. Partial payments to the CONSULTANT will be made monthly based onthe percent of actual completion of the Basic Services, rendered to and approved by the OWNER through its Director, of Water Utilities or his designee. However, under no circumstances shall any monthly statement for services exceed the value of the work perfOrmed at the time a statement is rendered. The OWNER may withhold the final ten (10%) percent of the above lump-sum or tumkey~ amount until satisfactory completion of the Project by CONSULTANT. 3. Nothing contained in this Article shall require the OWNER to pay for any work that is not submitted, in comPliance with 'the terms of this Agreement. OWNER shall 'not be required to make any payments to CONSULTANT at any time when CONSULTANT is in default under this Agreement. 4. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement-which would require additional payments by the OWNER for any charge, expense or reimbursement above the not-to-exceed amount as stated hereinabove, without first, having obtained-the prior written authorization of the OWNER. CONSULTANT shall not proceed to perform any services to be later provided for under Article 11I. "Additional Services" without first obtaining prior written authorization from the OWNER. ADDITIONAL SERVICES: .For Additional Services authorized in writing by the OWNER in Article llI. hereinabove, CONSULTANT shall be paid based on a to-be-agreed- upon Schedule of Charges. Payments for AdditiOnal Services shall be due and payable upon submission by the CONSULTANT, and shall be in accOrdance with Exhibit "B" attached hereto, and Article V.B. hereinabove. Statements for Basic-services and.any Additional Services shall be submitted to OWNER no more frequently than once monthly. D. PAYMENT: If the OWNER fails t° make payments due the CONSULTANT for services and expenses ~within' thirty (30) days after receipt of the CONSULTANT's undispUted statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%)per month fi:om.and after the said thirtieth (30th) day, and in addition, thereafter, the CONSULTANT may, after giving ten (10) days written notice to the oWNER,. suspend services under this Agreement until the cONSULTANT has been paid in full for all amounts then' due and owing, and not disputed by OWNER, for services, expenses and chargeS. Provided, however, .nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set. forth herein; if the OWNER reasonably determines.that the CONSULTANT's work is not submitted in accordance with the terms of this' Agreement, in accordance with ArticleV.B. of this Agreement, and oWNER has~ : promptly notified .CONSULTANT of that fact in-writing.. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT 'will exercise reasonable care and due diligence, in discovering and promptly rePorting to the OWNER any defects or deficiencies in the work of CONSULTANT. ARTICLE VII OWNERSHIP OF DOCUMENTS Ali docUments prePared Or furnished by the CONSULTANT pursuant t° this Agreement are instruments of service and shall become the p~operty of the OWNER upon .the termination of this Agreement. The CONSULTANT shall only issue documents or rePorts prePared hereunder to the entities specifically' designated bY~ OWNER in writing. The CONSULTANT understands and agrees to keeP all information supPorting, as well as the documents and the rePort itself, confidential. In the event that a Public InformatiOn Request is made, under Texas law, for disclosure of such documents and rePorts, CONSULTANT agrees t° immediately contact OWNER, and agrees to withhold disclosure of said documents, Pending action by OWNER's Legal DePartment.. CONSULTANT shall retain copies of all sUCh documents and rePorts in a secure and confidential manner for a period of Seven (7) years following the date of issuance of the rePort. The docUments prePared and furnished by the CONSULTANT are intended only to be applicable to this project and OWNER's use of these docUments in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses the Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this Agreement, CONSULTANT. is released fi'om any and all liability relating to their use in that project. · ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an indePendent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising, fi:om employee status. Page 4 of 1'1 ARTICLE IX ., INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys and employees from and against any and all liability, claims, demands, damages,-losses and 'expenses, including but not'limited to court costs and reasonable attorney fees incurred by the OWNER, and including without limitation damages for bodily and personal injury, death, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, attorneys and employees in the execution, oPeration, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim~- cause ~of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE X INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed.to do business in the State of Texas by the Statelnsurance Board or any successor agency, that has a rating with A: M: Best Rate Carders of at least an "A-" or above: A. Comprehensive General Liability ..Insurance with bodily .injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits- of not .less than $100,000 for each occurrence and not less than $100,000 in the aggregate. Bo Automobile Liability Insurance with bodily injury limits of not less than $1,000,000 for each person and not less than $1,000,000 for each :accident and with property damage limits for not less than $100,000 for each accident. C° D° Worker's Compensation Insurance .in accordance with statutory requirements, and Employer's Liability Insurance with limits of not less than $100,000 for each accident. Professional Liability Insurance or appropriate Errors & Omissions Insurance with limits of not less than $1,000,000 annual aggregate. Eo CONSULTANT shall furnish insurance certificates or insurance policies at the-OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies to the extent that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to OWNER and CONSULTANT. In such event,~the CONSULTANT shall, prior to the effective 'date of the chahge~or cancellation, of coverage, deliVer copies of any such substitute policies, fumishing at teast the same policy limits and coverage, to OWNER. Page 5 of 11 ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties will make' efforts to settle any disputes arising .under .this Agreement by submitting the dispute to'arbitration or other means of alternate dispute resolution such as mediation. However, no arbitration or other form of alternate dispute resolution ahsing out of, or relating to this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. Ao ARTICLE XII TERMINATION OF AGREEMENT Notwithstanding any Other provision of this Agreement, either party, may terminate this Agreement bypioviding thirty (30) days advance written notice to the~other party. Bo This Agreement may alternatively be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons Specifying the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately'cease all services upon receipt of the written notice of termination fi:om OWNER, and shall render a'final bill for services to the OWNER within twenty (20) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed,.and for reimbursable expenses prior to notice of termination being received by CONSULTANT; inaccordance with Article V. of this Agreement. Should the OWNER subsequently contract.with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant. If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to turn over the Project to a new consultant. CONSULTANT, shall turn over all documents prepared or furnished by CONSULTANT 'pursuant to' this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its files. ARTICLE XIII. RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its '°fficers, employees, or agents~ for the accuracy and competency of their work performed pursuant to this Agreement; nor shall such approval by the oWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its principals, officers,' employees, and agents. . · 'Page 6of 11 ARTICLE XIV NOTICES All notices, communications, and .rep0rts required or permitted under this Agreement shall.be personally delivered to; or telecopied to; or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, postage prepaid, certified mail, return receipt requested, unless otherwise specified herein. To CONSULTANT: To OWNER: Freese and Nichols, Inc. Tina E. Hanson, P.E. 4055 International Plaza, Suite 200 Fort Worth, Texas 76109-4895 Fax: (817) 735-7492 City of Denton, Texas Michael A. Conduff, City Manager 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8596 All notices under this Agreement' shall be effective upon their actual receipt by. the party to whom such notice is given; or three (3) days after mailing of the notice, whichever event shall first. occur. ARTICLE XV :' ENTIRE AGREEMENT This Agreement consisting of eleven (11) pages and two' (2) exhibits thereto, constitute the complete and final expression of the Agreement of the parties and is intended as a complete and exclusiVe statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may havebeen made in connection with the subject matter of this Agreement. ARTICLE XVI SEVERABmITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable firom the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such' event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any sUch stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS CONSULTANT shall comply with all federal,, state, local laws,: roles, regUlations, and ordinances applicable to the Work performed by CONSULTANT hereunderi as they may now read or as they may' hereafter be amended. · '. :Page 70fll' · ARTICLE XVIII : DISCRIMINATION PROI-I~ITED In performing'the services required hereunder, CONSULTANT shall not discriminate against any person 'on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL CONSULTANT represents that it has or will secure at its own eXPense all personnel required to.perform all the services required under this Agreement. Such personnel-shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, Or which may arise during the term of this Agreement. Bo OWNER requires that .CONSULTANT carefully safegUard all documents, data, and information provided by OWNER to CONSULTANT incident to this engagement. CONSULTANT recognizes that such documents; data; and information; involve highly sensitive, competitive issues; in some cases, confidential information; and in some cases Proprietary information; and the disclosure of such information by CONSULTANT to any third party, without the express written consent of OWNER, is expressly prohibited by OWNER, and would likely cause actual harm, economic loss and detriment to OWNER. Any such .unauthorized disclosure oflnformation by CONSULTANT shall constitute an act of default reSPecting this Agreement. CONSULTANT .represents to OWNER that it will safeguard OWNER's information and will, upon OWNER'S reasonable request, provide OWNER with CONSULTANT'S policies regarding the confidentiality of studies, such .as the vulnerability assessment provided for herein, its procedures for identifying conflicts of interest, and its procedures and safeguards which are in 'place which would, apply to CONSULTANT'S treatment and handling of OWNER'S documents, data, and information during this engagement. Co All services required hereunder will be performed by CONSULTANT or under its direct supervision. All'perSonnel engaged in performing the work provided for in-this Agreement, shall be qualified, and shall be authorized and permitted under applicable state and local laws to perform such services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER. CONSULTANT. shall promptly :notify OWNER of any change,of its name as well as of any material change 'in its corporate structure, its locatiOn, and/or in its operations. Page 8 of 11'' ARTICLE xxi MODIFICATION No waiver or modification of this Agreement or'of any covenan!, 'condition, limitation herein contained shall be valid unless in writing and duly executed by .the Party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting .this Agreement, or the rights or obligations -of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXII MISCELLANEOUS ho CONSULTANT agrees that OWNER shall, until the expiration of three (3) years 'after the final payment made by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the coNSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate'working space in order to conduct examinations or audits in compliance with this Article. OWNER shall give-CONSULTANT reasonable advance notice ofall intended examinations or audits. Bo Venue of any-suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. C; For purposes of this ~Agreement(the parties agree that Tina E. Hanson, P.E. ("Hanson'') shall- serve as the Project Manager of CONSULTANT respecting this engagement.~. This Agreement has been entered into with the understanding-that Hanson shall serve as the CONSULTANT's Project Manager and will be the key person serving the OWNER on this Project. Any proposed changes requested by CONSULTANT, respecting Hanson serving as the Project Manager on the Project, shall be subject to the approval of the OWNER, which approval the OWNER shall .not unreasonably withhold. Nothing herein shall limit CONSULTANT from using other qualified and competent members of its finn to perform the other services required herein, under its superVision or control. Do CONSULTANT shal!~commence, carry on, and complete its work on the Project with all applicable dispatch, ~and in a sound, economical, efficient, and confidential manner, and in accordance with the provisions hereof. In accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carded' on by the OWNER. Eo The OWNER shall assist and fully cooperate with CONSULTANT by placing at the CONSULTANT's disposal all available infOrmation .Pertinent :to the Project, including previous reports, any other data relative to the .Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, Public and private property as required for the CONSULTANT to perform professional services under thiSAgreement. · Page 9 °f'l 1 ~ OWNER and CONSULTANT agree' that CONSULTANT is entitled to rely upon background information furnished to it by OWNER without the need for further inquiry or investigation into such informatiOn. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has execUted this Agreement in four (4) original counterparts, by and through its duly authorized City Manager; and CONSULTANT has executed this Agreement by and through its duly authorized undersigned officer, on this the day of October, 2003. C1TY OF DENTON, TEXAS A Municipal Corporation ATTEST: JENNIFER WALTERS, CITY SECRETARY By: By: Michael A. Conduff, City Manager APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: "CONSULTANT" FREESE AND 1NqCHOLS, INC. A Texas Corporation Page 10 of 11 ATTEST: Secretary S:\our Docurnents'Contracts~03~F&N PSA for Water system Vulnerability Assessment 2003.doc Page 11 of 11 - . EXI~B1T A SCOPE OF SERVICES AND RESPONSIBILITIES 'OF OWNER This is an"exhibit attached to, made'a part-of and incorporated by reference into the Agreement between CITY OF DENTON (OWNER) and. Freese' and Nichols, Inc. (FNI)providing for professional engineering services. Under the H.R. 3448 bioterrorism act signed in June 2002 (P.L. 1'07'-! 88). each community Water system serving a. population greater than 3,300 is required to conduct anassessment of the vulnerability of its system to.intentional acts intended to substantiallY disrupt the ability of the system to provide a safe and reliable supply'of drinking water. In addition, each community water system serving a population greater than 3,300 is required to prepare or revise where necessary, an emergency response plan. As such, a VulnerabilityAssessment and an updated Water Utility Emergency Response Plan is needed to plan response to an intentional attack on-the public water system. FNI will prepare a Water Utility Vulnerability Assessment utilizing- RAM-WsM and a Water Utility Emergency Response Plan as follows: I. BASIC SERVICES: FNI shall render'the following professional services in connection with the development of the Project: . A. PROJECT PLANNING Upon executionof this AGREEMENT, FNI shall: 1. Consult with'OWNER to: (a) review the scope of services, (b) Verify. OWNER's requirements for the Project, (c) defmepurpose, mission,: goals, issues, and objectives Of the Project, (d) review utihty~ system maps, (e) discuss computerized monitoring and control, (f) discuss current'utility secUrity and emergency response. planning, (g)discuss current utility emergency response planning, (la) discuss historical/existing data related to utility threats, vandalism, theft, and emergency response incidents, ahd (i) identify critical customers. Review current utilitY security survey andemergency responseplan, if available. The information, assessments-and plans developed herein-as part of the Project, shall be held confidential and its integrity protected through appropriate information protection strategies and protocols. Develop document and' file (electronic and paper file) security and control plan arid protocols. Implement plan and protocols with OWNER's personnel and FNI. B. DATA DEVELOPMENT Obtain utility system maps, studies, and facility construction plans from OWNER. Develop utility system schematic and document Utility operation information. Obtain-available information such as City and utility organizational structure, emergency response organizational structure and incident command system; interlocal agreements and contracts for emergency services; current City and utility emergency communication system; and other resources for emergency response. Conduct Planning workshop with OWNER's staffto verify utility system mission, prioritize facilities, identify and prioritize undesirable consequences of system malfunction, and identify design basis SC-1 OWNER threat. A total of one (1) - 6 hour maximum planning Workshop is budgeted. Additional workshops can be conducted. Based on the discussion and information obtained from the OWNER's staff; a Identify'important mission/functions of. the utility system. b Identify acceptable level of performance (pressure, capacity~ service area, quality, and critical' customers). c Identify undesirable consequences (such as economic loss, duration of loss, .populati°n impacted, loss of fire protecfion,'and environmental) that could affect the missions/functions. Prioritize consequences. d Review system inten'elationships and interdependencies (power/electrical, SCADA, chemical delivery, manpower). e Determine and prioritize the critical facilities that need to be protected to minimize the impacts 0fthe undesirable consequences based on capacity, population served, critical customers, water pressure,.dfinldng water quality, and receiving stream water quality. f Identify malevolent acts that cOUld reasonably cause the undesirable consequences such as: (1) Loss of critical function and/or major service disruption, (2) Intentional attack on public safety via Utility assets, contamination of the water supply, and chemical releases-or chemical theft. Select and characterize up to three design basis threats such as insider threat; Outsider threat, and cyber threat. The three design.basis threats shall be based on available 'information from local law enforcement, the Environmental Protection Agency, and the Federal Bureau o~f InveStigation. Develop draft facility prioritization and draft consequence criteria. '" Conduct a systematic site characterization of the Water system by conducting up two site visits with" OWNER's personnel to the OWNER's critical facilities. A total of twelve (12)hours plus travel time is budgeted for site characterizations. Additional site characterizations can be conducted if needed as an additional service. All facilities that will be'ehhraeteriZed shall under the jurisdiction of the City of Denton. Document site visits with. digital photos. Collect performance data at each site (when applicable) On: a -Important facilities, processes, and assets; Develop site plans and functional schematics for each site. Identify equipment capacities. b Neighborhood character and adjacent facilities. ' c Personnel. assignmentS and personnel hours. d System interrelationships and interdependencies (power/electrical, SCADA, chemical delivery, manpower). e Main transmission piping at the facility being investigated. Identify system redundancies and primary valving locations for system isolation. Transmission piping of the distribution system is not included. f Identify current security and monitoring' system for chemical feed system, storage and handling if applicable. g Power supply and communications system. ~ h Physical protectitn and security system features of deterrence, detection, delay, and response. SC-2 OWNER Security policies and procedures and compliance with same. Entry contrOl for visitors, deliveries, contractors, and Vendors and quantity of same. Response time for local !aw enforcement and emergency services. Construction site security and temporary water metering procedures. System monitoring, testing of chemicals,'~eal time monitoring. 7. Conduct and docUment'systematic characterizatiofi of the Supervisory Control and Data Acquisition (SCADA) system .by-identifying cyber protection features if applicable'. Develop SCADA system architecture-diagram based on information provided by OWNER. Identify netWork cOnnections. b The review will include a preliminary investigation of the use of firewalls, proxy servers and 'other security or intrusion-detection deVices used to prevent unauthorized access to equipment and data. c . Hackers and unauthorized persons can disruptutility department °Perations. Several -areas will be investigated to determine exposure. A Port scan can be ~onducted to determine data routes available to intruderS, if needed. The use ofroutable and non- routable Internet protocol (IP) addresses will be studied to identify exposed systems. -The level of security patches, encrypfion schemes and Security logging will be investigated. d Computer information access will be reViewed, including passwOrd policies, file and folder pem-dssions, user/group priVileges and equipment/data access: e Identify physical protection featUres suth as prOtection of physical cabling, network equipment protection; PC protection, and SCADA equip'meEt protectiOn. WATER'SYSTEM VULNERABILITY ASSESSMENT , 1. Utilizing up to six critical facilities and 'up to three .-design basis threats, conduct vulnerability assessment. Selection Will be based on the available information and,the OWNER's input. 2. Project how the. malevolent acts might be conducted (adversary Strategy) Such as system contamination (chemical, biological, and radiological); physical damage, cyber attack on the SCADA or other process control systems~ .or interdependency disruptions (power/electrical, chemical delivery, and transportation' systemS). 3. Based on available information from the Environmental prOtection Agency and the Federal Bureau of Investigation, assess the likelihood (qualitative probability i.e. high, medium, or low) of each design basis threat(terrorist, insider, former employee, determined vandal, casual vandal). 4. Identifycritical system assets at each Critical facility. Approximate the consequences of losing each critical asset and potential ways to access critical assets. Prioritize critical assets based on relative consequences. 5. Evaluate physical and operational prOtection system effectiveness at each critical facility. Estimate relative system effectiveness. 6. Develop matrix and assign relative/qualitative values to: likelihood of attack (if data is available), degree of vulnerability (effectiveness of security system),~and consequences for each critical asset for each design basis threat. 7. Define risk for each critical'asset based on results of matrix (risk = probability x vulnerability x consequence). 8. Summarize the selected most critical assets (targets) in the water system, summarize interrelationships within other assets in the system, summarize the consequences of malevolent acts that could be SC-3 OWNER directed against them, and evaluate effectiveness of both~ existing and recommended protection systems. Provide recommendations ['or system improvements. Prepare an interim report outlining recommendations. 9. Conduct an .interim progress-meeting with OWNER,s staff to discuss contents the results of the vulnerability assessment and to'discuss options'for system improvements. A t~)tai of one (1) interim progress meeting is budgeted. Additional meetings, if needed, Will be billed as an additional service; In particular, surveillance and distribution system monitoring equipment options will be discussed in detail. 10. Prepare an opinion of probable cos.ts for system improvements/' Based on risk and cost; prioritize system improvements. 11. Prepare final draft of ~eport outlining PriOritized plan 'for security :upgrades, 'modifications' of operational procedures, and/or policychanges to mitigate identified risks to critical assets. Incorporate OWNER'S comments. - 12. Compilation ofinf0rmati0n. The information,' assessmentsand plans developed herein as'part of the Project, shall be held confidential and its'~ integrity- -protected through appropriate information protection strategies and protocols developedas part of this Project. No report will be submitted to the Environmental Protection Agency-or anY other governmental agency without proper document confidentiality prOtection provisions. ' 13. "Prepare and furnish-uplto five (5) copies of draR.-vUlne.rability assessment .sumanm~ report. Incorporate OWNER!s comments. Submit summary [eport-to.the Environmental Protection Agency. Submit certification to the Environmental -Protection Agency that the OWNER has conducted a vulnerability assessment. - 14. Submit five (5) copies of final vulnerability assessment report. D. EMERGENCY RESPONSE PLAN DEVELOPMENT Based on vulnerability assessment, identify Up to four (4) utility emergency incidents'for development~ of incident specific plans such as intruder detection, SCA_DA system mai.function, power outages, treated water contamination, and physical damage to critical assets. .2. Identify~utility related assistance available from the Texas Commission on Environmental Quality (TCEQ), the Environmental Protection Agency (EPA), and County. 3. Prepare up to four (4)'incident specific emergency response plans. 4. Prepare and furnish. UP to five (5) copies of the-Draft Emergency Response Plan. , 5. Incorporate-review comments and furnish up to five (5)copies of the Water Utility Emergency Response Plan. 6. Coordinate plan development with the City's representative to the Local Emergency Planning Committee (LEPC). 7. Submit certification tothe Environmental"Pr0tection-Agency that the :City'has completed the emergency response plan. SC4 ARTICLE II ADDITIONAL SERVICES: Additional Services to be performed by FNI, if authorized by oWNER, which are not included in the above described basic services, are described as follows: A. GIS mapping serwces or assistance with these services. B. Making revisions to drawings, specifications or other documents when such revisions are 1) not consistent with approvals or instructions previously given by OWNER' or 2) due to other causes not solely within the control of FNI. Preparing applications and supporting documents for govemment grants, loans, or planning advances and providing data for detailed applications. Preparing data and reports fOr assistance to OWNER in preparation for heatings before regulat°ry agencies, courts, arbitration panels or any mediator, giving' testimony, personally or by deposition, and preparations therefore befOre anyregulatory agency,'c0urt, 'arbitration panel or mediator. Assisting OWNER in preparing for, or appearing at litigati°n, mediation, arbitration, dispute review boards, or other legal and/or administrative, proceedings in the defense or~ prosecution of claims disputes with Contractor(s). Assisting oWNER in the defense" or prosecution of litigation.in connection with or in'addition to those services eontemplatedby this AGREEMENT. Such services, ifany, shall be furnished by FNI on a fee basis negotiated by the respective parties outside of and in addition to .thiS AGREEMENT. Design, e0ntraet modifications, Studies or analysis reqUired to comply with local, ~tate, Federal or other regulatory agencies that-become effective after the date of this agreement.' Visits to the site in excess of the number of trips included in Article I for periodic site visits, coordination meetings, or contract completion activities. ' Providing basic or additional Services on an accelerated time schedule. The scope of this service ineludeeost for overtime wages of employees and eonsul~nts, inefficiencies in work sequence and plotting or reproduction costs directlyattributable to an accelerated-time schedule directed by the OWNER. ARTICLE III TIME OF-COMPLETION: FNI is authorized'to commence work on the Project' upon execution of this AGREEMENT and agrees tO-complete the services in accordance with the following schedule: · Project coordination/kick°ffmeeting, planningworkshop, design basis threat selection, and site visits by October 31, 2003. · Interim vulnerability assessment report for staffreview and progress meeting by November 30, 2003. · Submit final vulnerability assessment report to the OWNER and vulnerability assessment certification and summary'report to the Environmental Protection Agency by December 31, 2003. · LEPC coordination meeting by January 31, 2004. · Draft incident specific response plans by February 29, 2004. · Draft emergency response plan by March 31, 2004. · Final emergencyresponse plan by May 31, 2004. FNI SC25 OWNER Submit emergency operations plan certification to the Environmental Protection Agency and the final Emergency Operations Plan by June 30, 2004. IfFNI's services are delayed through no fault ofFNIi-FNI shaii be entitled to adjust contract sehedule Consistent with the number of days of delay. These-delaYs may include but are not limited to delays in.OWNER or regulatory reviews, delays on the flow of information to be provided to FNI, governmental approvals, etc. These delays may result in an adjustment to compensation as outlined on theface of this AGREEMENT and in Attachment CO. ARTICLE IV RESPONSiBILITIESOF oWNER: r oWNER shall perform the following in a timely manner So as not to delay the services of FNI: ' · A. All OWNER representatives or designated pers°nnel.inVOlVed in this evaluation and in'utilizing the Risk Assessment MethodologyforWater (RAM-WSM), developed by SANDIA .(operatOr of SandiaNafional 'Laboratories under Contract Number DE,AC04:94AL85000. for the U.S. Department of Energy) and pursuantto the American' Water Works Association's (AWWA) obligation, tO' SANDIA and FNI,s obligation to AWWA, must sign a "NON DISCLOSURE AGREEMENT". "This is necessary for FNI to conduct the assessment; ~. Designate in writing a Pers°n to act as OWNER's representative with respect to the services to be rendered under tl~,s AGREEMENT. Such person shall have contract authorityt° transmit instructions, receive' information, interpret and define oWNER% policies and decisions with respect to FNI's services for 'the Project. Provide all criteria and full information as to oWNER's requirements for the Project, including design objectives and e0nstraintS; ~spaee, capacity and performance requirements, flexibility and expandability, and any budgetary'limitationS; and furnish copies of all design and constructiOn standards which OWNER will,.. require to be~included in the'drawings and, specifibafions. Assist FNI by placing at FNI's disposal all available information pertinent io the Proje6t including previous reports and any other datarelative t° design or eonstmefion of the Project. E. Arrange for access to and make all provisions for FNI to enter upon public and private property as required for FNI tO perform services under-this;AGREEMENT: Examine all studies, reportS; sketches, drawings, specifieati°nSlProp0sals and other documents presented by FNI, obtain advice of anattomey, insurance counselor and other consultants as OWNER deems appropriate for such examination andrender in writing decisions pertaining thereto within a reasonable time so as not to delay the Services of FNI. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as.may be necessary for completiOn of the Project. Provide'Such acc'ounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or FNI may reasonably request with regard to legal issues Pertaining-to the Project including any that may be raised by Contractor(s), such auditing service as oWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, role, regulation~ ordinance, code or order applicable to their furnishing and performing the work. SC-6 OWNER Give prompt written notice to FNI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or.timing of FNI's services. Furnish, or direct FNI to provide, Additional-Services as stipulated in Attachment SC, Article H 'of this AGREEMENT or other services as required. ' Bear all costs incident to compliance with the requirements-of this Article IV. ARTICLE .V DESIGNATED REPRESENTATIVES: FNI and oWNER designate the following representatives: Owner's Designated Representative - Tim Fisher, P.E. City of Denton _ 901-A TexasStreet - ' Denton, Texas 76109489.5- Phone: 940-349-7i90 Fax: 940-349-7334'~ E-mail: tim.fisher~eityofdenton:com Owner' s Accounting-Representative FNI's Project Manage? - Annie Jackson City of Denton - 901-A Texas Street .... ' Dent°n, Texas 76'1094895 Phone: 940:349~8463 Fax: 940-349-7334 E-mail: annie.j ackson~cityofdenton.com Tina E. Hanson, P~E. 4055 International Plaza, Suite 200 Fort. Worth, Texas 761094895 Phone: 817-735-7349 Fax: 817-735-7492 · E-mail: teh~freese.com FNI's Accounting Representative - Jana V. Collier 4055 International Plaza; Suite.200 Fort Worth, Texas 761094895 Phone: 817-735--7354 Fax: 817-735-7496 E-mail: jvc~freese.eom SC-7 COMPENSATION Compensation to Freese and Nichols shall be based on the following Schedule of Charges: The total fee for Basic Services in Attachment SC shall be performed for the lump sum fee of Seventy Thousand Dollars ($?0,000). IfFNI sees the Scope of Services chang/ng so that Additional Services are needed, including but not limited to those services described as Additional Services in Attachment SC, FNI will noti~ OWNER for OWNER's approval before proceeding. Additional Services shall be computed base on the Schedule of Chargas. EXHIBIT B Schedule of Chames: POSITION PRINIClPAL SENIOR CONSULTANT MANAGER-LOCAL OFFICE GROUP MANAGER SR DISCIPLINE LEADER DISCIPLINE LEADER PROGRAM MANAGER II PROGRAM ADMINISTRATOR ENGINEER VIII ENGINEER VII ENGINEER VI ENGINEER V ENGINEER IV ENGINEER INTERN III ENGINEER INTERN It ENGINEER INTERN I ELECTRICAL ENGINEER V ELECTRICAL ENGINEER iV ELECTRICAL ENGINEER INTERN fit MECHANICAL ENGINEER V1 MECHANICAL ENGINEER IV SENIOR RESIDENT REPRESENTATIVE CONSTRUCTION CONTRACT ADMIN III CONSTRUCTION CONTRACT ADMIN II CONSTRUCTION CONTRACT ADMIN I SR DESIGNER DESIGNER II DESIGNER I SENIOR ENGINEERING TECHNICIAN ENGINEERING TECHNICIAN TECHNICIAN II TECHNICIAN I DRAFTER GIS ADMINISTRATOR GIS ANALYST II DOCUMENT CONTROL CLERK ENVIRONMENTAL SCIENTIST VII ENVIRONMENTAL SCIENTIST VI ENVIRONMENTAL SCIENTIST IV ENVIRONMENTAL SCIENTIST III EN~RONMENTAL SCIENTIST II ENVIRONMENTAL SCIENTIST I ARCHITECT VII ARCHITECT V LANDSCAPE ARCHITECT V ARCHITECT INTERN III ARCHffECT INTERN II ARCHffECT INTERN I INTERIOR DESIGNER III HYDROLOGIST VI HYDROLOGIST V HYDROLOGIST IV HYDROLOGIST II GEOTECHNICAL ENGINEER VI SENIOR GEOLOGIST PUBLIC INVOLVEMENT COORDINATOR WEB SERVICES ADMINISTRATOR WORD PROCESSING/SECRETARIAL OPERATIONS ANALYST CONTRACT ADMINISTRATOR INFORMATION SERVICES CLERK CO-OP The ranges and Individual satadeo will be adjusted annually. RATES FOR INHOUSE SERVICES Computer and CAD PC CAD Stations $10.00 per hour PC Stations $8.00 per hour VAX Computm' $20.00 per hour Teatino ADparatu~ Density Meter $350.00 per month Gas Detaction $10.00 per tast Calcomp Plotter Bond $2.0O per plot Color $3.50 per plot Vellum* $4.00 per plot Mylar S10.00 per plot MAX 188.90 266.64 154.46 271.57 139.72 174.64 160.55 205.81' 177.04 198.92 a71~5 167.96 110.57 161.29 108.73 135.91 196.59 216.81 151.33 .190.53 105.40 184.10 109.82 146.33 g4;72 117.24 88.43 108.53 7g.70 g4.68 74.36 ' 87.22 116.87 146.08 123.01 132.23 90.20 '95.10 102.99 112.28 gg.g3 127.95 85.82 157.54 76.06 112.85 63.21 119.60 102.53 128.16 101.49 123.20 90.98 111.28 89.42 111.78 70.24 96.28 64.19 82.36 55.96' 83.40 44.88 57.76 103.56 129.45 56.98 71.22 47.52 59.40 115.73 144.66 88.08 110.10 70.77 88.46 63.31 95.25 64.33 78.11 47.67 59.58 138.60 173.25 109.14 136.59 107.13 133.91 93.13 116.42 67.as 89.46 57.60 74~51 60.26- 75.33 99.16 123.95 78.54 98.18 70.58 81.04 128.35 160.44 85.68 107.10 76.36 84.97 75.54 94.43 50.69 58.12 84.90 106.96 76.2~ 95.28 37.03 47.16 25.50 55.34 Print Shop Bluelinea $0.08 per square foot Offset end Xerox Copies $0.07 per single side copy Offset and Xerox Copies $0.14 Per double side copy GBC Binding(Reg. Cover) $2.00 per book GBC Bi'ding(Emboss. Cover) $4.00 per book Tape Binding(Reg. Coyer) $1.75 per book Tape Binding(Emboss. Cover) $3.75 per book OTHER DIREcT EXPENSES Other direct expenses are reimbursed at actual cost times a multiplier of 1.10. They include outside printing and reproduction expense, Communication expense, travel, transportation and subsistence away from Fort Worth and other miscellaneous exPenses directly related to the work, including costs of laboratory analysis, tests and other work required to be done by independent persons LS:3.4A 03-31-03 _ FNI . OWNER ' NONDISCLOSURE AGREEMENT In as much:as Frees¢ and Nichols is obligated 'not'to disclose information oUtside of our Agreement for Professional Services with the City of Denton. City of Denton shall not disclose information subject to :the applicable' areas of the attached Nondisclosure Agreement. ~ FREESE AND NIcI~IOrLS,-INC ~' ~ CITY OF. DENTON (OWNER) Date Date R:\Contract~2003~nondis¢losure.doc 67-06--!.002 IQ:63 ~rme- American Water Works Association T-686 T~,. Aum~ritative R,~..~c. f~r Safe Drinking Water NOND~sCLosuRE ,~G~. THIS AO[~J~EMEN~ i~ bc~ccn ~ ~c~can Water W~ ~soci~on, ~co~o~d (A~A) wi~ princip~ o~ces'locn~ ~ Dcnv~, Col~do. as · lic~cc of thc ~sk ~c~cnc Mc~hodolo~ for WaTer (~-WS~) 'devclop~ ~ ~ (op~/~ of S~ndia Na~ Labo~t~i~und~ Co~ N~h~ DB-AC04-94~85000 ~r ~e U.' S. Dcp~t and pursuant ~o ~A's ~li~u to'SA~ u~dcr Li~se number 02~C0~ 171 W~REAS,' it is ~cess~ and ~s~ble ~r'COMP~ m hSve access' m [nfo~ad0n which* S~D~ considc~.~pfi~ l~o~don ~nfo~afion)-and ~ ~es~ent Mc&~olo~ for Water ~-Ws~) dcve[op~ by*SA~D~ ~d &cAW. WA ~ Founda~on. The sole pU~ose (P~&) of~h e~geof~fo~dOn ~'mPe~it ~ ~ploy ~o methodolo~in the ~cce~ of ~nduc~g a risk ~S~smearofPubi[c Water pu~nr m ~e fol~wlag ~erms and cond[~ns~ THF. REFORF. COMPANY a~ccs: COMPANY studi profoot Sallie. information Which ~ a. disclos~ iu ~tiqg or o~er ran.~ble f~ ~d ptain~ ~cd as S~DIA'S .hfo~afion; b. Disclosed in another m~ncr and id~fified ~ pmprie~'a~ the time and summad~d a~ d~ig~md pr°pfiem~ ina ~en mem0mndm delivered to Comply with in &~'(30) ~ys office diacloam. COMPANY do Disclose Information only in the process Of fulfillh~g thc aforesaid PurpOse ~d. only ~tf~er the execution of a non-disclosurc agrccmcnt meeting requirements of this agreement with the pardclpafing water system. Use such Information only to the extant necessary for the afforesaid PurPOse. Limit ~ccess to tnform~tion..to such of its employees and contractors reasonably requiring same for the.aforesaid Purpose and who are obligated to treat The same as confidential and in t~esame manner and to. the equivalent extent ~ provided hereh~ w. ith regard to confldcnrialityi nonu~g and nondiscl°sure. Not remove the proprietary murk/ag from any of SANDIA's Information. Take all steps necessary to prol~ect-the InfOrmation from u,a~uthorized reproduction, and dis¢lo~ure, and to protect tbs Lnformadon at 1cast to thc same extent it wotdd use to protect i~ own most .valuable and'proprietary Recaived 07-08-02 11:46am From" HOTEL $0UTHPAPJC 05 0~-08-2662 10:53 Fr~ T~686 P.,005/012 ;-23Q e 10. 11. 12, The' nondisclosure obligaiion hcrermdcr.shall not apply .t~. any. lnforma~on thav. a. Is ar becomes par~'ofdle public domain-through no fault of COM~AHY; b. Was already known to COMPAHY prior to receipt i~om SAI~/DIA; c. Is lawfully disclosed t~ C01vtPAHY by a third pony who is not under any. obligation of confidcnfiali~ to ~ANDIA'with respect To such IufonnaLion. Is aT any limo devcloPcd by COMPAHY indcpcndcnflywithou~ thc usc of .d. Any Information that is or will be provided by- SAHDIA.or AWWA to COMP~ under this Agreeme~-~ is provided "as is" with no exPress.or implied warranties whar,,oever, in-clUdin§ thc implied warranlies of mcrchanmbiliry and time. ss for a particular purposc. -qAlqDIA and AWWA shall have no liability Whatsoever for dircct~ indirect, or conscqucntial d~taics,'which arisc out of COMPANY's'usc of thc Information provided'by SA_NDIA and AW~A to N~i~cr d~is ASree~.~nt ~r r~ di.scl~sur~ ~r reeeip~ of Inforn~ion shall constitute imply any promise or inflation to make any purchase ofproduc~s or services l~y either perry, or any commi~Tien~ by either pen'), with re~pcct m the present or furL~ra marketinl; of any'product or service. All Information shall ~cmain ILA~NDIA's Propcr~ and'shall hc rc~'Wnccl to writ~n rCqucst or ~_o AWWA upon COMt'AHY's dot .cnTgnalion d3at it nO lanier'has a nccd for such. Information. ESr, her pony may upon prior writ~ notice to the other part~ cease to provide alld/or receive any fur~er disclosures oflnforrna~ion from the.abhor patti/. Thc ~crm of this A~-ccmenL which is the actual ]cn~th' ct' time darin§'which. Information may bc disclosed, Shall cxpirc ~ ycars~m the date of acceptance of this Af~ccmeut by COMPANY anal llANE)I~., whichever is thc lastto accept diis A~rccmcnt. Thc obli§arkms of Ibis Agreement wi~h rcspcct lo coufideuliality, nonusc and n~ndisclosure shall CXpir~ five (f) years fr~m the dam of cxpira~ion of this A~recmcnr. This Al~reement shall'be made under, and shall be gdvemed by and c~mslrued in accordance widl the laws of die 'State of New Mexico, cxcludin$ ks choice provisions. COM. PAHY agrccs not to cxpor~ Information without both ~'~D~'s written approval and a Pr0pcr CApOn IiCCnSC. Received 07-08-02 Fro=- To.-13~l HOTEL $OUI'~AI~X OT-08-Zg02 10:$,i From- , T--f86 P.007/012 F-Z;.O O 13. All notices and/or coz~sp~xl~ce hereunder, sl~dl be mailed, fax~d or hand-delivered a~] acldresaed as follows: for AWWA: Paula Macllwaine, AWWA, 6~6g W; Quincy Avcnue, Dcnv~, Colorado, 802.3~, Phone: '303-347-~139, Fax: 303-794-8915, c-mail: pmacilwainc~aWWa.arg. For.~ANDIA: ~I¢ffr~y Dannccls,~ Org. 5862, MS 0789, Sandi~ N~tional Labar~tarics,-PO Box $800, Albuquerque, New Mexico 87185-0789, Pbnnc: 5o~-284-3897, Fax: ~05-~~. ~. *~69, e-marl: j!danne@saodia. ~ov. For COMI~ANY: Name'~f ComI~,~n¥ cohr~¢C:' ' "' '~,~- ~.' ' Th/s A~rerm~nt st2tes thc ~ndr~ ~l~e~"~n~'hctwc~n th~ p~-Qes supcr~in~ all priQr asr~m~nts. Irony 9ar~ is h~ld inv~l~d or'Lm~'n~orc~bJc, such portioT2 is stricQy without c~cc an thc remainder of ~ agr~eraent. lin wITHEs~.WHER~OF, thc' ~uth~rizea representatiVeS of,the parties have cxeouted this Agr¢cmc~I ~s sct forth.bclow. AMERICAN WATER WQRK~ ASSOCIATION: · 6666 Wcs~ Quincy Avenue Denver, C03~.35. . ' Y: . .. ReCeived. 07-88-02 11':49am From- ~ To-O~l HOTEL SOUTHPARK Pap 07 American Water'Wor Association Tho AutharJta~e Resource ~r $~t'e Odni~ing Water ~ T-686 P.008/~12 F~Z30 : SUBLICENSE AGREEMENT THIS SUBL1CENSE AGREEMENT, iS between American Water Works ASsociation ("AWWA'), and the person or entity identified in' the signature line below ("Sublicansae"~. dated as of June 11, 2002 (the 'Effective Date'). ',r, .RECITALS A. AWWA and Sandia Corporation ('Sandia') ire parties to that certain Res~cted' Commercial License Agreement dated June 10, 2002 (the 'Master Agreement'), v,l~ereby (~- Sa.ndia p.ravided t~ainlng ta AWWA in. the perfonllance '~f vulnerability assessment methodologies' known as Risk Assessment Methodology far Water Utilities (as described 'In more detail on ~xhibit A i~erato, the "Sandla' CopyrlghF) and Vulnerability Assessment Methodology-for American Water Works Association Researcli 'Fciundation, which Sandia'licensed fram American Water Works Association Re.~earch Foundation (as c~escdbed in more detail an Exl~ib~A 'hereto, the 'AWWAResearcl~ Foundation Copyright" and together with. the Sandia Copyright sad including derivative works of both copyrighm created by AWWA, the "Licensed Copyrights,)); and '(ii) .. Sandla granted a license to AWWA rouse the LicenSed copYdghl= and.to create derivative wo~s thereof. El. purSuant ta tl~e. Master Agreement, AWWA was granted the dgflt to a~e~d the right to use the Licensed Copyrights ta third parties who al~tend a training workshop conducted by AWWA (each a 'Workshop"). ~ C. AWWA and Sublicensee desireta set forth the terms and can=litians an which AW1NA Will grant to Sublicensee the dght ta use the Licensed Copydghts, D. _ The exeCution of tills Agreement Indicates ~at Licensee has successlully completed a Workshop a~d is .qualiflec~ to use .and apply the Licensed .Copyrights to conduct risk assessments far water/waste, subject to..the terms hereirt and subject to the nandisclosure statement/agreement between · AWVVA and Sublicensee. · AGREEMENT THEREFORE, for good and valuable ccmsiderationl the receip~ and sufficiency af which is hereby acknowledge=l, the parties hereto ago'ce 'as fallows: 1. . Su~license. AWWA grants "Sublicensae. the non-exclusive, nan-transferable, nan- sublicenseable, restricted right, for the term sat fart~ in Snc~;joF1 2 hereof, ta use and. evaluate ~e Licensed Capy~ighLs, solely for the purpose of. canaucttng vulneral=ility assessmepts far clomesfic Unitecl States water utilities and other water utilities approved ~ advance by AWWA in wdting Upon expiration 446256 v2 Received 07-08-02 11:49~ Fro~- To--01atI*XOTEL souTHpxRK · Pa~e 08. 0?-.08-2002 10:55 or earlier termination of the term applicable. ~ith respect to the Licensed C~pyrights, SubliCensee shall promptly return all such Licensed Copyrights, and-certify in. writing to AWWA that Sublicensee has ncr retained any portion of the Licensed Copyfigl~ts. 2.. Tel'~ and Termination. The term of ~isAgreemer~t sllall commence on the date first written above and shall expire on the earlier of (1) the clare on wl~lcl~ the Master Agreement is terminate~. ~ or (ii) the date on which this Agreement la terminated in accordance with the terms hereof. AWWA may terminate this Agreement at any time in trio event of any breach, by Sublicensee. 3. .~estHc.flons: Access. Sublicensee shall not copy, 'rep. reduce, 'altar, or in any manner modify the Licensed. Copyrights, except with AW~A's prior written authorization. Sql=licensee shall not disclose, publish, .seli~ tJ'ansfer,-clistribute, sublicense, lease, share, assign or otherwise reveal the Licensed Copyrights t~ any. person~other.than bona. fide water utility essential personnel participating in Subllcensee's vul~erabilityassessment, except with. AWWA's prier written-author'izatlon. AWWA shell have the right to inspect and evaluate dudng normal business hours Sublicensee's operation and-use of the Licensed 'Copyrights. 4: OwnefShlo. Sublicensee 'agrees and acknowledges.' .that Sandia is lac owner of the~' Sandia Copyright and that AWWA Researcrl Foundation is the-owner of the AWWA Research Fou'ndatierl CopYdgllt (for. purposes of'~is Sectiop ,~ and Sections 5 and _6, Sandia and AWWA Research Founclati~n shal he [he "Licensors") including all Intellectual proper~'y rlgl'tts thereto. "Nothing stated ~lerein alkali be deemed 'to.' grant,, transfer,".assign er sell to SubliCensee any right, title, interest er ownership of the LicenSed. Copyrights, ail o1' which'Is hereby expressly reserved by AWWA. 5. Disclaimer and Limitation. ACKNOWLEDGES THAT',AWWA AND~. THE LlCENSORS ARE PROVIDING-THE-LICENSED COPYRIGHTS.TO SUBLICEN'SEE LICENSORS MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED COPYRIGHTS. EXPRESS OR IMPLIED, ARISING .BY-LAW. OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, EFFECTIVENESS; COMPLETENESS, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE-FOREGOING, AWWA AND THE LICENSORS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ANDANY WARRANTY OF NON-INFRINGEMENT. AWWA AND THE LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIM, DEMAND OR ACTION, .IRRESPECTIVE OF THE NATURE. OF 'THE CAUSE THEREOF, PA FOR ANY LOSS, INJURY OR DAMAGES,. DIRECT OR-INDIRECT, INCLUD!NG-.WITHOUT LIMITATION, AMOUNTS REPRESENTING LOSS. OF REVENUES OR. PROFITS.. LOSS OI~I~USlNESS OR CONTRACTS; PERSONAL INJURY, PRODUCT LIABILITY,' PROPERTY DAMAGE OR INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARtSING .OUT OF SUBI~ICENSEE'S USE, POSSESSION OR EVALUATION OF THE LICENSED.COPYRIGHTS OR FROM ANY DEFECT THEREIN. SLIBLICENSE IS EXPRESSLY PROHIBITED FROM REPRESENTING THAT ANY VULNEi:~BILITY ASSESSMENT CONDUCTED BY OR FOR SUBLICENS.EE IS ENDORSED BY AWWA OR LICENSORS IN ANY MANNER WHATSOEVER: , 6. JJ:Ld_e[:~:t~. Sublicensee agrees to indemnify, held harmless and defend AWWA and the Licensors fi.em and against any and all claims; liabilities, losses and expenses, including reasonable attorneys' fees and costs,-ariSing directly:Or indirs~y out at~ Sublicansee's misuse .ar the Licensed 'Copyrigl~ts '(including negligent or intentional misuse or omission) or fr~m Sublicensee's breach of this Ag.ream en't. 7. Copslderatlon.. In considerati°n of SubliCensee's attendance at a Workshop and the grant of the license set forth herein, Suhlicensee has paid AWWA $1 8. (~overnina Law. This Agreement shall be construed in accordance with Colorado law uncter the sole jurisdiction (which the parties hereby Submit to) of the applical=le state and federal courts et' C~lorado. I~acatved 07-06-02 ;.i ._ '..'._..~ ~.'i.i ': .......... ll~4gam Fr~m- Pa~e Qg HOTEL SOUT~PA~ 07-08-2662 10;56 From- T-685 ?.OIO/OT2 F-230 g. Remedies. Sublicensee acknowledges and agrees that ti'la provisions of thls Agreement are a reasonable .and necessary protacticn '.of=the immediate and substantial interest= of AWWA and'the. - Lice~morm, and that any violation of these restrictions would cause substantial' and in'operable injury m AWWA and the Licensors. In the evenl of a breach ar threatened breach by Sublicensee of any provision at this Agreement, AWWA and/or the Ucensors. or either' of them, si'tall be entitled to apply to any court of_ competent jurisdiction for 'a temporary an(I/or permanent injunction restraining Sublicensee from such breach or threamned I=reach; provided, however, that nothing herein contained shall be c~nstrued te preclu~le AWWA and/or the Licensors, or either of them, from pUrsuing any other available remedy for such breacil or threatane~l breach in addition to. o~n ,lieu of, such injunctive relief. 10. Entire Aareement, This Agreement"fogether with its Exhibits .co~istltute the' entire agreement between the parties .regarding the .subject matter` hereof end supersedes any and ail prtar negotiations, promises, c~mmitments, undertakings and agreements-Of the parties relating thereto. 1 I'. Notices. ,N! notices required or permitted under this Agreement shall be in writing and "transmitted either via overnight courier, electronic mail, hand deliver or certified registered mail, p'oata~e. prepaid and reium' receipt requested to the parties at their respectivi~ addresses set forth on the signature page hereto. -12. . Modificetjeps and Validitv of'SiQnature. This Agreement may be modified only in writing- . and if signed by ·duly authorized representatives nf th· parties. 13: Attorneys' Fees q. nd Casts. tn the event that any action ar proceeding is' broug~ by either party for the' enforcement or interpreta~o.n Of this Agreement, the prevailing party in such action ar proceeding shall be entitled ta recover fram the norl=prevailing party, in addition' ~. any other remed.y ol~tained,~the prevailing party's reasonable attorneys' fees anti c~sts incurred in c~nnecfien therewith. 14. - Al~Plicable provisions of:Master Aamernent. In ad~lition t0 the terms he,eof, Sublicensee agrees te 'be .hound. es-"LICEN:SEE", to. the provisions of ll~e Master'Agreement set forth an 'Exhibit B herein. . 15: .' Assi. anmenb-Bindino EffecL This Agreement shall be binding upbn and shall inUre to the benefit of the parties hereto and their respective heirs. legal representatives;' Successors' and permitted asmgns. Sublicensee may fiat ass!gn Sul~licensoe's rights or obligations under tibia Agreement wi~ut the prior written consent of AWWA. Any attempted assignment by Sublicensee in violation of this' Section t 5 shall be void. 16. waiver of Brae'ch. The waiver by either party of a breach of any provislon of this Agreement by"the other party shall.not operate or be construed as a waiver of any subsequent breach of' that provisio~t 'or any otherprovision hereof. ' .. 17. Survival. The Parties agree that the following Sections al' this Agreement shall survive, and remain in full fame and effect following, the expiration of ~e term of this Agreement or any ,~ther ten-nination of this Agreement: 3; 4, 5. 8.8, 9; 10, 11.13. 14', 1§ and 16 Received 0?-08-02 I1:4gain 'To.--OI,~II' HOTEL SOUTH~ARX Page I0 07-0S-~-O02 I0:!i1~ Frm~- T-081i P,011/01 IN W1TNES,,q WHEREOF, the padles hereto have executed this Agreement as of the date first written above. '~ · AMERICAN'WATER WORKS ASSOCIATION: SUBLICENSEE: 6886 West Quincy Avenue - :.: .(ca3_mpany name. and-a~laress] _... t Received . 01-08-02 ll:49am From-- ..'......: ....... :'..:.i:;..;..i ......... i-: ...... f...: ...... T~O~I HOTEL SOUTHPARX Pale !1 07-68-~002 10:58 Fro~- T-686. P,012/012 F-230 EXHIBIT A 'LICENSED COPYRIGHTS SANDIA COPYRIGHT SCF~ 593: Risk Assessment Methodology for Wa~er [RAM-W) presentS a security rial< assessment methodology for water utfilUes. Major elements include: Planning, Threat Assessment, Facility Characterization. System Security Effec~eness, Risk ManagemenL AVVWARF COPYRIGHT 'Vulneral3,ity .a~sessment Methodology for American water Worl<s Association Research Foundation" [2001, AWWARP'], Licensed'to Sandia Corporation by the AWWA Research Foundation l~ Agreement ~K32-100C)37 DERIVATIVE WORKS Derivative worl<a of.the sandia Copyright arid the AWWARF Copyright; which are'owned by Sandla and/or American Water W~rks Association Research Foundation pursuant to the terms of the Master Agreement. ' .EXHIBIT a APPLICABLE PROVISIONS. OF. MASTER AGREEMENT 13. Neither SANOlA, the united States Government, the DOE, the AW~NA Research Foundation, nor any of their employees make any warranty, express or Implied, .or-assume any legal liability or res. ponsibility for the accuracy, completeness, or utility of LICENSE COPYRIGI-~. SANDIA and the AWWA Researcll Foundation further make no warranty, express or implied, that the use. o[ LICENSE COPYRIGHT made evadable to LICENSEE under this License Agreem'e~t will not infringe any .United States or-foreign' patetlt, copyright, trademark-or trade Sacral 14~ ALL WARRANTIES, EXPRESS OR IMPLIED. INCLUDING BUT NOT LIMITED TO THE iMPLIED-WARRANTIES OF MERCHANTABILITY AND' FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED; - - ' 21. LICENSEE shall not, without express written consent of SANOIA, 'make any ved3ai ar written statement or perform any act indicating I/tat SANDIA or the AWWA Research .FoundaUon' endorses any use of LICENSE COPYRIGHT by LICENSEE. Further, nothing In this License Agreement shall be construed as canferrlng-rigr~ts to'use any. trademartc or the name of SANDIA in any' advertising, endorsing, publicity, or otherwise. 25. sANDIA, the AWWA: Research Foundation, and the United States 'Govemment shell not be liable [or any loss, damage (including incidental, consequential.and special), injury or other casualty of whatsoever kind. or by whomsoever caused,.t~ the person or property o1' anyone,, including LICENSEE, arising out of or resulting from the license granted to LICENSEE herein, or the accuracy and validity of LICENSE COPYRIGHT. LICENSEE agrees for itself, its .successors and assigns, to defend SANDIA and the AWWA ReSearch Foundation, and to indemni~.and held SANDIA..the AWWA Research Foundation, and the United States Government, harmless from and against all claims, demanas; lial3ilittes, suits-or actions (~ncludmg all reas~3nable expenses-and auJ3mey's fees incurred by.or ~mposed on SANDIA, the AWWA Research Foundation, or the United States Government In connection therewith) for such loss, damage (including incidental, consequential and special}, injury, or other casualty. 28. Each perry warrants and reprosenL~ ~llat the execution~ and delivery of this License Agreement, by SANDIA .and. LICENSEE,; has nat: been .induced-by any promises, representations, warrants, or agreements other than these express~cl herein .... - I~acaivad 07-08-02 ll:4(laa To"OI~ HOTEL ~0UTHPA~K Paze 12 DRAFT 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 DeNon, 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 7) Consider approval of the professional services agreemem from Freese & Nichols Inc., for preparation of a water utility vulnerability assessmem, utilizing RAM-W and a "Water Utility Emergency Response Plan" in an amount not to exceed $70,000. Jim Coulter, Director of Water/Wastewater, presented this item. Coulter reported that in response to security concerns related to terrorists' attacks on September 11,2001, legislation was passed requiring all public water systems to conduct a vulnerability assessmem and revise their Emergency Response Plans. Coulter stated that because Freese and Nichols has been involved with many projects for the City, and is already very familiar with the City's water system and Emergency Response Plan, staff is recommending approval of the professional services agreement. Hopkins asked staff if there was really a way to safely protect the water system Coulter responded one could make things more difficult and increase monitoring, but there will always be some concern. Coulter poimed out that this study would help idemify the City of Demon's weaknesses and recommend improvemems. Hopkins moved to approve the study, with a second from Cheek. The motion was approved unanimously. Page 1 of 1 EXHIBIT 3 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: October 7, 2003 Tax Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of tax refunds for the following property taxes: Tax Name Reason Year Amount ~l~ Maran ~ ~ M~h~ up!~ ~ B. Jonathan Littmann Duplicate Payment 2002 1,158.27 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 $2,180.32. Respectfully submitted: Diana Ortiz Director of Fiscal Operations AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET October 7, 2003 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider approval of an exaction variance of Section 35.20.3 (B) of the Code of Ordinance concerning a perimeter street's sidewalk requirements. The parcel contains approximately 0.23 acres and is located at 1214 Morse Street. The property is within a Neighborhood Residential-4 (NR-4) zoning district. The Planning and Zoning Commission recommends approval of the variance. (7-0). (V03- 0011) BACKGROUND Mr. and Mrs. Louis Clay, the applicant and owner of this property, has applied for a full exaction variance of section 35.20.3(B) of the Code of Ordinances regarding relief from installing perimeter sidewalks. The Code requires all developments, within a dedicated right-of-way or easement, provide sidewalks and/or bicycle facilities designed and located in accordance with the Transportation Design Criteria Manual and street classification along one (1) side of all perimeter streets. The applicant is required to plat the property because of the proposed new construction and because it was not previously platted. Morse Street is designated as a collector street on the City's mobility plan and thus would require 8fl wide sidewalk. It should be noted that although there is sidewalk on the opposite side of the street, there is no sidewalk on Morse Street on the side this property is on. Because of the condition of the house, improvements are not practical, so the house is to be demolished and a new one built to replace it. As such staff considers agrees that no additional need than what currently exists will be created. Therefore, the costs to install the sidewalk would be an imposition on the development, which exceeds any reasonable benefit to the property owner. The applicant's letter and a fact sheet from the Community Development Division provides additional information concerning this item. The City Council may approve an exaction variance if the following criterion is met: b) Criteria for variances from development exactions. Where the commission finds that the imposition of any development exaction pursuant to these regulations exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted, it may recommend approval of variances to waive such exaction's, so as to prevent such excess, to the City Council. Waiver of developmental exactions shall be approved by the City Council. The price the applicant paid for the parcel, or the cost of the proposed building improvements is not a factor in determining reasonable costs. The City Council must decide if the costs associated with the P~el public improvements required by city regulations are reasonable and consistent for the type of development proposed and are proportional to the demand for services created by the development. OPTIONS 1. Approve full variance 2. Approve full variance with conditions 3. Approve a partial variance 4. Deny variance RECOMMENDATION Staff recommends approval of the exaction variances, per the applicant's request. The Planning & Zoning Commission voted 7-0 to recommend approval of the variance on September 10, 2003. PRIOR ACTION/REVIEW The Planning & Zoning Commission voted 7-0 to recommend approval of the variances on September 10, 2003. FISCAL INFORMATION City staff estimates 8ft wide sidewalk at about $20.00 per lineal foot. development along Morse Street is approximately 75ft for a total of $1,500.00. The frontage of this ATTACHMENTS 1. Location map 2. Plat 3. Applicant's letter 4. P & Z minutes Prepared By: David Salmon, Assistant Director Engineering Respectfully submitted: Charles Fiedler Director, Engineering Page 2 ATTACHMENT # 1 SITE LOCATION < ATTACHMENT #3 LETTERS/MEMOS RATIONALE FOR GRANTING SUBDIVISION VARIANCE REGARDING SIDEWALK PLAN REQUIREMENT FOR MINOR PLAT LOT ls BLOCK As MORSE STREET ADDITION Minor Plat #: PP03-0025 and FP03-0039 -Location: 1214 Morse Street Sidewalks currently exist on the north side of Morse Street. These sidewalks provide safe pedestrian access to Morse Street, the MLK Jr. Recreation Center and Tomas Rivera Elementary for neighborhood school children and others in the community. Construction cfa sidewalk on this property would not serve to enhance safety since there would be no connecting sidewalks on the south side of Morse. The variance will have no effect on the smTounding properties. The subject property is unique in that it is a single-family reconstruction within the NR-4 zoning district, it would seem that the intent of the sidewalk ordinance was to provide continuous sidewalks within homogenous developments of both single-family and multi-family units. In this case, the minor plat of this lot will contain a single house that is essentially replacing the existing housing for the existing family. This work is being completed in an existing neighborhood, which was developed without sidewalks. Evidently, development in this specific neighborhood was also carried out without appropriate oversight regarding platting of residential lots. Reconstruction of units in neighborhoods where lots were properly platted would not include installation of a single, non-connecting sidewalk. This lot has tkree trees (see picture # 1 of attached memo, page 2) that could be adversely affected by the installation of sidewalks. This landscaping is considered a valuabIo asset to the property owners who wish the trees to remain un_harmed. For this reason, the o~vners consider that the installation of sidewalks may not only cost them additional money for construction but would also reduce the value of their property if these trees were lost. This constitutes a hardship for the current residents. The granting of this variance will in no way vary any provision mandated by the Zoning Ordinance, Denton Comprehensive Plan, Master Plan, nor any study. In fact, as the subject property has a zoning of NR-4, the lack of sidewalks will better fit the terms of in-fill compatibility, in that, as stated above, tic sidewalks exist in this largely built-out street. This lot has been in its current configuration since before 1960. The neighborhood and Addition, when surveyed and developed, did not require sidewalks. Therefore neither action, nor inaction of the current owner nor any previous owner is the cause for the peculiar situation, but rather the action of the original involuntary zoning itself. Community Development Division Economic Development Department 100 W. Oak St., Suite 208 - Denton, TX 76201 (940) 349-7726 - Fax (940) 3§3-;~445 MEMORANDUM Tot From: Date: Re: Commissioners of the City of Denton Planning and Zoning Board Barbara L. Ross, Community Development Division Deborah Viera, Larry Reichhart - Planning and Development Department August 12, 2003 Request Subdivision Variance regarding Exempting Sidewalk Plan for a Minor Plat #: PP03-0025 and FP03-0039 -Location: 1214 Morse Street Please consider the following additional information regarding thc subdivision variance request for the property in question known as Lot 1~ Block A of the Morse Street Addition: 1. Louis and Cora Clay have received a loan through the City of Denton Optional Reconstruction Program for improvements to their property on Morse Street. The cost of renovating tho existing structure is not feasible and a replacement housing unit will be constructed. To obtah~ a building permit the property' must be properly platted. The minor plat of this lot requires planned sidewalks. 2. There are no existing sidewalks on the properties on either side of this structure or on any of the properties on the south side of Morse Street. In 1997, using Federal Community Development Block Grant funds, the City constructed new sidewalks on the north side of Morse Street. 3. Community Development staffrecommends approval of the.variance. This cost savings will make the project more affordable for the owners and assist them in securing safe, decent and sanitary housing for their family. 4. Please note that CDBG funds are made available and awarded each year to complete capital improvement projects that include installation of curbs and gutters, repave streets, install sidewalks, construct drainage systems, etc. Several sidewalk projects have been completed in the Southeast Denton neighborhood, tf it is determined that sidewalks are needed for the south side of Morse Street, the neighborhood association or the approphate city department may complete an application to request funding. Mr. and Ms. Cia}' appreciate the Planning and Zoning Commission's consideration to approve this subdivision variance request allowing for an exemption ora sidewalk plan. Approval of the variance would not only lower costs for the homeowner, it will also preserve program funding so that others living in substandard housing can be assisted Barbara L. Ross - Fair Housing * Homebuyer Assistance * Home Improvement * Minor Repair * Small Business Loans Page 2 8/13/03 Commissioners - P&Z Board Sidewalk Variance Standing at the subject property looking west Standing one house East of subject property looking east_ ' ' '¢.-4 X';"%~'-;';:;~:'~' ~. i ~7 . .... ~ :7'-. . · ) ~". " ~:~;:~:- ~:¢.-;* ':7,: M;;'~'~'' ;5,:' ;~"~' Standing approximately across the street from tot on nodh side of Morse. Fair Housing * Homebuyer Assistance * Home Improvement * Minor Repair * Small Business Loans ATTACHMET #4 P&Z MINUTES COreM 4 ? 1 ? m,~t~r~8. ~'ak: ~,, We"~ AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 16, 2003 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual comract for the purchase of Distribution Gang Operated Air Break Switches; providing for the expenditure of funds therefore; 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. BID INFORMATION This bid is for the annual contract to supply Distribution Gang Operated Air Switches (GOAB) for DeNon Municipal Electric (DME). These items are carried in the Warehouse working capital inventory for easy access. RECOMMENDATION We recommend that Items one through three of this bid be awarded to Hughes Supply in the estimated annual amoum of $40,000. Techline, inc. offered a lower bid price on items one and two, but the manufacturer listed, (Hubbell Chance), did not meet bid specifications. PRINCIPAL PLACE OF BUSINESS Hughes Supply Corinth, TX ESTIMATED SCHEDULE OF PROJECT This price agreemem will be in effect for a period of one year from the date of award and may be extended for additional one-year periods if agreed to by both parties, with all pricing, terms and conditions remaining the same. FISCAL INFORMATION This item will be funded out of the Warehouse working capital account and charged back to the using department. Agenda Information Sheet October 7, 2003 Page 2 Attachment 1: Bid Tabulation 1-AlS-Bid 3077 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent BID # 3077 Attachment 1 DATE: 9/9/03 ANNUAL PRICE AGREEMENT FOR DISTRIBUTION GANG OPERATED AIR BREAK (GOAB) SWITCHES Priester Supply Techline, Inc. Hughes Supply ,rincip,e,,ace o, ,u~ine~'. ~"~t~' ~t ~.~x ~,~t~,~x 25 kV, 3 Phase I 4 Topper, GOAB $2,027.65 $1,962.00 $1,963.00 Switch 25 kV, 3 Phase 2 ~2 Steel Cross Arm $2,006.25 $~,854.00 $~,943.00 GOAB Switch 25 kV, 3 Phase 3 2 Fiberglass Cross $2,062.95 $2,~77.00 $~,998.00 Arm GOAB Switch 3A $2,250.00 Shipment 56 Days 42-49 Days 56 Days ORDINANCE NO. 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 THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3077-ANNUAL PRICE AGREEMENT FOR DISTRIBUTION GANG OPERATED AIR BREAK (GOAB) SWITCHES AWARDED TO HUGHES SUPPLY IN THE ESTIMATED AMOUNT OF $40,000. 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 3077 1,2,3 Hughes Supply 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 3077 BID # 3077 Exhibit A DATE: 9/9/03 ANNUAL PRICE AGREEMENT FOR DISTRIBUTION GANG OPERATED AIR BREAK (GOAB) SWITCHES 25 kV, 3 Phase I 4 Topper, GOAB $1,963.00 Switch 25 kY, 3 Phase 2 12 Steel Cross Arm $1,943.00 GOAD Switch 25 kY, 3 Phase 3 2 Fiberglass Cross $1,998.00 Arm GOAD Switch 3A $2,250.00 S~ ~3R~ Shipment 56 Days AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: October 7, 2003 Materials Management Questions concerning this acquisition may be directed to Jim Coulter 349-7194 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance awarding a contract for the purchase of Phase I of a Wireless Network System for the City of Denton Water Production Division 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 therefore; and providing an effective date (File 3057-Purchase of Wireless Network System awarded to Johnston Technical Services, Inc. in the amount of $106,624.10). FILE INFORMATION The Water Production Division's objective is to construct a wireless communication system to manage and monitor the operations and security of water production data, video and equipment control from a central location. This item is for Phase I of this Wireless Network System for the City of Denton Water Production Division. It will connect the Lake Lewisville Water Treatment Plant to the Northwest Elevated Storage Tank (new water tower located at I35 and Loop 288), which will then connect to the Lake Ray Roberts Water Treatment Plant. Currently, the communications between the Lake Lewisville Water Treatment Plant (water treatment plant on Spencer Road), our three water towers, and the Lake Lewisville pump station are monitored and controlled by either City owned copper cable lines or Verizon dedicated leased phone lines which link to a central computer at the Lake Lewisville Water Treatment Plant. These lines are not only limited in the amount of data or communications that can be transmitted; but are also becoming maintenance liabilities. A Capital Improvement Project (CIP) was established to install wireless communications for new facilities as they came on line and then slowly convert the other facilities from their current wired systems to wireless. This project, originally developed and planned prior to September 11, 2001, was for basic tank level, valve positions and chlorine residual communications. The Northwest Elevated Storage Tank was planned to be the first wireless site. Currently, this elevated storage tank has no communications with any of the Water Productions facilities. In light of the need for heightened security and to insure due diligence in protecting the public water supply, the project was re-vamped. As a result, in addition to the monitoring and controlling equipment originally planned, staff incorporated increased surveillance for all Water Production facilities thus expanding the scope of the project. Agenda Information Sheet October 7, 2003 Page 2 An RF Path study was done in order to identify the best communication strategy for the Water Production Division. Since the City of Demon Communication Division's radio system does not have enough available bandwidth for Water Production's needs, the decision was made to send out a Request for Proposal (RFP) for the design and installation of a wireless network system. The RFP was sent to three companies that were selected based on their prior experience in wireless communications and their work in Denton and the North Texas area. Only two of the three responded to the RFP. During the pre-bid meeting the remaining two companies determined that they could offer the City a better end product if they worked together allowing the strengths of each company to be realized, with Johnston Technical Services as the lead. The wireless solution being proposed in Phase I addresses both the communication and surveillance issues for the Northwest Elevated Storage Tank and the Lake Ray Roberts Water Treatment Plant. The new Lake Ray Roberts Water Treatment Plant currently has no connection to the Lake Lewisville Water Treatment Plant on Spencer Road or to the distribution system. For this vital link, staff initially considered installing a fiber optics cable while installing the 54" finished water transmission main. But, at a cost of approximately $200,000, staff determined that a wireless connection would be a better option. Since the Northwest Elevated Storage Tank is the highest structure, it will be the backbone of the wireless system. All communications will transmit to this tower and then be sent to the Lake Lewisville Water Treatment Plant. While the goal of the project is to connect all Water Production sites via a wireless network system, the project will be completed in phases in order to accommodate budgetary constraints. The costs for Phase I are higher than originally proposed as a result of the change in scope of the project. And, the additional connection to the Lake Ray Roberts Water Treatment Plant includes: · a self supporting tower installation for the antenna · a licensed radio frequency between the Northwest Elevated Storage Tank and the Lake Lewisville Water Treatment Plant · added bandwidth for transmitting video from each facility The licensed radio frequency will allow Water Production to avoid radio imerferences now and in the future over the heart of Denton. The State of Texas Catalog Information Systems Vendor Program (CISV), formerly Qualified Information Service Vendor (QISV), was used for this project. This method of procuremem is used in many high tech procuremems. The sealed bid process is not as conducive to high tech purchases because often the technology changes during the bid process. The CISV allows for negotiation with the vendor to get the best pricing and fit with the City. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider this item at its October 6, 2003 meeting. Agenda Information Sheet October 7, 2003 Page 3 RECOMMENDATION We recommend award of this item to Johnston Technical Services, Inc. in the amount of $106,624.10 PRINCIPAL PLACE OF BUSINESS Johnston Technical Services, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT Phase I of this project will begin upon Council approval. The estimated completion date is December 2003. FISCAL INFORMATION Funding for this will be provided from the $20,000 earmarked for the original project scope and $86,624.10 from operating revenue for a total of $106,624.10. The project number is 630084516.1360.40100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Proposal from Johnston Technical Services, Inc. Attachment 2: CISV letter 1-AlS-File3057 Attachment 1 LLWPP to NWEST Licensed Microwave System Project managemeut, enginee, ri.'n.g., permits, fees and bq.n.d costs $5,150.00 .......... 100 Mbps Full Duplex Microwave System, including radios, $45,381.00 antennas, transmission. l'..m_es, testing ...... Installation of licensed microwave system at LLw~ and $5,107.50 NWEST, including mounts & brackets, labor for installation and align antennas ............ Equipment rock at top ~fNWEST tank (for oil sys~'~ms), inclUdes: $2,'812'.40 rack, UPS....s. ystem, managed Ethernet sM. tc.h., labor 3 year Factory maintenance program to provide support and NBD . $4,822.20 (Next Business Day) replacemem radio equipment · .. Subtptal..for Licensed Link between .L...LWPP and NWEST ........ $63,273.10 ' ~q~ST to. L..RRWP.P.....U..nlicensed'System .... Unlicensed microwave system, including radio"si'~termas, $17,852.00 transmission lines, cabinet at LRRWPP with managed Ethernet switch Tower option one at LRRWP~-- steel pole installed n~t"~o $10,300.00 building, allows radio equipmem to be installed inside building,. Tower option two at LRRWPP - self st~mding traditional tower, g~'~,462.00 outside equipment cabinet, conduit to building for power and sisal ,, Installation of"~censed microwave system,'including mounts'&' $6,0'~'~.00 brackets, labor to installation and align antennas. Includes SO cable to power equipment rack. 3 year Factory maintenance program to provide ~>p°rt and NBD $3,022.'00' (Next Bus. i~.ess Day) replacemem radio e~luipment ....... Subtotal for NWEST to LRR.W~.. P with steel pole ....... $3..7,189.00 Subtotal for NWEST to LRR WPP with traditio~....l., tower ..... $43,351.00 Phase One cost..with steel pole oPtion at ..LRRWPP ... $100,462.10 Phase One cost. w.i. th.. traditional tower optio.n at LRRWP£ ...... $106,624.10 At£ac~ent 2 Johnston Technical Services, Inc. 2877 LBJ Freeway · Dallas, TX 75234 · (972)620-1435 · Fax (972)247-5023 September 23, 2003 Karen E. Smith Senior Buyer City of Denton 901-B Texas Street Denton, Texas 76209 Re: QISV Pricing, Response to RFP 3057 Wireless Network System Dear Ms Smith, The prices for product and services quoted by Johnston Technical Services, Inc. in response to RFP 3057, Wireless Network System are equal or below our standard QISV pricing. We look forward to working with the City of Denton on this project. Please contact me if you have any questions. My office is 972-620-1435 x115 and cell # is 214-533~7971. Sincerely, Jim C. Johnston ORDINANCE NO. AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF PHASE ONE OF A WIRELESS NETWORK SYSTEM FOR THE CITY OF DENTON WATER PRODUCTION DIVISION 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 THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3057-PURCHASE OF WIRELESS NETWORK SYSTEM AWARDED TO JOHNSTON TECHNICAL SERVICES, INC. IN THE AMOUNT OF $106,624.10). WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92- 019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083 of the Texas Local Government Code which authorizes the City to participate in the State Purchasing Building and Procurement Commission Information Service Vendor Catalog Purchase Method provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "CISV Catalog"); and WHEREAS, the herein described vendor is a qualified vendor in the CISV Catalog and the contract authorized by this ordinance is in the best interests of the City and complies with the requirements of Subchapter B of Chapter 2157 of the Texas Government Code as a CISV Catalog purchase; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the "File Number" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 3057 Johnston Technical Services, Inc. $106,624.10 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Building and Procurement Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Building and Procurement Commission, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the Building and Procurement Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above numbered items set forth in the subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved purchase orders or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of .,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-File 3057 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: October 7, 2003 Materials Management Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of 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 Denton Engineering Department; authorizing the expenditure of funds therefore; and providing an effective date (RFP 3083 in an amount not to exceed $300,000). RFP INFORMATION The City of Denton Engineering Department solicited proposals to contract with a qualified surveying firm for the delivery of routine surveying services on a work order basis during the 2003-2004 fiscal year. Surveying services will include, but not be limited to, providing construction staking, field design surveys, topographic surveys, boundary surveys and analysis, preparation of easement or right-of-way exhibits, GPS monument placement, and other professional surveying services as required. There were eleven proposals submitted for evaluation. A selection committee consisting of representatives from Engineering, Water Utilities, Purchasing, and Electric Utilities reviewed the proposals. The top five proposals were ranked according to their response to criteria assessing demonstrated competence and qualifications to perform the services required. The Committee ranked Arthur Surveying Co., Inc. the highest based on the information submitted in their response. Subsequent to selection, negotiations with Arthur Surveying resulted in rates for survey crews, registered professional land surveyors, and administrative support that were at or below levels funded within the Engineering Department budget for these services. This, coupled with the fact that the City will only be charged for services when services are performed, will allow for cost effective, responsive survey services to City departments. RECOMMENDATION We recommend award of RFP 3083 to Arthur Surveying Co., Inc. in an amount not to exceed $300,000. PRINCIPAL PLACE OF BUSINESS Arthur Surveying Co., Inc. Lewisville, TX Agenda Information Sheet October 7, 2003 Page 2 ESTIMATED SCHEDULE OF PROJECT This Professional Services Agreement will begin upon Council approval and be in effect for one year or until the contracted amount has been expended, whichever comes first. FISCAL INFORMATION Funding for this service will be provided from account 351001.7875. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: RFP Respondents 1-AlS-RFP 3083 ORDINANCE NO. 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 DENTON ENGINEERING DEPARTMENT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFP 3083-IN AN AMOUNT NOT TO EXCEED $300,000). WHEREAS, The professional services provider (the "Provider) memioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed comract are fair and reasonable and are consistem with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to emer into a professional service comract with Arthur Surveying Co., Inc. to provide professional surveying services for the City of DeNon Engineering Departmem, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PSA 3083 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the day of ~ 2003, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Arthur Surveying Co., Inc., with its corporate office at 220 Elm Street, Suite 200, P.O. Box 54, Lewisville, Texas 75067, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer or surveyor, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, Indefinite Delivery Surveying Services-with Attachments A, B, and C. Page 1 H:\Survey Services\ConmaXi~rthur Surveying Agreement. doc Revised 5~30-02 SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall not exceed $300,000 without additional authorization from the Owner. 2.1.2 Progress payments for Basic Services shall be paid at hourly reimbursable rates irt accordance with Attachment 'B' and 'C' for services performed by the Design Professional, plus any direct cost reimbursables. '2.2 REIMBURSABLE EXPENSES Reimbursable Expenses shall generally be a multiple of 1.10 times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions. Reimbursable expenses as agreed to between the Owner and Design Professional are described in more detail m Attachment 'C'. SECTION 3 ENTIRE AGREEMENT Th/s Agreement includes this executed agreement and the following documents ali of which are attached hereto and made a part hereof by reference as if fully set forth herein: Applicable portions of the City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Attachments A through C. This Agreement is signed by the parties hereto effective as of the date first above written. Page 2 H:\Survey Servi¢~s\Con~act'C~rthur Surveying Agreement.doc IKevised 5-30-02 CITY OF DENTON BY: MICHAEL A. CONDUFF CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: WITNESS: Page 3 H:\Survey Services\ContractkArtdmr Surveying Agreement,doc Rcviscd 5-30-02 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHI13ACT OR ENGIN-EI~R'S RESPONSIBILITIES 1.1 The Axehitect or Enghae~s services ennsist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to wlfich these General Conditions are attached) performed by the A~chiteet or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professinnal will perform all Services as aa independent contractor to the prevailing professional standards consistent with the level of cate and sldil ordinarily exercised by members of the same profession currently practicing in tho same locality uuder similar conditions, including reasonable, kffomaed~udgmenB and prompt timely actions (the "Degree of Care"). The Se~Mces shall be performed as exgeditiomly as is consistent with tho Degt, e of Care necessar7 for tiao orderly progress of the Project Upon request of the Owner, the Design Professional shall subt~t for the Owners approval a schedule for the performance of the Services which may bo adjusted as the Project proceeds, and shall include allowances for periods of time requ/~ for the Owners review and for approval of subraiasions by authorities having jmisdictioa over the Project. Time limits established by this schedule and approved by the Owner shall not, except for reasonable muse, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINF._J) The Design Professional's Basic Services consist of those descend>ed in Sections 2.2 through 2.6 of these General Conditions and include without limitation normal stmcm~, civil, mechanical and electrical engineering services aud any other engineering services neeessa~ m produce a complete and accurate set of Consh'u~ou Documents, as descn~ued by and requk~ in Section 2.4. The Basic Services may be modified by the Ag/cement. 2.2 SCItEMATIC DESIG/q PItASE 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owners needs and to establisla the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and eom-txaction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5,2.1. 2.23 The Design Professional shall review with the Owner altemative approaches to design and cons~ructima of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirem~ts, the De,sign Professional shall prepare, for approval by the Owner, Schematic Design Dceaments consisting of drawings and other d~cuments illus~rati~g the scale and relationship of Project compommts. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The D~ign Professional shall submit to the Owner a pretlmlnary detailed astinmte of Cons~u~tion Cost based on current area, volume or other unit costs and which indicates the enst of each category of work involved in constructing the Project and establishes an elapsed thne factm for the period of time from the commencement to the completion of construct[om 2.3 DESIGN DEVELOPMEblT 23.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of ckawings and other documents to fix and descn'bo the size and character of tho Pro}ect as to amhileebaral, structural, mechanical and electrical systems, materials and anch other elements as may be appmptiab~, which shall comply with all applicable laws, statutes, ordinances, codes end ~egalatinns. Notwiths~ding Owners approval of the doonments. Design Professional represents that the Deeummts and specifimtions will bo sufficient and adequate to fulfill the purposes of the Project. 2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Consmaction Cost in a timber Detailed Stamment as descn3ed in Section 2.2.5. 2.4 CONSTRUCTION DO~S 2.4.1 Based on the approved Design Development Documents and any fmther adju~qraonts in the scope or quality of the Project or irt the eonsmaction budget authorized by the Owner, the Design Pmfeesinnal shall prepare, for approval by the Owner, Constraetion Documents consisting of Drawings and Specifications sett~g forth in detail requirements for the ennslruetion of the Project, which shall comply with all applicable laws, statutes, orr~nnnees, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement lomas, the Conditions of the contrac~ and the form of Agreement between the Owner and contractor. 2.43 The Design Professional shall advise the Owner of any adjnstme~ts to previous preliminary estimates of Construction Cost indicau~l by changes in requirements or general market eonditiom. 2.4.4 The Design Professional shall assist the Owner in connection with the Owner's ~pom~ility for fil~g documents required for the approval of governmental authorities having jurisdictinn over the Project. 2.5 CONSTUCTION CONTRACT PROCI_rRE~ 2.5.1 The Design Profe~onal, following the Ovmefs approval of the Construction Documents a~d of the latest preliminary detailed estimate of Constmc~io~ Cost, shall assist the Owner in procuring a consmactlon contract for the Project through any mt method that is legally applicable to the Project including wiflmut Page 1 of H:~Survey Services\Contract\GENERAL CONDITIONS-ARCHITECT-ENGINEER.dec Revised 5-30-02 limitation, the competitive sealed bidding l~ocess. Althongh the Owner will consider the advice oftha Design Professional, the award of the construction cOntnmt is in the sole discre~dun of the Owner. 2.5.2 If the conslronfion contract amount for the Project exceeds the total construction ceSt of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Ptofessiorml, then the Design Professional, at its sole cost and expense, vdlI revise the Consu-uotion Domments as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total cons~raction cost set forth in the approved Detailed Statement of Prohable Constructinn Costs. 2.6 CONSTRUCTION PttASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Constraction Phase under this Agreement commences with the award of the Contract for Corkslxuetion and mates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2, 2.6.2 The Design Professional shall pray/de detailed adm~nlm'ation of the Contract for Consmxedon as set forth below. For design professiunalss the adrni~sl~ation shall also be in accordance with AIA ducumeat A201, General Conditions of the Contract for Construction, eorrent as of the date of the AgrecmenX as may be amended by the City of Denton special conditions, unless othera6se provided in the Agreement. For engineers the ~'lministrafion shall also be in accordance with the Standard Specifications for Publin Works Construction by the N~th Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, mspousibilities and lir~ations of authority of the Design Professional shall not be ~estticted, modified or emended without written agreement of the evener and Design Professional. 2.6.4 The Design Professional shall be a rapresentative of and shall advise and consult with the Owner (1) during conslruction, and (2) at the Owners direction from time to time during the correction, or warranty period described in the Contract for Construction. The Design Professional slmll have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6~q The Design Professional shall observe the construction site at least one time a week, while eonsmaction is ha progress, and as reasonably necessary while comtruction is not in progress, to become familiar with the progress and quality of the work completed end to determine if the week is being performed in a manner indicating that the woxk when completed will be in aceorda~ce with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professiomt shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diIigenee in discovering and promptly reporting m the Owner any observable defects or deficiencies ha the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The l~sign Professional shall promptly correct any d~ective designs or specifications fanaished by the Design Professional at no east to the Owner. The Owner's approval, acceptance, use of or payment for all or any pa~t of the Design Professional's Services hereunder or of the Project itself shall in no way al~er the Design Professional's obligations or the Owner's fights hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for common means, methods, ~echniques, seqmmces or procedmm, or for safety precautions and programs in connection with the work. The Design Professional shall not be mspensible for the Contractors schedules or failure to tarry out the work in accordance with the ConU'act Documents except insofar as such failure may result fi-om Design Professiomd's negiigem acts or omis- sions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcor~ters, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Do~ts or when direct cornam~cations have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Commnoieafiom by and with the Design Professional's consultants shall be lhrough the Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work ard evaluations of the Contractors Applications for Payment, the Design Professional shall review and certify the amounts duo the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a represecbation to the Owner, based on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data eoraprising the CanWaetofs Application for Payment. that the work has progressed m the point indicated and that the quality of the Work is in ac.c/ordanco with the Contract Dominants. The foregoing representations m-e subject to minor deviations from the Conlract Documents cor- recycle prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Cer'dficate for Payment shall furt.her constitute a ~epresentation that the Con~'actor is entitled to payment in the amount certified~ However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed eonsmaction means, methods, teclmiques, sequences or procedures, or (2) ascertained how or for wha~ purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Design Professional shall have the reapans~ility and authority to reject work which does not conform te the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation nf the intent of the Centraet Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installerI or completed. However, neither lhas authority cf the Design Professional nor a dec/sion made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to ~be Contractor, Subconlractors, material and equipment mpptiers, their agents or employees or oth~porsous performing portions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractors submittals such as Shop Drawhags, Product Data and Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordimmces and codes; and (2) detemah:~g whether or not the work, when completed, will be in compliance with the requirements of the Can~ract Documents. The Design Professional shall act with such rensomble promptness to cause no delay ha the work or in the coasmaetion of the Owner or of separate eontrac~rs, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purlmse of datetmining the accuracy and complebmess of other details such as dimensions and quantities or for subs~.mtiating instructiom for installation or performance of equipment or systems designed by the Contractor, ail of which remain the reapons~ility ~,f the Contractor to the extent required by the Contrae~ Doeumants~ The Design Professional's review shall not constitute approval of s~ety precautions or. unless otherwise specifically stated by the Design Professional, of construction means, methods, tedmiques, sequences or procedures. The Design Professional's approval cfa specific item shall not indinate approval of an assembly of which the item is a component. When professienal certification ofperformanee characteristics Page 2 of 8 H:~Survey Services\Contract\GENl~.RAL COND1T~ONS-AKCH1TECT-ENGINEEI~doe Revised 5-30-02 of materials, systems or equipment is requLred by the Contract Documents, the Design Professiena[ shall be entitled to :ely upon such certification to establish that the materials, systems or equipment will meet the perfonuance criteria required by the Conwaet Documents. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change DkecfiveS, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.iA and 3.3.3, for the Ovmefs approval and execution in aecerdenee with the Contract Documents, and may authorize minor changes in the work not involving an ad, torment in the Contract Sum or an extens/on of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2,6.14 On behalf of the Owner, the Design Professional shall condue: inspect/om to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion) The Design Professional will receive and review written gnarante~ and related doeumonts required by tho Contract for Construction to bo assembled by the Cca~mctor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and pray/de recommendations on matters concerning performance of the Owner and Cuntmctur under the requirements of the ConWact Documents on written request of either the Owner or Contractor. The Design Professional% response to such requests shall be made with reasonable promptness and within any time lirrdm agreed upon, 2.6,16 Interpretations and decisions of the Das~gn Professional shall be consistent with the intent of and reasonably inferable from the Conmc'~ Documants and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provxsions of th~s Agreement and in the absence of regligonc~ 2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, ~sputes or other matters in question between the Owner md Contractor relat/ng to the execution or pmgrass of the work as provided in the Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for ali damages mused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have reader the Agreement or di~uish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Comm~ction Docraments dining the Construction phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services de~eribed m this Axt/cle 3 are not included in Basic Services unless so idantif~t in the Agreement or Proposal, and they shall be paid for by thc Owner as provided in the Agreement, in addition to the compensation for Basic Serdces. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services descffbed under Contingent Additional Servlces in Section 3.3 are required due to circumstances beyond the Design pmfessienal's control, the Design Professional shall notify the Owner in writing and shall not comraance such additional services until it receives written appmv.al from thc Owner to proceed, if the Owner indicates in wfitlng that all or part of such Cont/ngent Additional Services ere n°t required, the Design Pr°fessional shall have no obligation to pmvicl¢ those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If mom extensive representation at the site than is desc'nq~l in Subsection 2.6.5 is required, the Design Professional shall provide one or nmre Project Representatives to assist i~ carrying out such additional on-site responsibilities. 3.2.2 Project Represantatives s[mll be selected, errrployed and directed by the Design professional, ~ the Design Professienal shall be eomponsated therefor as agreed by the Owner and Design Professional. 33 CONTINGENTADD1TIO~qAL SIgRVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: i. incon~mt with approvals or instructions previously given by the Owuer, including revisions made necessary by adjustments in the Owner's program or Project budget; 2. requiredby the enactment or revision of codes, laws or mgnlafions subsequent to the preparation of such documents, or 3. due to changes required as a result of the Owner's failore to render decision in a timely manner' 3.3.2 Providing services required because of significant changes in the Project including, but not timimcl to, size, quality, cemplexity, or ttm Owner's schedule, except for services required ander Subsection 2.5.2. 3.33 Preparing Drawings, Specifications and other documentatinn and supporting data, and providing other services in connection with Change Ordexs and Conatm~on Change DirectiveS. 3.3.4 Providing consultation eoncenfing replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 3.33 Providing services made necessary by the d~fanlt of the Contractor, by major defends or deficiencies in the work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Conslruct/e~ Page 3 of 8 l-I:\Survey Services\Contract\GENERAL CONDITIONS-ARCHrI~CT-ENGINEER.doe Revised 5-30-02 3.3.6 ProvidiI~g services in evaluating an extensive number of claims submitted by the C~nh-aetor or others in connection with the work. 3.3.7 Providkig services in coonecfion with ~ public hearing, arbitration proceeding or legal proceeding except where the Design Professional is pa_n'y thereto. 3.3.8 Providing servieea in addison to those rexinked by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in coimcefion with bidding or consh'u¢fion prior to the completion of the Construction Docume~t~ Phase. 33.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the conlrary, ali services descn'bext in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Profe~sioml shall 1~ performed by the Dasign Professional as a part of the Basic S,rvices under the Agreement with no additional cempomafion above ard beyond the compensation due the Design Professional for the Basic Services. The interverdng er concurrmt negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4J Providing financial feasibility or other ~cial studies. 3.4.2 Providing planning surveys, rdto evaluations or comparative sindias of prospective sitas. 3.4..3 Providing special survey% env/rommen~al studies and submissions required for approvals of gnvemmental aulhorities or othe~ haVing jurisdiotion over the Pro~ect. 3.4.4 providing services relative to future facilities, ~tems and equipment 3.4.5 Providing services to investigate existing conditiom or facilifie~ or to make measured drawings thereof. 3.4.6 Pro~iding selwices to verify the accuracy of drawingaor other information furnished by the 3.4.7 Providing coordination of construction performed by sepamt~ contraciors or by the Owners own forces and coordination of services required in connection with eonslractian performed and equipment supplied by the Owner. 3.4.8 Providing detailed quanfit7 surveys or inventories of material, ~pment and labor. 3.4.9 Pm~idi~g analyses of operating and maintm~aace costs. 3.4.10 Making investigations, inventoties of materials or equipmt, or valuations and de,ailed appraisals of exiaing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, lraining pemennel for operation and mainmance and ¢onmltation daring operation. 3.4.13 Providing interior design and similar services mq~red for or in cc~meaion with the solution, procurement or inaallafion of furniture, furnishings and related eq~ipmar~ 3.4.14 Providing servic~ other than as provided kt Section 2~6~4, after isa-race to the Owner of the final Ceati_qcate for Payment and expiration of the Warranty period of the Conh'aet for Construction. 3.4.15 Providing services of consultants for other than arebitectural, civil, structural, mechardcal and electrical engine~g portions of the Project provided as a pm of Basic Services, 3.4.16 Providing any other servicas not otherwise incladed in this Agreement or not co~tomarily furnished in accordance with gemerally aceept~l arcbiteetuml practice. 3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showi~g significant changes in the work made during con- stmctinn based on marked-up prints, drawings md other data furnished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything contained in the Agrcem~t, Proposal or these C~neral Conditions to the contra-y, all services desto'bed in this Article 3 that caused or necessitated in whole or in part due to the negligent act or omissio~ of the Design Professional shall be performed by the Design Profeiksional as a part oftha Basic Services trader the Agreement with no additional compensation above and beyond the compensation due the Design Prefessinmfl for the Basic Services. The intervening or concurrent negligmue of the Owner shall not timit the Design Professional's obligations trader this Subsection 3.4.15. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult with the D~ign Professional regarding requirements for the Project, including (i) the Owae~s objectives, (2) schedule ~ design censtraint~ and criteria, incl~ing spare requiremenm and relatiomhips, flexl~bilky, ext~ability, special equipm~at, systems and site requirements, as more speci- fically descn'bed in Subsection 2.2.1. 42 The Owner shall establish and update an overall budget for the Project, including the Commmcticm Cost, the Owa~s other costs and reasonable conting~mcies related to all of these costs. 43 If requested by the Design Professional, the Owner shalt furnish ~videnco that financial arrm~gements have b~en made to fulfill the Own~s obligalions under this Agreement Page 4 of 8 H:XSta'vey Services\ContmctSGENl~RAL CONDITIONS-ARCHITECT-ENGINEER.doc Revised 5-30-02 4.4 The Owner sMll d~i~ate a representative author[zed to act on the Owners behatfwith respect to the Project TI~ Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progr~s of thc D~ign Prof~sionat's s~'rvices, 4,~ Whom applicable, tbe Owner ~hall furnish surveys descn~oing physical charaoteristies, legal limitations and utility locations for thc site of thc Project, and a written legal demcripdon of the site. The surveys and lcgnl iufonmtion shall include, as applicable, grades and Iinem of streets, alleys, pavcrmmts and adjoining property and structures; adjacent dra/nage; rights-of-way, restrictions, easements, encroachma~, zoning, deed restrictions, boundariea and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvemen~ and trees; mad inforrmation eotmeming available utility services and lines, both public and private, above and below grade, ineluding inverts and depths. All the infomm~on on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall fum/sh the services of geotecknical engineers when such services sm r~quested by the Design Professional. Such services may include but are not limited to test borings, test pits, detmuiaations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and sistivlty tests, including r~ecessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other eormul~ants when such services are maanuably required by the scope of the Project and am requested by the Design Professional and ~ not retained by the Design Professional as pa~ of its Basic Services or Additional Services. 4,7 When not a part of the Additional Serv/¢es, the Owner shall furnish stmetnraI, mechanical, eI~emlcal, air and water pollution tests, togs of hazardous mtecials, and other laboratory and environmental te~ts, inspections and repo~s required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and imurance cotmseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contraotofs Applications for Payment or to ascerlain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports req'u.ired by Owner under Sections 4.5 tktough 4.8 shall be furnished at the Owaei's expense, and the Design Professional shall be ~ntitled to rely upon the accuracy arid completeness thereof in the absence of any neglige~.o on the part of the Design Professional. 4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes awar~ of any fault or defect in the Project or noneenfonmace with the Contract Documents. 4.11 Design Professional shall propose language for canifica~ or omificmhons to be requested of the Design Professional or Design Professional's oomqultant~ and shall submit such to th~ Owner for revi~v and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require lmowIedge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Conarucfian Cost shall be the toud cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Constmetion Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the l~ign Professional, plus a reasonable allowance for the Contractors overhead and profit. In addition, a reasonable allowance for con- tingnncies shall be included for mark*'t conditions at the time of bidding and for changes in the work during construction. 5.1.3 Conslmcfion Cost does not include the compensation of the Design Professional and Design Prof~,sionai's consultant, the costs of the land, rights-of-my, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owners Project budget, preliminary estimates of Comirucfion Cost and detailed estimates of Comlruction Cost prepare, zl by the Design Professional represent the Design Professional's best judgment as a design professional familim' with the construction industry. It is mcogn/ged, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of deum'nlnlng bid prices, or over compediive bidding or market conditions. Accordingly, the Design Professional emmet and does not wammt or represent that bids or cost proposals will not vary from the Owu~s Project budget or from any estimate of Constmctien Cost or evaluation p~epared or agreed to by the Desiga Professional. 5.22 No fixed limit of Consauotien Cost shall be established as a couditian of the Agreement by the furnishing, proposal or establishment ufa Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such ~ fixed limit has been established, the Design Professional shall be pennitmd to include contingencies for design, bidding and price escalation, to determine what mategals, equipment, component systems and types of construction are to be included in the Contract Documents, to make r~msonable adjualm~ls in the ~..ope of the Project and to include in the Contract Dooaments altemate bids to adjust the Consmmfion Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contraot Sum occurring after execution of the Contract for Constmctian. 5.2.3 If the Procorom~ Phase has not commenced within 90 days aiter the Design Professional submits the Consiraetion Documenm to the Owner, any Project budget or fixed limit of Con.stmction Cost shall be adjusted to reflect changes in the general level of prices in the construction indns~y between th~ dam of submission of the Construction Documents to the Owner and the date on whicl~ proposals are sought~ ARTICLE 6 OWNERSHIP AND IJSE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project ate instruments of the Design Professional's service and shall become fl~e property of the Owner upon teiminalion or completion of the Agreement. The Design Pmfessioual is entitled to relain copies of all such documents. Such docurr~nts am intended only be applicable to this Project, ~md Owner's use of*ach documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in mother project or for oliver purposes fl~n are specified in the Agr~mont, the Design Professional is roles.md from any and ail liability relating to their nsc in that project Page 5 of $ H:\Survey Services\Contract\GENERAL CONDITIONS-ARCHITECT-ENGINEER.doc Revised 5-30-02 6.2 Submission or distribution of docuramm to mcet official regulatory requkements or for sknilar purposes in ennnection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. ARTICLE 7 TERMINATION, S-LI'SPENSION OR ABANDONMENT 7.1 Thc Design Professional may terminate the Agreement upon not less than thirty days wri~ notice should the Owner fail substantially to perform in accordance with thc terms of the Agreement through no fault of the Design Professional. Owner rrmy tenninat~ the Agreement or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work mad labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such notice. Before the end of the thirty 00) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such notice, No amount shall be due for lost or anticipated prof,, All plans, field surveys, and other data miated to the Project shall become property of the Owner upon termination of the Agreeraent and shall be prompfly delivered to the Owner in a reasonably orgm~d form. Should Owner subsequently contract with a new Design Professional for continuation of serviaes on the Project, Des[ga Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 comecufive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the intermptlon and re~mption of the Design Professional's services, 7.3 The Agreement may be mated by the Owner upon not less than seven days wfi~a notice to the Design Professional in the event flint the Project is permanently abandoned. If the Project Lq abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payment~ to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- performance and cause for terrdnation. 7.5 If the Owner fails to make paym¢ot to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional tray, upon seven days written notice to the Ortner, suspend performance of se~ices under the Agreement 7.6 In the event of termination not the fault of the Design Professional, tho Design Professional shall be compensated for services properly and satisfactorily perfcamed prior to termination. ARTICLE 8 PAYMENTS TO TI-IE DESIGN PROFESSIONAL $.1 DII~ECT PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatoxy and customary eontribt~ions and benefits related thereto, such as employment rexes end other statutory employee benefits, insurance, sick leave, holidays, vacations,pensions amd similar cen~butions and benefits. 8.2 REIMBURSABLE EXPENSES 8,2,1 Reimbm'sable Expenses are in addition to compensation for Basic and Additional Services and inoluda expenses incurred by the Design Prot~ssional and Design Professiomrs employees and consul~mts in the interest of the Project, as identified in the following Clauses. 8.2.1.1 Expense of tramportation ia connection with the Projecg expmses in counection with authorized out-of-tom travel; long-distance eomnmffications; md fees paid for securing approval of anthorities having jurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the ~eproducfion of the sets of documents referenced i~ Subsection 2.6.19), postage and handling of Drawings, Specificatioms and other documents. 8.2.1.3 If authorized irt advance by One Owner, expense of overtime wo~k requiring higher than ~egnlar rates. 8,2.1.4 Expense of renderings, models end mock-ups requested by the Ovmer. 8,2.1.5 Expmseofenmputer-aldeddasiga and dmf6ng equipment time when usedin conneedun with the Project. 8.2.1.60th~r exp~es that are approved in advance in writing by the Owner. 8,3 PAY1VIIgNTS ON ACCOUNT O1~ BASIC SERVICES 83.1 Payments for Basic Serv/ces shall be made monthly ard, whom applicable, shall be in propo~ion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of wore 8~3.2 If and to the extent that the time initially established in the Agreement is exceeded or exmaded through no fault of the Design Professional, compermafion for any servtces rendered during the additional period of time shall be computed in tho manner set forth in Section 2 of tl~ Ag/cement; 8-3.3 When compensation is based on a pereenlage of Constru~un Cost and any pordons of tho Project are deleted or otherwise not constrneterk compensation for those po~ons of tho project shall be payable to the extent services are performed on these portiens, in accomtanee with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Comtm~don Cost for such portions of the Project, 8.4 PAYMENTS ON ACCOUNT O1~ ADDITIONAL SERVICES 8.4.1 Payments on account of the Design Professional's Additional Serdces and for Reimbursable Expenses shall be marlo monthly wiflfin 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incarred. Page 6 of 8 H:\Survey Services\Contract\GENERAL CONDITIONS-ARCHITECT-ENGI31'EER~doe Revised 5-30-02 8.5 PAYMENTS WI'I'H~:t~LD No deductions shall be made from the Design Professional's con-q~nsation on account ofp~alty, liquidated damages or other sums wi~hcld from paym.~nts to conWactors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. 8.6 DESIGN PROFF_~SSIONAL'8 ACCOUNT~G RECORDS Design Professional shall malta available to Owner or Owncds anthorlzed representative records of Reimbm~sable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expemse for inspection and copying during regular busbaess hours for tl:wee years attar the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 LNDEMNIT¥ 9.1 Tlie Design Professional ~all [ndenmi~ and save and bold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costa and re.enable attorney fees incurred by the Owner, and including,, without limitation, damages for bodily and personal injury, death and property damage, resulting fi:om the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the p~nformance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing berein shall waive any of the parries' defenses, both at law or equity, to any elam, cause of action, or litigation ~ed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE Dm-lng the p~rformanee of the Services under the Agreement, Design Professional shall maintain the following instmmce with an insurance company licensed or authorized to do business in the State of Texas by the St~ate Insuxanee Commission or any anueessor agency that has a rating with Best Rate Carders of at least an A- or above: 10.1 Comprehemive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not tess than $250,000 in tl~ aggxegate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in aceordanen with statutory requirements, and EmployerS' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $I,000,000 annual aggregate. 10.5 The Design Professional shall furrdsh insurance certificates or insurance policies to the Owner evidencing insurance in eomplinnce with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compemation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that suer insurance shill not be canceled or modified without thirty (30) days' prior written ~ntlce to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requixements ofthls Article 10. ARTICLE 11 MISCELI.~2qEOUS PROVISIONS 11.1 Thc Agreement shall be governed by the taws of the State of Texas. Venue of any suit or muse of action under thc Agreemem shall lie exclusively in Denton County, Texas. 11.2 Thc Owner and Design Professional, respectively, bind themselves, their parmers, successors, assigns and legal representatives to the other party to this Agreement and to the parmers, successors, assigns and legal representatives of such other party with respect to all covemats of chis Agreement. The Design Professional shall uot assign its interests in the Agreement without the written consent of the Owner. 11.3 The term Agreement as used herein includes th~ execaxed Agreement, the Proposal, the~e Oeaeral Conditions arat other atmehrae~ts fermented in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all Frier negotiations, representations or agreements, either written or omi. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these C~neral Conditions and the other attaduuents referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such domments shallbe given priority ia the following order: 2. 3. 4. The executed Ag-r~ment Attachments refermcad in Section 3 of the Agreement other than the Proposal These General Provisions The Proposal I1A Nell-ting contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional. 11.5 Upon receip: of prior written approval of Owner, the Design Professional shall have the right to include representations of thc design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Pmfessio~tat's materials shall not include the Owners confidential or propfietaey infmmation ff the Ownex has previously advised the Design Professional in wri~sng of the specific information considered by the Owner to be cor~fi- dential or proprietary. The Owuer shall provide professional credit fur the Design Professional on the consmaction sign and ia the promotional materials for the Project. Page 7 of 8 HSSurvey ServicesXContracfGENER-AL CONDITIONS-AKCItlTECT-t~IGINEER.dec Revised 5-30-02 11.6 Approval by the Owner shall not constitute, nor be deemed a rele~e of the responsibility and ]iabiIfty of the Design Professional, its employees, ~.ssociates, agents~ subcontractors, and subconsultants for the accuracy and competency of thelr designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or oth~r work prepared by the Design Professioual, its employees, subcontractors, agents, and consultants. 1t.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to tho address shown below algna~ure block on the Agreement, ce~fied mail, return receipt requested, unless otherwise specified herein. All notices shall be deemed effectiw upon receipt by the party to whom such notice is given, or within three (3) days afar mailing. ! 1.8 If any provision of the Agreement is found or deemed by a court of competent jurisdicl/on to be invalid or unenforceable, it sha~l be consfdered severable from the remainder of the Agreement and shall not came the rc~mainder to be invalid or ~manforceable. In such event, the parries skall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional shall comply with all federal, sta~e, and local laws, rules, regulations, and ordinances applicable co the work covered h~'eunder as they may now read or hereina~er be araended during the term of this Agreement. 11.10 In performing the Services required heceunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national cr~gin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. Page 8 of g H:\Survey Services\Contract\GENERAL CONDITIONS~ARCHITECT-ENGINEER.doc I~vls~ 5-30-02 ATTACHMENT 'A' SCOPE OF BASIC SERVICES The scope of Basic Services for this project generally consists of professional surveying services in support of the City of Denton (Owner) as administered by the City of Denton Engineering Department. Services will be on an indefinite delivery basis for specific tasks or projects as requested by City staff. The total amount of work is undetermined and may be limited by the total maximum compensation indicated in Section 2, Compensation, of the Professional Services Agreement. Specific tasks may include the following: · Construction staking · Fieid design surveys · Topographic surveys · Boundary surveys and analysis · Preparation of easement or right-of-way exhibits · GPS monument placement · Other professional surveying services as requested All survey services will be performed under the direct'supervision of a Registered Professional Land Surveyor (RPLS) licensed to practice in the State of Texas. The Design Professional will seal all boundary surveys and other documents requiring the seat of an RPLS. All surveying services will meet or exceed the minimum standards of practice established by the Texas Board of Professional Land Surveyors. In addition to field crew(s), the Design Professional will provide the services of an RPLS and/or survey technician to support the field crew, both to prepare materials prior to field work and to compile, analyze or map the information gathered by the field crew or to otherwise prepare the work of the field crew for delivery to the Owner.. PROCEDU RE A representative of the Owner will provide the Design Professional with a written Survey Request Form. This request will provide a minimum of forty-eight (48) hours notice of the need for specific services and will outline briefly the nature of the work to be provided along with the necessary timeline. If the Design Professional is unable to meet the required schedule, he will notify the Owner within twenty-four (24) hours so that other provisions or a revised schedule can be arranged. Once the Design Professional has reviewed the preliminary information provided with the Survey Request Form and has agreed to accept the specific assignment as detailed, the Owner will provide detailed information, including written instructions, construction plans or drawings, deeds, sketches, electronic drawing files, or any other information necessary to complete the assignment. Upon review of the detailed information, the Design Professional will provide an estimate of the effort and/or cost of services to the Owner's designated representative. Upon completion of the work, the Design Professional will provide electronic files, plots, maps, exhibits, field notes, point files, and/or other materials as requested by the Owner. Deliverables will be produced and transmitted to the Owner using standards established and set forth by the City of Denton Engineering Department. H:~Survey $¢rvices\Con~act~.tmchracnt A.doc Exhibit A- Page t ATTACHMENT 'B' SCHEDULE OF FEES A. BASIC SERVICES: For work performed by the Design Professional within the scope identified in Attachment A, Scope of Basic Services, the Design Professional will be reimbursed as described below: Labor. Design Professional shall be reimbursed on the basis of negotiated fees for each item of service provided, as mutually agreed to by the Design Professional and the Owner, or on the basis of labor of personnel employed by the Design Professional on an hourly basis in accordance with ATTACHMENT 'C', Standard Rate Schedule for Reimbursable/Multiplier Contracts. When services are based on hourly reimbursable rates, the time charged will not include travel time to the project site from the Lewisville office of the Design Professional and will cease upon completion of the task in Denton. No travel time will-be charged by the Design Professional. Direct Expenses. Direct expenses, such as printing, reproductions, delivery/courier services, etc. will be reimbursed to the Design Professional at his direct invoice expense times a multiplier as set forth in Attachment 'C'. Where appropriate, a not-to-exceed amount will be established and agreed to for each item of service provided. H:kSurvcy Services\ContracfiAttachment B.doc Exhibit B - Page t ATTACHMENT 'C' STANDARD RATE SCHEDULE FOR REIMBU RSABLE/M U LTIPLI ER CONTRACTS (to be attached by the Design Professional) H:\Survey Servic~s\Contmct~tt,~chm~nt C.doc rthur Surveying Co., Inc. lZ~.ofessional Land Srtrveyors SCHEDLrLE OF HOURLY RATES 220 Elm Street, Suite #200 Lewisville, Texas 75067 Effective January 2003 Registered Professional Land Surveyor Project Representative Senior Technician Junior Technician Survey Coordinator Office Manager Office Clerical Conventional Field Crew/Junior Party Chief Conventional Field Crew/Senior Party Chief GPS Field Crew $100.00 per hour $50.00 per hour $75.00 per hour $45.00 per hour $50.00 per hour $50.00 per hour $30.00 per hour $80.00 per hour $100.00 per hour $125.00 per hour STAKES: Stakes will be charged at cost + 10% if an excessive number are required. (Typically included in crew rate.) IRONS: Irons will be charged at cost + 10% if an excessive number are required. (Typically included in crew rate.) SPECIAL MONUMENTS: Special Monuments will be charged at cost + 10%. SPECIAL EQUIPMENT: Any special equipment required on a job will be charged at rental cost + 10%. OVERTIME RATES: Jobs requiring work on weekends or holidays will be billed at 1.5 times the standard rate. EaCh project is evaluated to determine the best/most cost effective personnel for that particular project. The number of persons on a field crew is determined in the same manner. There is no cost difference in a 2 or 3 man crew. SCI-IEDULE OF REIMBURSABLE EXPENSES Reproduction-Out of-House Vellum Prints Mylar Prints Bond Prints Actual Expense x 1.5 $10.00 / sheet $ 20.00 / sheet $1.50 / sheet Boundary surveys, exkibits, etc. requiring a lump sum price, please call for a quote ~ 972-221-9439. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2002 Fire Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance approving an Imerlocal Ambulance Agreemem between the City of DeNon and the City of Sanger for ambulance services; and declaring an effective date. BACKGROUND The Imerlocal Agreemem for Ambulance Service between the City of DeNon and the City of Sanger began in 1980 and provides for the cominuation of emergency medical services to the small cities within our service area. The revenue generated from ambulance transport fees only recovers a small portion of our actual costs to provide service to the small cities. Since 1998, the City has incrememally increased the charge to help recover the actual cost of providing the service. In addition to the increasing cost of providing ambulance service, the number of ambulance runs being made to the small cities has cominued to increase. The proposed per capita charge of $17.00 combined with ambulance transport fees still recovers only a portion of the City's cost to provide service. PRIOR ACTION/REVIEW Council approved this agreement last year and in all years since 1980. The contract amount has changed from $16.00 per capita in FY02-03 to $17.00 per capita in FY03-04. The population total as recorded by the North Central Texas Council of Governments is 4800. FISCAL INFORMATION Cost-recovery from this agreemem will total $81,600 for FY03-04. EXHIBITS Ordinance Agreement Respectfully submitted: Ross Chadwick Fire Chief ORDINANCE NO. AN ORDINANCE APPROVING AN INTERLOCAL AMBULANCE AGREEMENT BETWEEN THE CITY OF DENTON AND THE CITY OF SANGER FOR AMBULANCE SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council of the City of DeNon hereby approves an Imerlocal Agreemem for Ambulance Service between the City of Demon and the City of Sanger, a copy of which is attached hereto and incorporated by reference herein, and the Mayor, or in her absence the Mayor Pro Tem, is hereby authorized to execute said Agreemem on behalf of the City. 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 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documcms\Ordinanccs\03\ambulancc scrvicc-sangcr.doc INTERLOCAL AGREEMENT FOR AMBULANCE SERVICE BETWEEN THE CITY OF DENTON AND THE CITY OF SANGER The City of Denton currently provides emergency medical services to the citizens of Denton. The City of Sanger would like to contract with the City of Denton to receive emergency medical services for its citizens. Pursuant to Chapter 774 of the Tex. Health and Safety Code (Vernon 1992) and the Interlocal Cooperation Act, Tex. Gov't Code Ann. §791.001, et seq., (Vernon 1994), a city may contract to provide emergency medical services to the county or another city. WHEREAS, both the City of Denton and the City of Sanger have the authority to perform the services set forth in this Agreement individually and in accordance with Tex. Gov't Code Ann. §791.011(c)(2); and WHEREAS, the City of Sanger will make all payments for services out of available current revenues and the City of Denton agrees that the payments made by the City of Sanger hereunder will fairly compensate it for the services performed; NOW, THEREFORE, WITNESSETH This Agreement is made on the day of City of Denton, Texas ("Denton"), and the City of Sanger ("Sanger"). ,2003, between the The parties agree as follows: 1. Definitions. Erae~eney Medical Servlees or E.M.S. means personnel and ground transportation vehicles used to respond to an individual's perceived need for immediate medical care and to prevent death or aggravation of physiological or psychological illness or injury. 2. Denton to Provide EMS to Sanger. Denton shall provide emergency medical services to Sanger in response to requests for emergency medical services in accordance with this Agreement. All requests for emergency medical services for persons residing in thc corporate limits of Sanger shall be commtmicated to Denton in the manner specified by Denton. 3. Discretion in Providing E.M.S. Sanger understands that Denton must also respond to requests for emergency medical services for persons in Denton and that Denton has other contracts to provide emergency medical services to other entities. Denton shall have the sole right and discretion, without being in breach of this Agreement and without liability to Sanger, to determine: (a) Whether or not to respond to a request for medical emergency service; Whether and when personnel or equipment are available to respond to a request for emergency medical service; (c) The order is which to respond to a request for emergency medical service; and (d) The time in which to respond to a request for emergency medical service. 4. Service Fee. In consideration for providing emergency medical services to Sanger, Sanger agrees to pay to Denton the sum of $81,600.00 for fiscal year 2003-2004 based on a population of 4,800 multiplied by $17.00. The population figure used is contained in the latest edition of the North Central Texas Council of Governments estimate for January l, 2003. The annual payment shall be paid to Denton in equal quarterly payments on or before October l, January l, April 1, and July l, of each annual term. Denton may, after giving prior notice, suspend service to Sanger during any period of time Sanger is delinquent in the payment of any undisputed service fee. 5. Patient Charges. In addition to the service fee paid by Sanger, Denton may charge and collect from persons provided emergency medical services, the patient fees established by ordinance of Denton. 6. Governmental Immunity Not Waived. Neither Denton nor Sanger waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims made or arising from any act or omission resulting from this Agreement. 7. Term. The term of this Agreement shall be in one-year increments, beginning on October 1, 2003 and continuing to September 30 of the following year and thereafter from year to year until terminated in accordance with this Agreement. 8. Termination; Default. Either party may terminate this Agreement at any time without cause by giving 90 days advance notice in writing to the other, specifying the date of termination. If either party breaches a provision of this Agreement, the other party shall give the defaulting party written notice of the default. Should the defaulting party fail to correct the default within thirty days of the date notice of default is sent, the other party may declare the Agreement terminated. Sanger shall be liable to Denton pro ram for the payment of emergency medical services provided up to the date of termination. 9. Notices. All notices sent under this Agreement shall be mailed, postage prepaid, to the respective addresses, as follows: City Manager City of Denton 215 E. MeKinney Mayor City of Sanger P.O. Box 1729 Page 2 of 4 Denton, Texas 76201 Sanger, Texas 76266 10. Agreement Not for Benefit of Third Parties. This Agreement is not intended and shall not be construed to be for the benefit of any individual or create any duty on Denton to any third party. 11. Assignment. Neither party shall assign this Agreemem except upon the prior written consent of the other. 12. Venue. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be conswaed in accordance with the laws of the State of Texas. EXECUTED on the day of ., 2003. CITY OF DENTON, TEXAS BY: EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY CITY OF SANGER Page 3 of 4 ATTEST: SECRETARY Page 4 of 4 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 Fire Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance approving an Imerlocal Ambulance Agreemem between the City of DeNon and the City of Ponder for ambulance services; and declaring an effective date. BACKGROUND The Imerlocal Agreemem for Ambulance Service between the City of DeNon and the City of Ponder began in 1980 and provides for the continuation of emergency medical services to the small cities within our service area. The revenue generated from ambulance transport fees only recovers a small portion of our actual costs to provide service to the small cities. Since 1998, the City has incrememally increased the charge to small cities to help recover the actual cost of providing the service. In addition to the increasing cost of providing ambulance service, the number of ambulance runs being made to the small cities has cominued to increase. The proposed per capita charge of $17.00 combined with the ambulance transport fees still recovers only a portion of the City's cost to provide service. PRIOR ACTION/REVIEW Council approved this agreement last year and in all years since 1980. The contract amount has changed from $16.00 per capita in FY02-32 to $17.00 per capita in FY03-04. The population total as derived from the Ponder City Secretary has changed from 507 to 522. FISCAL INFORMATION Cost-recovery from this agreemem will total $8,874 for FY03-04. EXHIBITS Ordinance Agreement Respectfully submitted: Ross Chadwick Fire Chief ORDINANCE NO. AN ORDINANCE APPROVING AN INTERLOCAL AMBULANCE AGREEMENT BETWEEN THE CITY OF DENTON AND THE CITY OF PONDER FOR AMBULANCE SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council of the City of DeNon hereby approves an Imerlocal Agreemem for Ambulance Service between the City of DeNon and the City of Ponder, a copy of which is attached hereto and incorporated by reference herein, and the Mayor, or in her absence the Mayor Pro Tem, is hereby authorized to execute said Agreemem on behalf of the City. 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 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documcms\Ordinanccs\03\ambulancc service-ponder.doc ORDINANCE NO. AN ORDINANCE APPROVING AN INTERLOCAL AMBULANCE AGREEMENT BETWEEN THE CITY OF DENTON AND THE CITY OF PONDER FOR AMBULANCE SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council of the City of DeNon hereby approves an Imerlocal Agreemem for Ambulance Service between the City of DeNon and the City of Ponder, a copy of which is attached hereto and incorporated by reference herein, and the Mayor, or in her absence the Mayor Pro Tem, is hereby authorized to execute said Agreemem on behalf of the City. 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 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documcms\Ordinanccs\03\ambulancc service-ponder.doc INTERLOCAL AGREEMENT FOR AMBULANCE SERVICE BETWEEN THE CITY OF DENTON AND THE CITY OF PONDER Re. eltal~ The City of Denton currently provides emergency medical services to the citizens of Denton. The City of Ponder would like to contract with the City of Denton to receive emergency medical services for its citizens. Pursuant to Chapter 774 of the Tex. Health and Safety Code (Vernon 1992) and the Interloeal Cooperation Act, Tex. Gov't Code Ann. §791.001, et seq., (Vernon 1994), a city may conract to provide emergency medical services to the county or another city. WHEREAS, both the City of Denton and the City of Ponder have the authority to perform the services set forth in this Agreement individually and in accordance with Tex. Gov't Code Ann. §791.0I l(c)(2); and WHEREAS, the City of Ponder will make all payments for services out of available current revenues and the City of Denton agrees that the payments made by the City of Ponder hereunder will fairly compensate it for the services performed; NOW, THEREFORE, WITNESSETH This Agreement is made on the . . day of of Denton, Texas ("Denton"), and the City of Ponder ("Ponder"). 2003, between the City The parties agree as follows: 1. Definitions. Rmergeney Meclleal gerviee~ or E.MR means personnel and ground transportation vehicles used to respond to an individual's perceived need for immediate medical care and to prevent death or aggravation of physiological or psychological illness or injury. 2. Denton to Provide EMS to Ponder. Denton shall provide emergency medical services to Ponder in response to requests for emergency medical services in accordance with this Agreement. All requests for emergency medical services for persons residing in the corporate limits of Ponder shall be communicated to Denton in the manner specified by Denton. 3. Discretion in Providing E.M.S. Ponder understands that Denton must also respond to requests for emergency medical services for persons in Denton and that Denton has other contracts to provide emergency medical services to other entities. Denton shall have the sole right and discretion, without being in breach of this Agreement and without liability to Ponder, to determine: (a) Whether or not to respond to a request for medical emergency service; Whether and when personnel or equipment are available to respond to a request for emergency medical service; (c) The order is which to respond to a request for emergency medical service; and (d) The time in which to respond to a request for emergency medical service. 4. Service Fee. In consideration for providing emergency medical services to Ponder, Ponder agrees to pay to Denton the sum of $8,874.00 for fiscal year 2003-2004 based on a population of 522 multiplied by $17.00. The population figure used is based on the most recent figure available from the Ponder City Secretary's office. The annual payment shall be paid to Denton in equal quarterly payments on or before October I, January 1, April I, and July 1, of each annual term. Denton may, at, er giving prior notice, suspend service to Ponder during any period of time Ponder is delinquent in the payment of any undisputed service fee. 5. Patient Chargea. In addition to the service fee paid by Ponder, Denton may charge and collect from persons provided emergency medical services, the patient fees established by ordinance of Denton. 6. Governmental Immunity Not Waived. Neither Denton nor Ponder waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims made or arising from any act or omission resulting from this Agreement. 7. Term. The term of this Agreement shall be in one-year increments, beginning on October 1, 2003 and continuing to September 30 of the following year and thereat~er from year to year until terminated in accordance with this Agreement. 8. Termination; Default. Either party may terminate this Agreement at any time without cause by giving 90 days advance notice in writing to the other, specifying the date of termination. If either party breaches a provision of this Agreement, the other party shall give the defaulting party written notice of the default. Should the defaulting party fail to correct the default within thirty days of the date notice of default is sent, the other party may declare the Agreement terminated. Ponder shall be liable to Denton pro rata for the payment of emergency medical services provided up to the date of termination. 9. Notices. All notices sent under this Agreement shall be mailed, postage prepaid, to the respective addresses, as follows: City Manager City of Denton 215 E. MeKinney Mayor City of Ponder P.O. Box 297 Page 2 of 4 *~ ~Our Doc um c~L~\Contxac ts~O3~m bulz~ce c~trac¢.po~dcr doc Demon, Texas 76201 Ponder, Texas 76259 10. Agreement Not for Benefit of Third Parties. This Agreement is not/ntended and shall not be construed to be for the benefit of any individual or create any duty on Denton to any third party. 11. Assignment. Neither party shall assign this Agreement except upon the prior written consent of the other. I2. Venue. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance w/th the laws of the State of Texas. EXECUTED on the day of ,2003. CITY OF DENTON, TEXAS BY: EULINEBROCK, M AYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY CITY OF PONDER Page 3 of 4 ATFEST: MAYOR BY: SECRETARY Page 4 of 4 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 General Government Betty Williams, Director of Management & Public Information Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance amending Chapter 8, Denton Cable Television Ordinance, of the City of Denton Code, Provisions for applications and fees and provisions for small cable providers, providing a severability clause; providing a savings clause; providing for a penalty not to exceed $500.00 for violations of the ordinance; and providing for an effective date. BACKGROUND: The recent application for a cable television franchise by Denton Telecom Partners I, LP d/b/a Advantex Communications (Advantex), revealed that some revisions to the Denton Cable Television Ordinance were needed. These revisions will allow the City to grant Advantex an Interim Grant of Authority for the cable service being provided to the Robson Ranch development. This cable system is considerably smaller than the incumbent cable provider (Charter Communications), and Advantex has stated that they do not wish to provide cable service in Denton outside of Robson Ranch. We therefore needed to adjust some of the requirements of the Denton Cable Television Ordinance in an effort to not be a barrier to cable television competition. These adjustments still give the City the flexibility needed to negotiate and regulate the terms of any cable franchise agreement. OPTIONS: 1) Approve the ordinance amending Chapter 8, Denton Cable Television Ordinance, of the City of Denton Code. 2) Deny the ordinance and direct staffto reformat the Interim Grant of Authority with Advantex to comply with the provisions of the existing Denton Cable Television Ordinance. RECOMMENDATION Staff recommends option #1 ADA/EOE/ADEA www.cityofdenton.com ' (TDD 800-735-2989) October 7, 2003 Revisions to Denton Cable Television Ordinance Page 2 of 2 PRIOR ACTION/REVIEW (Council~ B°ards~ Commission): 1. Legal Status Report on May 2, 2003. 2. Public Hearing at Council Regular Session, August 19, 2003 3. Council Closed Meeting, September 16, 2003. 4. Council Regular Meeting, first reading granting the Interim Grant of Authority with Advantex, September 16, 2003. FISCAL INFORMATION: None. Prepared by: Cabrales Jr. A A~ P~ic Information Officer B~tty Williams Director of Management and Public Information Attachments 1. Ordinance ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) S:Our Docunlelt ~Ordhlmlce~0 3 Chapt~ 8, Cable Telex ision doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 8, CABLE TELEVISION, OF THE CITY OF DENTON CODE PROVISIONS FOR APPLICATIONS AND FEES AND PROVISIONS FOR SMALL CABLE PROVIDERS; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500.00 FOR VIOLATIONS OF THE ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Advantex Communications, a small cable television provider, has requested an interim grant of authority to provide cable television services within the Robson Ranch community; and WHEREAS, Chapter 8, Cable Television, regulations do not provide for small cable television providers; WHEREAS, the City Council of the City of Denton desires to amend Chapter 8, Cable Television, to allow for small cable television providers; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. That Section 8-4, 8-31, 8-56, 8-127 and 8-8-32 of Chapter 8, Cable Television, is hereby amended to read as follows: Replace the Section 8-4 with the following paragraph: Sec. 8-4. Duration of franchise grant. The term of any franchise granted by the city pursuant to this chapter shall be for a period of fifteen (15) years from and after the grant and acceptance date of the franchise to be awarded, subject to conditions and restrictions as provided in this chapter, and provided that the mayor and city council shall have the fight to review such franchise periodically at such times as the mayor and city council may from time to time elect to do and as provided in this chapter. An interim grant of authority to operate a cable system may be granted for a period of less than 15 years. Extensions, renewals, or transfers of a cable franchise agreement may be for a period of less than 15 years. Amend the first and second sentence of Section 8-31 to read as follows: Sec. 8-31. Written Application. No license, franchise, extension, transfer or renewal thereof for cable television shall be issued except upon written application to the city council on an application form prescribed by the city council. Such form shall contain such information as the city council may prescribe as to the citizenship and character of the applicant the financial, technical, legal and other S:Our Docunlelt ~Ordhlmlce~0 3 Chapt~ 8, Cable Telex ision doc qualifications of the applicant to operate the system; complete information as to its principals and ultimate beneficial owners, including in the case of corporations, all stockholders, both nominal and beneficial, owning one (1) percent or more of the issued and outstanding stock and, in the case of incorporated associations all members and ultimate beneficial owners, however designated; complete information on the extent and the quality of the service, number of channels, hour of operation, variety of programs, local coverage, safety measures, installation and subscription fees, and such other information as the city council may deem appropriate or necessary. Amend Sec. 8-56 by adding the following subsection (c): Sec. 8-56. Franchise required, duration; exclusivity. (c) The franchise may be extended or transferred in accordance with federal or state law, not to exceed fifteen (15) years, as in the opinion of the city council will serve the public interest. Add the following sentence after the last sentence of subsection (a) of Section 8-127: Sec. 8-127. Security Fund. The City may accept a letter of credit or security bond in an amount determined by the City Council for smaller cable systems. Add the following sentence after the last sentence of subsection (a) of Section 8-132: Sec. 8-132. Functions to be regulated Smaller cable systems may be served by an office within 20 miles of the city. SECTION 3. Any person violating any provision of this ordinance, shall upon conviction, be fined a sum not exceeding $500.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 4. If any provision of this ordinance or application thereof to any person or circumstance is held invalid by any court, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares that it would have enacted the remaining portions despite any such validity. SECTION 5. Save and except as amended hereby, all the sections, subsections, and clauses of Chapter 8, "Cable Television" of the Code of Ordinances of the City of Denton, Texas shall remain in full force and effect. Page 2 S:Our Docunlelt ~Ordhlmlce~0 3 Chapt~ 8, Cable Telex ision doc SECTION 6. That this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 3 AGENDA DATE: DEPARTMENT: CITY ATTORNEY: AGENDA INFORMATION SHEET October 7, 2003 Legal Department Dorothy G. Palumbo, Senior Assistam City Attorney/ Legislative Coordinator SUBJECT: Consider approval of a resolution of the City of DeNon City Council encouraging the inclusion of Transportation Funding in the Scope of the Legislature's Study of possible tax reform, and providing an effective date. BACKGROUND: Because Texas is a "donor" State regarding federally imposed highway user fees and taxes, the Texas Legislature is asking Congress to increase Texas' share of federal highway user fee revenue from 88% to 95%. However, the State currently allocates only 37% of the state highway user fees and taxes to transportation. Out of $6.9 billion in annual state highway user fee and tax revenue, the Legislature appropriates less than $2.9 billion to the state highway fund. $3.2 billion goes to support general governmem services and nearly $.7 billion goes to the available school fund. This diversion of highway user fee revenue is considered by many to be poor public policy in light of the urgent need for increased investment in transportation infrastructure. During the 1990's decade, vehicle miles traveled in Texas increased by 41%, while roadway lane miles increased only by 3%, and roadway congestion increased by 126%. Estimates are that if current trends cominue, delay time from roadway congestion will increase by 350% by 2025. A recem report of the Governor's Business Council Transportation Task Force estimates that Texas needs to invest $78 billion more than current level revenue will support over the next 25 years in order to reduce its peak period travel time penalty to 15% (from 38% now in Houston and 33% now in Dallas/Fort Worth). This resolution asks the Legislature to stop the diversion of highway user fees to non- transportation uses and appropriate those revenues to transportation infrastructure. Attached is a position paper from the North Texas Commission Board of Directors. FISCAL: This study would support the appropriation of more state revenue to transportation infrastructure. OPTIONS: The City Council may adopt the resolution, direct staff to make changes to the resolution or decide not to adopt the resolution. Respectfully submitted, Dorothy G. Palumbo Senior Assistam City Attorney/ Legislative Coordinator S:\Our Documents\Legislation\03 StatekAIS TransportationStudy Res Agenda Info.doc RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS ENCOURAGING INCLUSION OF TRANSPORTATION FUNDING IN THE SCOPE OF THE LEGISLATURE'S STUDY OF POSSIBLE TAX REFORM; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, additional funding is urgently needed for investment in transportation infrastructure to reduce urban roadway congestion, to improve highway safety, and to provide statewide connectivity in Texas' transportation system; and WHEREAS, revenue generated from current-level state highway user fees and taxes can provide the additional funding urgently needed for investment in transportation infrastructure; and WHEREAS, the Legislature appropriated to the state highway fund less than $2.9 billion of the $6.9 billion revenue Texas collected from state highway user fees and taxes in fiscal year 2002; and WHEREAS, the 78th Texas Legislature requested that the Congress return to Texas for needed transportation funding 95% of federal highway user fee revenue collected in Texas, while the Legislature itself allocates only 37% of state highway user fee revenue to fund transportation; and WHEREAS, good public policy dictates that revenue from user fees and taxes be allocated to support the public's use of the services and facilities from which the fee/tax revenue flows; and WHEREAS, select committees of the Texas Legislature are now studying possible tax reform in anticipation of a possible Spring 2004 called session of the Legislature; and WHEREAS, broadening the Legislature's tax reform agenda to include replacement revenue for general government services now funded from highway user fee and tax revenues would be sound public policy enabling the Legislature to allocate highway user fee and tax revenue to fund needed transportation improvements; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1: The Governor, Lieutenant Governor and Speaker of the House are respectfully urged to expand the scope of the Legislature's current study of possible tax reform to include replacement revenue for general government services now funded from highway user fee and tax revenues in order that the Legislature may allocate annual highway user fee and tax revenue to fund needed transportation improvements. SECTION 2: A copy of this Resolution be distributed to state executives and legislators. 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: S:\Our Documents\Legislation\03 StatehA[S Transportation Study Resolution.doc Texas Tax Reform: 2004 Attachment A The Speaker of the House and the President of the Senate have each appointed public school finance committees to develop a recommendation that will fund the Foundation School Program, eliminate Robin Hood, and provide property tax relief. The recommendation is expected to include a substantial tax reform proposal for consideration by the Legislature in Spring 2004. The scope of this tax reform should include transportation funding as well as public school finance. The Legislature allocates 63% of state highway user fee revenues to fund general government services wholly unrelated to transportation. Highway safety and urban mobility needs have become too large to allow continuation of this diversion of highway user fee revenues. Who knows when the next tax reform opportunity will arise? Competing interests and complexities make it a subject that the Legislature rightly chooses to address no more frequently than necessary. Highway safety and the delays caused by urban roadway congestion have reached crisis proportions in Texas. That they haven't received the same level of publicity and attention given school finance ought not make them less important or re'gent public policy issues for the Legislature to address in its current tax reform deliberations. Why should Texans care about urban mobility? · Commuters are spending an inordinate amount of time stuck in traffic going nowhere. This is time lost forever...time away fi.om family. Economic prosperity requires urban mobility. If people and goods cannot move around the metropolitan areas efficiently, growth will shut down, the economy will stagnate, and Texans' quality of life will decline. Urban mobility is important to all of Texas. The four major metropolitan areas make up two thirds of the Texas economy. Their tax base generates the revenue that supports the public services for all Texans--rural as well as urban. Why should Texas invest more in transportation? We're losing the battle. Roadway congestion has already risen to a high level. Texas is home to 3 of the nation's top 6 cities for highest average annual delays due to traffic. And the problem is getting worse. In Dallas/Fort Worth, the typical motorist experienced an annual delay of 74 hours in 2000, up from 47 hours in 1994. 90% of the expected 2000-2025 Texas population growth of 9 million will live in one of the four major metropolitan areas or the border region...Dallas/Fort Worth, Houston, San Antonio, Austin, or the Border (Brownsville, Laredo, E1 Paso)...where 15 million of 21 million Texans already live. During the 1990's decade, vehicle miles traveled increased by 41%, roadway lane miles increased by 3%, and roadway congestion increased by 126%. If current trends continue, by 2025 delay time from roadway congestion will increase by 350%. · Delay resulting from roadway congestion in the major metropolitan areas drains $6 billion annually from the Texas economy. Texas Urban Roadway Congestion Measure (in 000s). ' AUSTIN DFW HOUSTON SAN'"ANTONib' 1§~{ .... 2000' "1991 2000 1991 "2000 1991 2000 Tray61 Time Index 1.13 1.27 1.19 1.33 1,25 1.38 1.07 i.23 "Ann'ua'lDelay(Person-Hours)6,420 20,640,.59,710 i41,125 52,2J~0 120,945 6,850 25,505' Hours of Congestion 5.0 7.2 5.6 7.0 6.0 7.0 3.0 6.6 Percent of Congested Travel 35 62 40 59 53 65 19 52 Congested L.~fi~Miles 3~ 58 35 50 48 55 23 45 Annual Lane~miles Needed 58 i 6~' 232 305 114 194 ........ 56 73 conge~t.!o..n..C.ost ($million) 95 400 885 2,640 780 ~2,285 100 ' ~475 Measuri~ .... 1991-2000 Rate of'ihcrease ....... AUSTIN DFW HouSTON SAN ANTONIO- Travel Tirn~ 'Index ...... 108% 774'~ ...... 52% 229% Annual Delay 221% 136% 132% 272% Hours of Congestion .. 44% 25% 17% 120% Percent of Con~..e. st.ed Travel 77% 4'8% ................. 23% 174% Congested Lane Miles 53% "4':j% .............. 15% 96~o' ' Annual Lane-miles Needed 7% ...... 3'~ % 70% '-' 30% c~n§eStion Cost 32~'%" 198% 193% "' 375% What level of investment is needed? What level of return would it provide? Texas will need to invest $179 billion in new construction, reconstruction, and maintenance over the next 25 years to maintain current congestion levels. That is $39 billion more than will be available if current practices and trends continue. To reduce congestion to levels where trips during peak hours take no more than 15% longer than trips during non-peak hours will require $78 billion more. (In 2000, the peak-period travel penalty in Houston was 38%; it was 33% in Dallas/Fort Worth.) The benefit-cost ratio for this $78 billion investment exceeds 5-to-1. The estimated value from less delay, fewer gallons of wasted fuel, and increased efficiencies to business and commerce is $511 billion not counting the 120,000 new jobs that would be created and the 775,000 tons of hydrocarbon emissions that would be eliminated. What source of revenue should fund the additional investment needed? Texas' use of toll revenue to expedite implementation of needed roadway capacity improvements is well-established in Dallas and Houston and is now beginning to expand to other metropolitan areas. Greater use of tolling will generate new revenue that will help address Texas' unmet capacity needs, but it is not a panacea. Public acceptance of tolls in new corridors will be far easier than in existing corridors. Toll revenue alone will not be sufficient to establish and maintain a 1.15 travel time index in Texas' major metropolitan areas. Texas levies a variety of highway user fees that produce enough revenue to fund its transportation needs if the Legislature would allocate that revenue to transportation rather than to general government use. The $3.2 billion now allocated to General Revenue could over the next 25 years fund the additional $78 billion investment needed to reduce to 15% the peak period travel penalty in Texas' large urban areas. July 2003 Delay caused by urban roadway congestion has risen to the level that Texas must increase its level &investment in transportation. How do we rationalize asking Washington to remm 95% of federal highway user fees Texans pay when the Texas Legislature chooses to allocate only 37% of state highway user fees to transportation? Including transportation in the tax reform proposal to address public school finance would enable the Legislature to allocate highway user fee revenues to transportation. For example, if the Flat BAT (business activity tax proposed to the House Select Committee on Public School Finance by David Hartman July 16) were 3.5% instead of 3.0%, Texas could not only fully fund its public school and transportation needs, but also could eliminate the school property tax and several state business taxes including the franchise, natural gas, insurance, utility, and oil production and regulation taxes. Distribution of Texas Highway User Fees & Taxes ....................................... ~'---1~--2-0-'6~ ....... [[~-[*-,~mount to i[ Receiptst ,1 State Motor Fuel Tax* ][$2;S33,611,2981 Motor Vehicle Sales and Use Taxes i[ 2,772,074,075]~1 Motor Vehicle Registration Fees ~[ 742,047,1291~,1 Motor Vehicle Rental Tax ![ 159,621,8441~I Motor Vehicle Inspection Fees ![ 109,414,718I~I 2,768,732,863i~t 3,429,833t~i 159,621,844]~t 70,357,615J~1 Amount to I[[[SHF 006 SHF 006 !~l share $2,078,114,281H~I 73%1 o]I l i o%I 730,019,548[[~I 98% o1 [ o!DI o% Motor Vehicle Certificates sLS_pecial Vehicle Registration Fees Motor Fuel Lubricant Sales Tax ,![ Commercial Transportation Fees Excess Fines from Speeding vi0!atio~Slil Annual Tx Hg~hwy User Fee Revenues ]156,907,585,610J~153,2~8,178,4101~[ $2,88i,446,1641~j 42%[ [ 50/0 distributed to DPS ~L(356,80§,646)I~L ] JI Net available for transportationl~[$2,524,639,518j~1 37% * Constitutionally 25% -- $695.1 million in FY 2002 -- is allocated to the Available School Fund. State Highway Fund, Fiscal Year ending 08/31/02: $5,759,100,000 total revenue [40% federal reimbursements, 50% state highway fees and taxes] $5,524,300,000 total disbursements Data compiled by the North Texas Commission from several sources: Texas Comptroller of Public Accounts Governor's Business Council, Texas' Roadways - Texas' Future www.texasgbc.org (reports) Texas Department of Transportation Texas Transportation Institute, 2002 Urban Mobility Report Texas Transportation Institute, Texas Transportation Researcher o'u~y ~oos AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 Fire Jon Fortune, Assistant City Manager SUBJECT Consider approval of a resolution authorizing the City of Demon to make application for an Emergency Managemem Program Gram (EMPG) 2004 through the State of Texas with appropriate certifications and assurances, as authorized by the Federal Emergency Management Agency (FEMA), and all other applicable laws; and providing an effective date. BACKGROUND The objectives of the gram program are to develop comprehensive emergency management, including terrorism consequence management preparedness, at the State and local levels and to improve emergency planning, preparedness, mitigation, response, and recovery capabilities. The City of Demon was accepted and awarded as a participam in the gram program for 2003. The gram pays 50 percem of eligible emergency management program expenses. PRIOR ACTION/REVIEW This is the first year that a resolution is required to apply for the grant. FISCAL INFORMATION The amoum of gram funds being requested is $92, 829. This gram does not require a local match. EXHIBITS Resolution EMPG Application-Certifications and Assurances Section Respectfully submitted: Ross Chadwick, Fire Chief S:\Our Documents\Resolutions\03\EMPG res.doc RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY OF DENTON TO MAKE APPLICATION FOR A EMERGENCY MANAGEMENT PROGRAM GRANT (EMPG) THROUGH THE STATE OF TEXAS WiTH APPROPRIATE CERTIFICATIONS AND ASSURANCES, AS AUTHORIZED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA), AND ALL OTHER APPLICABLE LAWS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, has an emergency management program to prepare and facilitate emergency preparedness; and WHEREAS, the City of Demon, Texas, has a special concern to be prepared in case of emergency to preserve the life and property of all citizens and visitors of the City of Demon, Texas; and WHEREAS, the City of Demon, Texas is participating in the preparation for emergencies through the use of the Emergency Managemem Program Gram (EMPG); and WHEREAS, each year EMPG grams are renewed at the request of participating jurisdictions; and WHEREAS, the City of Demon, Texas, wishes to make a gram application with the Departmem of Public Safety for funds grained by Federal Emergency Managemem Agency (FEMA) to renew EMPG funding; and WHEREAS, in carrying out these activities, the City of Demon, Texas, imends to comply with all requirements of the gram application; and WHEREAS, the City Council deems it in the public imerest to authorize the developmem and submission of the gram application; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City Council of the City of Demon, Texas, authorizes the gram application and submission, with all necessary certifications, grant agreements and other documents as well as appropriate assurances for entitlement of funds including those stated in Exhibit "A" in order to obtain a grant under the Emergency Management Program Grant Program. SECTION 2: That the City Council authorizes and directs the Mayor or City Manager, or his designee, to represem and act on behalf of the City of Demon in applying for and working with the State, in regard to such grant application. S:\Our Documents\Resolutions\03\EMPG res.doc SECTION 3. That all prior actions of the Mayor, City Manager, and other City officials in executing various documents and certifications with regard to said grant application are hereby approved and ratified. SECTION 4. That the City Secretary is hereby authorized to furnish true, complete and correct copies of this resolution to all interested parties. SECTION 5. That this resolution 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: CERTIF! CATION & ASSURANCES EXHIBIT "A" COMPR EHENSIVECE RTIFICATI ON This codification is a meter iai representa~ on of fact upon which re fiance will b e pi aced by the ag ency th at will award the grant. If it is later deter mined that the grantee kn owingty rendered an erroneous ceCdficatio n, the age ncy, in addition to a ny other rome dies avail able to t he federal government, ma ytake available action. 1. Certific ation Re garding Lo bby lng If this applicali on is for feder al funds in excess of $100,0 00,1 cerlJfy to ~he best of m y knowledge a nd belief, A No federal appropriated funds have been paid or ~II be paid to any person for mfluence an o~cer or employee ora ny agency, a member of Congress, an of~cer or employee of Congress, or a n employeeof a member ofC ongress in connedion with the awarding of any federat contract, the making of a ny federal grant, the reek lng of any federal loan, the entering ~nto any cooperative agreement, and ~he extension, continuation, renewal, amendment, or me dification of any federal contract, grant, Joan, or ceopemtive agreement. B. If any non-federal funds have been paid or will be paid to any person for infuendng or attempting to influence an officer or employee ofanyagency, a member of CO ngress, an officer or employee of Congress, or an employee of a officer or employee of a member of Con gress in co nnedion with this federal contract, grant, Ioan, or ceo perative agreement, ch eck h ere []. If checke d, ~he u ndersigned sh all complete a nd a~ch a "Disd osure Form to Rep orr Lobbying" (Standard Form LLL) to the se certifice§o ns, and C. The undersigned shall require that t he lan guage of this ce rtificalJon b e indud ed in th e award d ocume nts for allsub-awards atallfiersan dthatalI sub-redpientsshatl certify accordingly. 2. Drug-Free Workplace Certificatio n This applicafi on isfor federal funds. T he applicent cert Ifies thatit will provide a drug-freeworkplaca by: A Pdbl ishing a statement notifying employees that the unl awful manufacture, dis~j bution, dispensing, possession, or use ofa controiled substance is prohibited in grantee's workplace and spedfying the aclJons that will be taken ag ainst employees for viol ation ofsuc h p rohibit~on. B. Establishing a drug-free awarenessprogramto inform employ eesabout:: 1. The dangers of drug abuse in the workptace; 2. The applicant's poticyofmai ntaining a drug-free workplace; 3...~ y available d rug cou nselh g, rehab ilitation and employee assistance pr ograms; and 4. The penaltiesthat me y be imposed upon employeesfor d rug abuse violations. C. Making it a re q uirement th at each e mptoyee to be en gaged in the perf orme nco of the gr ant be give n a co py of the statementrequ ired by paragraph (A). O. Notifying the emp[oyee i n the stat ement req uired by paragraph (A) that, as condition ofem ployment un der the grant, the emp Ioyee wll' l. Abide bythe termsofthe statement, and 2. Notify the em ployer of an y criminal drug statute convis on for a violati on occurfin g in the workplace not later than five days aftr such cenvictio n. E Notifying the agency within ten days after re ceiving no~ice under subparagraph (D)(2) from an em ployee or otherwise receiving actual notice of such con viction. F.Taking one ofthe folt owing actions with respectto an yemployee who is so convicted. 1. Taking appropriate personnel action against such an em p[oyee, up to an d indu ding termi nation; or 2. Req ~id ng such employee to p arlidp ate satisf actori ly in a d rug abuse as.sis tance or r ehabilita~on pro gram approved for such purposes bya fedeml, state, or Iocal health, law enforcement, or other appropriate agency. G Making a good faith effort to continue to maintain a drug-free workplace through the implementation of paragraphs (A), (B), (D), (E), and (F). 7/03 3. Audit Ce rtiflcatton- Annual Re porting Re quire me nt This applicat~ on is for federal funds. [ certify (initial th e appropriate ch elco): The applicant agency curr.e ntJy,expe~.d,s comb in. ed fa.der.al fun,ding of $30 0 therefore, is re quired to submit an annual single auoit ay an inoependem auditor .... 000 er mot- Single Au dit/~ctAmendments of 1996 and OMBCircularA- 133. ,.aae i n accorda. A u and, "~ With ~he The applicant agency cur. r. entiy ex?ends c.om. bined fed..e, raJ ,fun. ding of less th therefore is e xempt from the Sing [e Auoit.~Y:t ano can notc~argeauoitcosts.- - . at$3OOon,~^ , ~ tu a Tecler a , ,~uu and however that the Texas Department nf Public Safety may renuire a ~:,A.. I grant un,~ Circular A-133. - ...... ~cu sCope audit as define~'~:~B,__ 4. EqualOpportunity Ran (EEOP)Ce rtificaflon- Annual Re porting Re quimment Definitions: Tv~e I Entity NOT'EducatJrequired,°naVmedical/n° n-profit instJtutio n/Na bye America n Tribe - cer~fica~an re quired (initial below); E EOP Type I~ Entry /~t other redpients receMng more th an $25,000,.bu.t not more than $500 000 - below); or ganizat~ons must mainta in EEO P on fi le mr possibl e audit i¢ ~.'~ ...... ,~. require4 · ~o ui~ar~Iz~tJoP[ ha~ ~_ ~ ~JHl~al employees; a nd o -~re thnn Type Ill Entity For-profit enfit~ es an d state a nd Iocal governments rec eivi ng $ 500,000 or more - cer~l~ca~an required ([nil] al be~ow); the organ ization mustsubmitan E~CPtoCffice for Civil Ri ghts(OCR) forappr oval, If vour or¢lantzatlo n is a Tv~e I. II, o rlll E~ titv, ~/ease in ~rial one of the follo win~E.' I certify this organization is a Type I Entity_. Thisen~Jt. wiiic aganstd scrm nat~on n any pragramor activity (28 cFR ~ 422(3R~ i-~--- u[,p~y - . ~ '---/, ,~ ,m required to . ~ .~-,u~ons Employment Oppodu nfty Pfa n, but will comply wi~h equal employment opportun ~v r, ro~.___maln~m an Eoual DepartmentofHealt h and Human Se~c es(28 CF R42,302). '. ~ u.am gut~e inesef~the I certify this organiza t[on is a Type II E~rltity the t e malays I~_~. thn. ~=n wilt (:om pIy,~th the, prohibitions ,a? in.st disc r}_mina~on in any program ~r ~. This entity not requ ired m main[a in an r-qual ~"np ioyme nt L~Pportunit y Plan (28 CFR 43 ..... '~n. ~...~o~ ~eq.)~'N§. 42.2 03), but is I certify this organization is a ~'we II Entity that employs 50 or will corn ply with he proh ibi§onsagains~disC riminalJon in any prooram or~ ~,..~',~ Thi formulated an equal employment progr am (28 CFR 42.301 et sen ~ ~ ........ § 42..203'~__\ .... Y Governor/CCG ]forapproval upon award ora granL' ..... , ,~ on hie ,n the [Of~c~'~3"~fn~aS~e I certify this organiza tlon is a Type III Ent~. This entity will comply Wl~ the prohi against discrimination in any program or adavity (28 CFR§ 42.203), and has formula,~- emplo~4~ent opportunityprogram (28 CFR42.301 etse q.), that will be sub mitted to , ~u an equa I Mana.qement/~lenc y for ap proval u pon award ora grant 5. BepartmentCertlflcatlon- AnnualReportlngRe quimment If ~hfs atp#cation is for feder~ fun ds in excess of $ 25,000, f certify t hat (initial the approp~ate chc~ce~ By submissfon of this proposal, that neither the applicant a,,e ........ ' :' . de~ed, suspended, proposed for debarment, deal ,red ineligible, or ~.~l;~';,,';;t;~udPen;~PoamIs are pr this ~ransec~o n b y a ny federal depadme nt or age ncy, If I a m unable to ce rlify: m pa~d Pa~e n ~ t am un able to cer~f y the ab eve state ment and h ave a~ched a n explanatian to this app lice§ on. Appilcan~ s Organizaflo n Project Prlnt~l Name =nd TI ~e o f Aulfl erlzed Offic! at ~>EM-~I 2 7/03 CON SOLIDATED A SSURA NCES Applicants mu st complete thi s form before the y w~ll receive state and/or federal funds. Redpients of state and/or federal funds must fulty understand and comply with these requirements. Failure to comply may result in th e withholding of funds, terrain arian of the a ward, or other san ctions. FEDER AL ASSLIR ANCES The applicant hereby assures and certifies compliance with afl fed emi statutes, regulations, policies, guidelines, and requirements, including CIVIB Circulars No. A-21, A-110, A-~22, A-~28, A-87; Education Department General Administrative Regulations (EDGAR}; E.O. 12372 and Uniform A dministmtl ve Require ments of Grants and Coope rative Agreements - 28 CFR, Pa rt 66, Common Rule , that govern the application, acceptance an d use of Fe demi funds for this project. A Isa, the Applicant assures and certifies that: 1. Le_qal Authod t~. It possess es legal authority to ap ply for the grant, that a reseI u~Jon, motion or sim ilar ac~on has be en duly adopted or passed as an offidal act ortho applica nfs gov erning body, a uthonzi ng the fi[ ing of the application, including all understandings and assurancesco ntein ed 2. Displaced Persons. ltwdl comply with requirements of the provisions of the Uniform Relocation Assistance and Reat Pro party ,~2qu isitJons (4 2 USC §§ 4601 - 4655), which provides for fair and equitable ~'ealment of persons displaced asa resu ItofF ederal and Federally assisted programs. 3. Political A cttv',~y., It will comply with requimments of the provisions of F ederaJ law which limit certain political a~vifies of employees of a State or local unit of government whose prindpa[ employment is in connection with an ac~vit y fina nced in whole or in part b y Federal grants (5 USC § 15 01, e t seq.) 4, FairLa borSta r~dards Act. It will comply with he rain imum wage and maximum hours provisionsofthe Federal Fair Labor Standar ds ~ (29 USC §§ 2 01 - 219) if ap plicable. 5. Confllc toflnt erest. It will establish safeguards to prohibitempl oyeesfromusi ng their posi~onsfor a purpose that is, or g ives ~he appearance of being mo~vated by a desire for private gain for themselves or others, par~culartytho se with whomthey have family, business, or other ties. Exan~natlonofRecords. ttwillgivethesponsoringagencyortheComp~'otlerGeneraI, threughanyauthodzed representaf~ve, a~cess to and the right to e xar~ne a II records, books, pap ers, or documen ts retated to the grant. 7. ,Compliance with Requirements. It will comply with ail requirements imposed b y the Federal sponsoring agency concerning spec~ al re quirements afl aw, program requirements, an d other adm inis~'ative requirements. 8. EPA Violating Facilities. It will ensure that the fadli~es under its ownership, lease or supervision which shaII be utilized in the accomplishment of ~e project are not lfsted in the Environmental Protection Agency's (ER%) IistofMol atJng FadJities, a nd that will notifythe Fed eraI grantor agencyof the receJ ptofa nycommun ication from bhe Direc~r of the EPA ~ ce of Federal ,~c~ivi~es indicating that a f acilit y to be used in the project is under consideration f or listing by the EPA o Flood lnsumnce. It will comply with the flood insurance purchase requirementsofSect ion 102(a)ofthe F load Disaster Prate ction ~ (Ch. 50 USC § 400I). This secti on requ ires, on and after Marc h 2, 197 5, the purch asa of flood insurance in oommu nities where such insurance is available as a condition for the recei pt of a ny Federal financial ass[stance for cons~'udJon or acquisition purposes for use in any area that had been identitied bythe Secretary of th e Dap artment of Housi ng a nd Urban Development as a n area hay lng spec iai flood hazards, The phrase "Federal ~nandal assistance" includes any form of loan, grant, guaranty, ~nsurance payment, rebate, subsidy, disast er assistanc e loan or grant, or any other for m of direct or indirect Federal assistance. 7~03 10. Historic Fmservation, it will assist the federal grantor agency in its compliance with Section 106 of the Nationat Historic Preservation /~ct of 1960, as amended (16 USC § 470), Executive Order 11593, and the Archeotogical and Historical Preserva'~ on Act of 1966, (1 6 USC § 5 69a-1, et seq.) b y (a) consulting wth the State Historic PreservationC~cer(SHPO) on the conduct ofinvestigatJons, asnecess ary, toidentJfypropedJes listed in or eligible for inclusion in the National Register of Historic R aces that are subject to adverse effects (see 36 CFR Part 800.8) by the actv i~y, and notifying the Federal grantor agency of the existence of any such prope~es, a nd by (b) corn plying with all requirements esta bIished by the Federal grantor agency to av old or mitigate adverse effects upon such pro perle s 11. Complian ce with Lawsand Guides. It wi[[comp[y, a nd ass ure the compliance of allitssubgranteesand contractors, with the applicable provisions of 'l~t~e I ofthe Omnib us Crime Control and Sa fe Streets /~ct of 196 8, asamended, the Juvenile J usdcean d DelinquencyPrev entJon Act, ortho MctimsofCri me/~;L, asap propdate; the provis ions ofthe current edi~o n and ail ot her applicable Federal Iaws, o triers, drcuI ars, or reguta~ ohs. 12. Complla nco with Code of Federal Re,qula tions. [t will comply with th e provisions of 28 CFR applicable to grants and cooperative agreements including Part 18 A dminis1~atJve Review Procedure; Part 20, Crimin al Juice Informa tion System; Part 22, Confi denlialityofld entifiabte Rese arch and Statis~c al Informatio n; Part 23, Criminal Intet igence Systems Operatin g Folic~es; Pad 30, Intergovemmenta[ Review of Froc edures for tmpIemen~ng the Na¢onal Environmental Policy ~ Pa rt 63, Floodplain Management and Wetland Proteclion Procedures; an d Federal laws or regulatJo ns applicable to Federal Assista nco Progr ams. 13. Nondiscrimination. It will comply, and ail ifs contractors will comply, with the non-discriminations requirements of the Omnibus Crime control and Safe Stre ets/~t of 1968, as amend ed, (42 USC & 3789(d)), or Victms of Crime Act ( as appropriated); Tide VI of the dvi[ Rig hts ,~ct of 1964, as amended; Secton 504 of the rehabilitation ~ of 1973, as amended, Subfi~ e A T~tie II of the Americans W~th Disabilides ~ (ADA) (1990); Title IX of the Education Amendments of 19 72[ The age Discri minafion ~ o f 1975; Department of Justice N on-Discrimina§ on Regula~ons, 28 CFR part 4 2, Subp arts C,D,E, and G, and Dep adment o f Juice Regulations on disability discr iminatJon, 28 CFR Part 35 and part 39. A In the eve nta federal or state court or federal or state adm inistmtJve agency makes a fin ding of discrirdnadon a~ter a due process hear lng on the grounds of race, color, relig ion, national odgin, se x, o r disability against a re dpient of funds, the r edpient will forward a copy of t he finding to t~e Ol~ce for dvil Rights, O~ce of Justice Programs. B. [t will provide and Equal Em ptoyment Cpp ortunity Program (EEOP) if requir ed to ma intain one, where the applications is for $500,0 00 or mere. 14. Coastal Ba rri ers. it will comply with t~e provisions of the Coastal ~ar tier Resources Act (16 ~ & 3501, et seq.) which prohibits the expenditure of most new Federal funds wi~in ~he units of the Coast al Barrier Resources System. 15. Suppla nttnt:l. Prohibit .ipn.~ It will use funds to supplement exisdng funds for program activities and may not replace (supplant) non-Federal funds hat have been appropriated for the same purpose. The Applicant understands th at pote ntJal su pp[andng wilt be the subject of mo nibring and audit. ¥f ola~ OhS can result in a range of penatlJes, ~nd uding suspension of future funds under bis Pro gram, susp ension or debarment from Federatgrants, recoupment of monies pr ovided un der this g rant, and dvi I and/or criminal penalties. STATE ASS U RANCES The applicant hereby assures and car~fi es compliance with all state stat utes, regulations, policies, guidelines, an d requiremenls i nduding T~tJe 1, Cha pier 3, of the Texas /~dministr atJve Code, and the Uniform Grant Management Standards(UGMS),asthe y retatetoth e application, acceptanceand use of fundsfor this project. A~so, t heappticant assures and ce~fies that Legal Authority, tt possesses leg al authority in the ,Stat e of Texas to apply for the g rant; that a resoluti on, motion or similar action has bee n duty adopted or passed as an offal al act of the applicant's governing body, authorizing the filing of the application, including ail understandings and assurances contained therein, and directing and authorizingthe person identified asthe offid al representative ofthe ap p[icant to actin con nec~ons with the ap plication a nd to pr ovid e such additional inform a~Jon as ma y be required ~ 4 7~03 10. 11. Conflict of Interest. It wilt esteblish safeguards to prohibit employees from using their positions for a purpose that is or give the appearance of being mo~vated by a desire for private gain for themselves or others, partJcularly those with whom they have family, business, or other ties Nondiscfirn/nat/on. ltwilt complywith ali State and Federa I statutes rela~Jng to nondiscrimination. Taxes. It will comply with ail State and Federal tax laws and is solely responsible for filing ali required State and Federal tax forms. Grant Administration. 1{ will maintain an appropriate grant admires ~'a~on system to ensure that all terms. conditions and spedficafions of the grant, including these standard assurances, am met Examination of Records. it will give the sponsonng agency, thro ugh any authorized representative, accessto and the right to examine ail records, books, paper, or documents related to the grant Public Information. It will ensure that all informa~on coiled, ed, assembled or maintained by the applicant relative to a project will be available to the public during normal business hours in compliance with Texas Government Code, Chapter 552, unless ct herwise expre~y prohibited by law. Chlld Support Payments., ., Itwillcomplywithsecfion231.006, Texas Family Code, which prohibits payments to a person who is in arrears on child support payments. Suspected Child Abuse. It will comply with the Texas FarniIy Code, Section 261.101, which requires reporting ofalI suspected cases of child abuse to local [awenfo rcement authod~es and to the Texas Depadment of Child ProtedJve and Regulatory Services. G(antees shalt also ensure that all program personnol are properly ~'ained and aware of this requirement Relatives. It will comply with Texas Government Cede, Chapter 57, by ensuring that no officer, employee, or member of the applicsnt's governing body or of the applicants contractor s hall vote or confirm the employment ofany person related Within the second degree of a~nity or the third degree ofcens anguinityto any member of the gemming body or any other ofice r or employee authorized to employ or supervise such person, This prohibition shall not prohibit the employment of a person who shall have been continuously employed for a pedod of two years, or such other period stipulated by local law, prio r to the election or appointment of the o~cer, employee, or governing body member re Iated to such person in the prohibited degree. _(~n Nleetlnos. If the applicant is a governmental entity, it Will comply with Texas Cevernment Code, Chapter 551, which requires all regular, spedal or called meelings of governmental bodies to be open to the public, except as otherwise provided by law or spedfica[ly permitted in the Texas constitution. Applicants Orgar~zatlon Project Tiffe Printed Name and '~tle c~Authorized Official Slgnata'e of tile Ault~lz~ Official DEM.221 5 7/03 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET October 7, 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 10.475 acres of Vintage Parkway Right of Way; and providing an effective date. BACKGROUND: There are several legal issues that arise when leasing Oil and Gas mineral interests by a city. 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 DocumentskAIS Vintage Park~vay.doc S:\Our Documents\Gas Well Documents\Ord or Vintage Parkway Lease.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 10.475 ACRES OF VINTAGE PARKWAY RIGHT OF WAY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council desires to authorize the competitive bid process for an oil and gas Non-drill site/Pooling agreement for 10.475 acres of Vintage Parkway Right of Way; and providing an effective date. 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 10.475 acres of Vintage Parkway Right of Way 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 DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET October 7, 2003 Legal Department Dorothy Palumbo, Senior Assistam City Attorney SUBJECT: Consider adoption of an Ordinance allowing the City Manager to execute a Non- drill Site/Pooling Agreement with Trio Consulting & Management Company, L.L.C. for the Hickory Creek Substation in the City of DeNon, Texas; and providing an effective date. BACKGROUND: This Ordinance allows the City Manager to execute a lease for a non-drill site/pooling agreemem for approximately 3.13 acres at the Hickory Creek Substation. Trio Consulting & Managemem, L.L.C. submitted the only bid for these mineral imerests. The City will receive $3,013.00 bonus and a 25% royalty imerest. No drilling will be allowed on the Hickory Creek Substation and this land will be pooled and drilled off a well on adjacem property located off Hickory Creek Road at Teasley, known as the Forester lease. Please see the City Attorney Status 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 momhly 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 Palumbo, Sr. Asst. City Attorney S:\Our Documents\Gas Well Documents\agenda information sheet-Hickory Creek Substation Pooling Agreement. doc S:\Our Documents\Ordinances\03\Hickory Creek Elec Substaton Oil and Gas Lease Ordinance.doc ORDINANCE NO. AN ORDINANCE ALLOWING THE CITY MANAGER TO EXECUTE AN OIL AND GAS NON-DRILL SITE/POOLING AGREEMENT AT THE HICKORY CREEK ELECTRIC SUBSTATION WITH TRIO CONSULTING & MANAGEMENT COMPANY, L.L.C.; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, The City Council of the City of Demon has heretofore determined that it is advisable to lease for oil and gas purposes certain real property located at Hickory Creek Electric Substation, Denton, Texas; and WHEREAS, in compliance with Chapter 71 of the Texas Natural Resources Code (the "Code") the City published notice of its imemion 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 DeNon held a public hearing Chapter 71 of the Texas Natural Resources Code; and WHEREAS, the City desires to authorize the City Manager to execute the lease with Trio Consulting & Managemem Company, L.L.C for a non-drill site/pooling agreemem. NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Incorporation of Preamble. The above and foregoing preamble is incorporated imo the body of this Ordinance as if copied herein in its emirety. SECTION 2. The City Manager or his designee is hereby authorized to execute a Non-drill site/pooling oil and gas lease agreemem between the City of DeNon and Trio Consulting & Managemem Company, L.L.C. in return for the paymem(s) as outlined in Attachmem A for the approximately 3.13 acres at the Hickory Creek Electric Substation. SECTION 3. If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competemjurisdiction, 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. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Gas Well DocumentsXHickory Creek Elec. Substation Pooling Agreement. DOC ATTACHMENT"A" OIL, GAS AND MINERAL LEASE NON-DRILL SITE/POOLING AGREEMENT HICKORY CREEK SUBSTATION, CITY OF DENTON THIS OIL, GAS AND MINERAL LEASE (the "Lease") is made this day of ,2003 (the "Effective Date"), between The City of Denton, Denton, Texas, acting herein by and through its City Manager, Michael A. Conduff, duly authorized by resolution to execute this Lease ("LESSOR"), whose address is: 215 East McKinney, Denton, Texas 76201 and Trio Consulting & Management, L.L.C. ("LESSEE"), whose address is: 703 Bluff Street, Wichita Falls, Texas 76301, WITNESSETH: 1. Lease of Land. LESSOR in consideration of Three Thousand Thirteen Dollars and no/100 ($3,013.00), in hand paid, of the royalties herein provided, and of the agreements of LESSEE herein contained, hereby leases and lets exclusively unto LESSEE for the purpose of a non-drill site/pooling agreement for investigating, exploring, prospecting, drilling and mining for and producing oil, gas and ali associated minerals, to produce, save, take care of, treat, transport and own said products, the following described land in Denton County, Texas, to-wit: 3.13 acres, more or less, of the S.A. Ventures Survey, A-1315, being that same tract described in that certain General Warranty Deed dated July 31, 2000 fi.om Gordon Meredith, individually and as Executor of the Estate of Alvin Meredith, Deceased, to the City of Denton, Texas, recorded in Vol. 4647, pg. 3452, Deed Records of Denton County, Texas. However, there is expressly excepted from this Lease and reserved to LESSOR, its successors and assigns, ail 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 incidental to the production ofoil 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 extent herein leased to LESSEE. LESSOR reserves and excepts fi.om this Lease all of the surface of the land described in paragraph I, 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 except, however, the driveway access use authorized pursuant to that certain unrecorded letter agreement dated June 17, 2003, entered into by and between LESSOR and LESSEE, which uses, subject to the terms of such unrecorded letter agreement, are expressly authorized. 3. Primary Term. This is a paid up lease and subject to the other provisions here contained, 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 quantities 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) Twenty-Five percent (25%) 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 of 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 mn 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.a. above, produced from any well on the land (except as provided in this Lease with respect to gas processed in a plant), Twenty-Five percent (25%) 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, twenty-five percent (25%) 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 fi'om 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 -2- 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 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 ofoil 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, its court costs and reasonable expenses of litigation 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 -3- deposit directly with LESSOR at its address shown herein, a sum equal to Twenty Dollars and no/100 ($20.00) 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 (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 -4- 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 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 acreage 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 trait 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. Terminatiom, 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: (1) With respect to each well located on the leased land or lands pooled with any portion of the leased land which is producing oil or being reworked, and classified as an oil well under the rules and regulations of the Railroad Commission of Texas: forty (40) acres around each such well, or if such well is located within a pooled unit designated pursuant to -5- paragraph 7 of this lease, all of the leased land which is within such pooled unit (an "Oil Unif'); and (2) With respect to each well located on the leased land or lands pooled with any portion of the leased land which is 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: one hundred sixty (160) acres around each such well, or if such well is located within a pooled unit designated pursuant to paragraph 7 of this lease, alt of the leased land which is within such pooled unit (a "Gas Unit"). b. Each Oil Unit or Gas Unit that is not part of a pooled unit designated pursuant to paragraph 7 of this lease 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 (as described in subparagraphs 8.a.(1) and (2) above), that exist as of such time. 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 retained Oil Unit and Gas Unit as to depths below the stratigraphic equivalent of a depth of one hundred feet (100') beneath the stratigraphic equivalent of the deepest producing formation, horizon or zone (whichever is deeper) 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 (10) 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 (10) 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. 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 entitled 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, rentals 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 interest shall be paid to LESSOR only in the proportion which LESSOR'S interest 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 interest. The bonus payment 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 Majeure. When drilling, production or other operations under the terms of this Lease or land pooled with such land, or any part thereof are prevented, delayed or interrupted by fire, storm, flood, war, rebellion, insurrection, sabotage, riot, strike, or as a result of some law, order, rule, regulation or necessity of governmental authority, either State or Federal, the Lease shall nevertheless continue 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 covenants 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. -7- 13. Designation of Drilling Units. a. Upon completion of the first well as a producer of oil and/or gas in paying quantities(whether the first or a subsequent 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 Denton 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 quantities, 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 affecting the leased land in a fair and reasonable manner so that the remaining acreage not included in any previous drilling unit 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, it's departments, it's officers, agents, servants, or employees, created by, or arising out of the acts or -8- 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 TO THE LESSOR 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 carders licensed to do business in Texas and with companies with A: VIII or better rating in accordance with the current Best Key Rating Guide. 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 Section 35-508 of the Denton Development Code, 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. 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 -9- 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. 5. Excess (or Umbrella) Liability Insurance. Minimum limit of $10,000,000 covering in excess of the preceding insurance policies. 6. Control 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 Control 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 quantities that should be brought in by LESSEE or any other LESSEE on adjacent 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 prudent LESSEE would drill under the same or similar circumstances. 16. Location of Drilling ,,Actlvi .ty~ Pipelines and Equip.merit. No drilling activity shall be conducted on and no pipelines, equipment 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. No equipment shall be placed on, and no roads shall be built on city property. 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 Denton, -10- 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~ Go_od 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 produce oil, gas and associated minerals therefrom. 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, sentence, 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 Denton 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 representation or promise, verbal or written, on behalf of either party shall be binding unless contained 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 MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: -11- APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: STATE OF TEXAS § COUNTY OF DENTON § Before me, ., the undersigned notary public, on this day personally appeared MICHAEL A. CONDUFF the CITY MANAGER of the CITY OF DENTON, TEXAS, who is known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that 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 - 12- TRIO CONSULTING & MANAGEMENT, L.L.C. - LESSEE BY: STATE OF TEXAS § COUNTY OF DENTON § Before me, ., the undersigned notary public, on this day personally appeared ., the of Trio Consulting & Management, L.L.C., 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'~Iickory Creek Elee. Substation Poohng Agreement.doc -13- 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 DocumentshNorth 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 Denton, Denton, 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, Denton, Texas 76201 and Joint 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 Cents ($72,365.50), in hand paid, of the royalties herein provided, and of the agreements of LESSEE herein contained, hereby leases and lets exclusively unto LESSEE for the purpose of a non-drill site/pooling agreement 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 ali 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 incidental 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 ali purposes and all minerals except those expressly leased for pooling purposes and only to the extent herein leased to LESSEE. LESSOR reserves and excepts from this Lease all of the surface of the land described in paragraph i, 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 contained, 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 quantities fi.om said land or land with which said land is pooled hereunder. 4. ~ 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 mn 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 hquid hydrocarbons, respectively, of a like type and gravity for the field where produced and when nm, or (ii) the highest market price offered or paid for the field where produced and when mn, 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 nm 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, ali 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 pa/d 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 Rom the land, nor any part of the costs of constmctingo 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 daring 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 stun as royalty shall render LESSEE liable for the amount due and shall operate to terminate this Lease automatically. 6. Limit of Shut-In: Notwithstanding anytlfing 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. ~ 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 ardt 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 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 san~e 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 trait if this lease covers separate tracts within the uni0 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 heremader 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 fight 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 mounts 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 thc 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 ali of the land, save and except the Oil Units and Gas Units provided in subparagraph 8.a. above. Upon expiralion 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 (100') 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 fox 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 term/nation of this Lease. Within ten (10) 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 (10) 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. 9. Removal of Eetuil~ment. Subject to the surface use prohibitions of paragraph 2, LESSEE shall have the fight 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 ali other remedies to which LESSOR is entitled 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, rentals or royalties, however accomplished, shall operate to enlarge the obhgations 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 fi.om any part of the land to which this Lease covers less than such full interest shall be paid to LESSOR only in the proportion which LESSOR'S interest 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 interest. The bonus payment 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 Majeure: When drilling, production or ether operations under the terms of this Lease or land pooled with such land, or any part thereof are prevented, delayed or interrupted by fire, storm, flood, war, rebellion, insurrection, sabotage, hot, strike, or as 'a result of some law, order, rule, regulation or necessity of governmental authority, either State or Federal, the Lease shall nevertheless continue 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 covenants 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 mount 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 quantities (whether the first or a subsequent well drilled), LESSEE shall designate an approximately sized drilling unit around said f'~xst 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. b.. If a second well is completed as a producer of gas in paying quantities, 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 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 shalI 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, fmcs, 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, ar/sing 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 fi.om 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 INDEMI'rITY 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. Ail 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 hcensed 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. 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 h-dtants, 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 Employerrs 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. Control 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 Control with a subdimit of $500,000 may be added. 15. Offset Well Requirement. In the event a well or wells producing oil and gas in any quantities that should be brought in by LESSEE or any other LESSEE on adjacent 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 prudent LESSEE would drill under the same or similar circumstances. 16. Location of Drilling Activitv~ Pipelines and Etluil}ment: No drilling activity shall be conducted on and no pipelines, equipment 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 pipehnes 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 Denton, as amended, and all other applicable laws; provided, however, in no event 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 ali 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 Denton. 18. Lease Assignment: The assignment of this Lease by LESSEE, or any successor LESSEE, shall not relieve LESSEE, or any such successor, from /ts 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. Diliaent, 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, amid, alter, or affect the true meaning of any paragraph, sentence, 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 Denton 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 representation or promise, verbal or written, on behalf of either party shall be binding unless contained herein; and this Lease shall be binding upon each party executing the same, regardless of whether or not executed by ali 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 personaIly 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 Documentsh'qorth Lakes Pooling Agreement, doc Potential Ddl~ing Sites A The eXact legal Secretary's Offic scription City AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 Planning and Developmem Departmem Jon Fortune, Assistam City Manager SUBJECT Z03-0020 (Robson Ranch) Hold a public hearing and consider 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 is generally located along the south side of H. Lively Road approximately 2.6 miles west of Imerstate 35 West. Five (5) gas well sites are proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicam: Devon Energy Operating Company Decatur, Texas The applicant's request has a two-fold purpose: request a Concept Plan amendment to change the location of gas well sites per the approved Concept Plan (Ordinance 2001-247), and to request approval of a Detailed Plan for 5 gas parks. The proposed 5 gas parks are in compliance with the 5 acre minimum area for gas parks as established in the approved Concept Plan. The proposed drilling sites would consist of 2 acre gravel pads, wellheads, tank batteries and the typical gas well production equipment and conforms to the approved Concept Plan. The approved Concept Plan allows between 15 and 20 well sites within the 2,275 acre Planned Development 173 and includes, among other stipulations, schematics for a typical gas park, a map showing potemial locations of gas parks, and the permitted uses. (Attachment 5) The proposed Concept 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 no responses from property owners 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). ESTIMATED PROJECT SCHEDULE A gas well plat has been submitted for the subject site. The Amending Concept Plan/Detailed Plan and gas well plat must be approved prior to the issuance of a drilling permit by the Fire Department. PRIOR ACTION/REVIEW The following is a chronology of Planned Development 173, commonly known as Robson Ranch: Application Acreage Approval Date Ordinance Concept Plan 2,725 August 3, 1999 99-265 Detailed Plan for Water 2.8 September 7, 1999 99-319 Reclamation Plant Detailed Plan for Residential 1,361.3 February 15, 2000 2000-059 and Golf Course uses Amended Detail Plan for N/A October 19, 2000 Staff Level of Robson Blvd. (Minor Approval Amendment) Detailed Plan for 1.4 June 5, 2001 2001-215 Maintenance Yard Amended Concept Plan to 2,275 July 17, 2001 2001-247 allow gas well operations and to amend landscaping requirements Amended Detail Plan for N/A November 20, 2001 Staff Level of sidewalk setbacks. (Minor Approval Amendment) Amended Detail Plan for N/A April 16, 2002 Staff Level of reduction in lot yield. (Minor Approval Amendment) ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification 4. Photos 5. Approved Concept Plan (Ord. 2001-247) 6. Proposed Amending Concept Plan/Detailed Plan 7. August 27, 2003 Planning and Zoning Commission Minutes 8. Draft Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Request An Amending Concept Plan encompassing approximately 2,275 acres for Planned Development 173 (PD-173) to allow gas well operation was approved in 2001. The applicam is requesting the approval of a second amendment to the Concept Plan and a Detailed Plan for approximately 673.4 acres to allow for five (5) 5-acre gas parks with drilling sites, wellheads, tank batteries, and the typical gas well production equipmem (see attachmem 6). The proposed locations of the gas parks differ with the approved Concept Plan (see Attachmem 5) Existing Condition of Property Property History. February 20, 2002 - The subject property retained the Planned Development 173 (PD-173) zoning status and land use classification by Ordinance 2002-040. The subject property in question is vacam and also comains portions of floodplain. The applicam will not be allowed to develop in the floodplain. There are numerous gas well sites within a 1-mile radius of the subject site. agricultural, and cattle activities seem to coexist with gas well developments. Adjacent zoning: North: South: East: West: Residemial, Rural Residemial 5 (RD-5) zoning district and Extra-territorial Jurisdiction (ETJ) (single-family residences and vacam land) Planned Developmem 173 (PD- 173) zoning district (single-family residences and vacam land) Agricultural zoning (A) zoning district (vacam land) Extra-territorial Jurisdiction (ET J) (vacam land) Comprehensive Plan Analysis Proposed gas parks are located within the "Neighborhood Centers" future land use area. These areas may develop in convemional patterns or may be developed in a pattern of 'neighborhood cemers'. Neighborhood cemers are oriemed inwardly, focusing on the cemer of the neighborhood and comaining facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elememary school. Planned Developmem 173 has been designed to allow the co-existence of residemial, non- residemial, outdoor recreation, and gas well operations. Gas well operations are prohibited with 100 feet of residemial facilities and 300 feet from public assembly areas per the approved Concept Plan. The proposed Concept Plan/Detailed Plan as submitted is compatible with The DeNon Plan and surrounding land uses. Development Review Analysis Transportation The proposed gas well developmem will be required to take access from H. Lively Road via Ponder Road (FM 2449). No right-of-way dedication is required for gas developmems. Development Review An approved Detailed Plan is required prior to the approval of any gas well development in this location. The proposed new location of 2 gas parks does not significantly alter the development pattern of Planned Development 173. Any changes in the layout of residential units caused by the location of the proposed 5 gas parks will require an amendment to the Detailed Plan approved in 2000. The remaining gas parks shown in the 2001 approved Concept Plan will require the approval of a detailed plan prior to development. Staff Findings 1. The proposed amendment to the Concept Plan could be considered minor in nature. 2. Gas parks are permitted uses within Planned Development 173 per Ordinance 2001-247. Staff Recommendation Based on above findings staff recommends approval of the requested amendment to the Concept Plan/Detail Plan for Planned Development 173. ATTACHMENT 2 Location/Zoning Map NORTH Future Land Use Map ~J ATTACHMENT 3 Public Notification NORTH Scale: None NOTIFICATION MAP Newspaper Notification Date: August 16, 2003 200' Legal Notices* sent via Certified Mail: · In Opposition: 0 · In Favor: 0 · Neutral: 0 Percent of land within 200' in opposition: 0% 2 *Property in the ETJ is not notified ATTACHMENT 4 Photos ATTACHMENT 5 APPROVED AMENDED CONCEPT PLAN (Ord. 2001-247) Gas Parks to be relocated Limits of Proposed g Concept Plan ATTACHMENT 6 PROPOSED AMENDING CONCEPT PLAN/DETAILED PLAN r& 10 ATTACHMENT 8 ORDINANCE NO. 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 M_AXIIVIqJM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0020) WHEREAS, on August 3, 1999, by Ordinance 99-265 the City Council approved a change in zoning for 2,725 acres of land to Planned Development 173 (PD-173) zoning district, as more particularly described therein; and WHEREAS, on July 17, 2001, by Ordinance 2001-247 the City Council approved an amendment to the Concept Plan of Planned Development 173 (PD-173) zoning district, as more particularly described therein, and WHEREAS, Devon Energy Operating Company, has applied for an amendment to the concept plan/detail plan for Planned Development 173 (PD- 173) and the approval for a detailed plan containing 673.4 acres of land; and WHEREAS, on August 27, 2003, the Planning and Zoning Commission concluded a public hearing as required by law, and recommend approval of the requested amendment to the concept plan and the approval of a detailed plan; and WHEREAS, the City Council finds that the amendment to the concept plan/detail plan is consistent with the Comprehensive Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinances No. 99-265, and No. 2001-247, providing approval for the rezoning of 2,725 acres to Planned development 173 (PD- 173) and the original concept plan, and the amended concept plan for 2,275 acres for said district, are amended by the approval of a new Concept Plan/Detail Plan attached hereto as Exhibit "B" and incorporated herein by reference, and more particularly described in Exhibit "A", which is attached hereto and incorporated herein by reference. SECTION 2. The provisions of this ordinance as they apply to the amendments herein approved, shall govern and control over any conflicting provisions of Ordinances No. 99-265, and No. 2001-247, but all the provisions of Ordinances No. 99-265, and No. 2001-247 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 3. A copy of this ordinance shall be attached to Ordinances No. 99-265, and No. 2001-247 showing the amendment herein approved. SECTION 4. If any provision of this ordinance or the apphcation 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 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. 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, 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, CITY ATTORNEY BY: ~--~0 Page 2 of 2 EXHIBIT A b ILTMORE Being a 673.36 acre tract of land which is a' portion of that certain 2426.81 acres described in a Special Warranty Deed, dated June 29, 1999 from Highland Presbyterian Church to Robson Denton Development, L.P. recorded in Volume 4.573, Page 225, Real Property Records, Denton County, Texas, and that certain 520.;55 acres described in a Special Warranty Deed, dated July 1, 1999, from Amy Cole Griffin, Jack Donald Cole and Susan Banner Mead, Trustees of the M.T. Cole Trust No. 2, to Robson Denton Development, L.P., recorded in Volume 4373, Page 284, Real Property Records, Denton County, Texas being more particularly described as follows: Beginning at the northeast corner of the above referenced 320.55 acre tract being on the north line of the F. Oliver Survey, A-989; Thence West along said survey line South 89 degrees 54 minutes West 2057.91 feet to the northwest corner of the 320.35 acre tract; THENCE South 89 degrees 47 minutes West 5650.25 feet to a point in the north line of the J. McGowan Survey A-798 and the south line of the C. Manchaca Survey, A-789; THENCE South O0 degrees 21 minutes East 3454.29 feet along a west line of said 2426.81 acres to a point; THENCE continuing along said west line South O0 degrees 20 minutes East 1708.41 feet to a point; THENCE East 5677 feet to (] point in the east line of the said 320.55 acre tract; THENCE North along said east line 5160 feet to the Point of Beginning. This description was copied from a Memorandum of a Oil and Gas Lease recorded in Volume 5011, Page 2760 Officol Public Records, Denton County, Texas ATTACHMENT 7 CondcnseItTM 4 5 6 7 8 9 10 13 14 t5 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 i1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 33 COMMISSIONER MULROY: okay, We're moving to Item I0, hold a public hearing and consider making a recmmnendation to City Council concerning approval of an amending concept plan detailed phn for planned development 173 for approximately 673~4 acres. Okay. I will open the public hearing and ask for staWs presentation, please. MS. VmR,~: oood evening, Commission. Devon Enca-gy is requesting an amendment to the concept plan for 673 acres from the approved concept plan that encompasses Z275 acres. The applicant is also requesting the approval of a detailed plan for five gas parks included within the 673 acres. This site as you can see ou your screen there, it is tile northern U'act of planned development 173 commonly known as Robson Ranch and is located along the south side of Lively Road, The proposed two new locations for the gas parks will provkte -- will iacn~se fi~e distance between the existing single family lots along Lively Road and the proposed two gas well sites. On tile approved concept plan as you can see on your sc~x:ens, I have highlighted those two properties, and to the righl, it is the proposed amended concept plan. As you can see, the applicant has removed them from the edge of the district along Lively Road to the inner part Page 34 of the tract. The applicant is also proposing a detailed plan as I mentioned before for five gas parks. The gas parks are approximately five acres. The parks will consist of two acre gravel pads, wellheads and all of the typical equipment related to the gas production. The applicant is also proposh~g a fence -- pemmnent fiberglass fence -- I believe it's eight foot tall -~ around the smMce area, so flint way ail of the ~uipment will be compIemly screenexl. They're also proposing to provide evergreen slu'ubs around the fence to screen it from view. And they're atso proposing to plant 75 ~rees within each park area that is five acres. The staff would like to make a clarification at this point that with the proposed landscaping and fencing we are not recmmnending any additional screening at this point. Staff finds that the proposed amended concept plan, detailed plan is in compliance with the approved concept plan with the Denton Plan and reco~mnends approval as proposed by the applicant. If there is any questions, staff is available to answer. COMMISSIONER MULROY: Ally questions? Mr. Roy, please. COMMISSIONER ROY: would yOU clarify for us 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 about the notification? 1 understand that the homes just to the north of the site were not notified even though they're very close to the site. But they!re not notified bemuse they're in the ETJ. IS that Our Practice? MS, VIEI~LA: That is comet. We ~e required to notify the proPerties within the city limits of Denton. However, we also provide a sign on site with contacting information for any neighbors who are interested about the case to provide input. Actually ! met with one of the neighbors in the ETJ. He came and asked staff about what was proposed, We also advertis~ in the newspaper for the benefit of the general public. But I will let the legal counselor to take over on this. MS. PALUMBO: State law requires that we only notify taxpayers on zoning c~ses and the sign is in addition to state law. But there's also a state !aw that says that we post the newspaper noti~. So an~hing in addition -- any courteous notice that we give is not required by state law or the Denton Development Code. COMMISSIONER MULROY: Mr. Reichhart would like to point out -- MR, REICHHART: I jUSt wanted to point out if this wasn't a planned development given the location that it is, any of the well sites that we're looking at Page 36 1 there is greater than 1,100 feet from the property !ine 2 and they would be able to -- per our gas well ordinan~ 3 would be able to do tiffs by right. And there wouldn't 4 have been any public hearing or any notification because 5 they're greater than the 500 feet from the adjacent 6 msidenc 7 COMMISSIONER MULROY: Thank you, Larry. 8 Mr. Powell. 9 COMMISSIONER POWELL: Thank you, Mr, 10 Chairman. I did read in the staff analysis that the 11 applicant is not proposing any screening around -- 12 surrounding the well service area. And Ms. Viera just 13 said that they are, correct, as well as you mentioned 14 trees that I didn't hear about earlier and is that 15 correct? 16 MS~ VIERA: That's correct, 17 COMMISSIONER POWELL: IS the fencing and 18 the wells -- excuse me, the fencing and the trees, 19 whatever, shown on this proposed concept plan? 20 MS. VIERA: It is noted on notes 7 and 8 on 21 the plan. 22 COMMISSIONER POWELL: YOLVve answered my 23 question. Thank you. 24 MS~ VIERA: YOU're welcome. 25 COMMISSIONER MULROY: Thank you, PLA~G & ZONING COM~4HSSION AUGUST 2'7, 2003 Page 33 - Page 36 Page 37 1 Mr. Powe!l. Does the applicant wish to make any comments 2 or p~ent or be available for questions? 3 MR. aORTON: c0~mnission, my nalne is Gilbert 4 Herren. I represent Devon Energy. Address 408 parkwest 5 Court, Decatur, Texas 76234. 6 As this is --this is somewhat of an 7 unusual a~ent we have with the lessor in that in this 8 oil gas and mineral lease we are obligat~ by the lessor 9 to tile surface owner to have basically every~ing 10 pre-approved. But in this case, the surface owner is 11 Robson Ranch. We have -- file plan that you have before 12 you now was basically pt, e-approved and to a large part 13 dictated by Robson and approved by Robson to be sm that 14 it complied with -- it did not disrupt their developmeat 15 in any way. That is why at this time we've chaoged ~o of 16 the gas parks. 17 Tlmt was a joint effort between our geology 18 and with the Robson Ranch and their developers to be sure 19 that we were on board and they were on board with 20 approving everything. So basically ever3ahing that you're 21 looking at has a~dy been approved by fl~e surface 22 developer which is Robson Ranch. 23 And I also have with me if you have any 24 questions, I help~ put together this, but as far as the 25 plat and overseeing t~ initial platting before we submit Page 38 1 it to City staff, but I also have with me to answer any 2 ~chnical regulations you may have, or technical 3 questions, I have with me Jay Ewing, completion 4 supervisor. Ile'll be able to answer any parts about the 5 drilling or the completion process. 6 I also have wi~ me James Dickson who is a 7 landowner relations witb Devon, a superint~mdent, lie 8 would be able to answer any questions related to that. 9 And we also have a representative from Robson Ranch here 10 as well. So any questions? i 1 COMMISSIONER MULROY: okay. Any questions, 12 Co~muissioners? Okay. Thank you, sir. All right. We 13 have no cards on this item for anyone to speak, so I'm 14 going to close the public hearing and open the matter for 15 discussion. Mr~ Johnson. 16 COMMISSIONER JOHNSON: I'm ready to make a 17 motion unless there is some discussion. 18 COMMISSIONER MULROY: There's no names on 9 the que so we're ready for a motion. 0 COMMISSIONER JOHNSON: I'd move for 21 22 23 24 25 approval. 27,200,3 a mcond. COMMISSIONER WATK!NS: second. COMMISSIONER MULROY: we have a motion and Please, vote. Item carries 7-0. 1 2 3 4 5 6 7 8 9 I0 i1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PLANNING & ZO~G COM~SSION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 AUGUST Page 39 Page 40 Page 37 - Page 40 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 Planning and Developmem Departmem Jon Fortune, Assistam City Manager SUBJECT Z03-0013 (Denton Area Teachers Credit Union) Hold a public hearing and consider adoption of an ordinance concerning a Specific Use Permit for a drive-thru facility. The approximately 8.3 acre property is in a Neighborhood Residemial Mixed Use (NRMU) zoning district and is generally located approximately one block south of Teasley Lane, west of FM 2181. A drive-thru bank is being proposed. The Planning and Zoning Commission recommends approval (6-1). BACKGROUND Applicam: Dale Kimble DeNon, TX The applicam has submitted a request for a Specific Use Permit (SUP) allowing for a drive-thru facility. While a bank or professional offices are permitted within a Neighborhood Residemial Mixed Use (NRMU) zoning district, a specific use permit (SUP) is required for all drive-thru uses. Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has received no responses in favor or in opposition from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of the Specific Use Permit as proposed by the applicant (6-1) (Holt Opposed). ESTIMATED PROJECT SCHEDULE The property will be required to be platted prior to issuance of any permits. PRIOR ACTION/REVIEW The following is a chronology of Z03-0013, commonly known as DeNon Area Teachers Credit Union: Prior to the adoption of the Developmem Code, the property was zoned Neighborhood Service Conditioned (NS(c)). This property was part of PD-16 umil May 16, 2000 at which time the City Council voted to rezone the property from PD-16 to a Neighborhood Services Conditioned (NS(c)) zoning district. PD-16 originally allowed for 9.2 acres of general retail and approximately 50 acres for single-family developmem. A Neighborhood Wal-Mart store was proposed and extreme opposition was shown. The NS zoning placed limits on the size and type of business that could locate on the site. Generally retail less that 4,000 square feet was permitted. Ordinance 2002-040, adopted February 20, 2002 placed the subject property in the Neighborhood Residemial Mixed Use zoning district and land use classification. City Council approved a Specific Use Permit for a CVS Pharmacy drive-through, located adjacem to the proposed drive-through bank, on April 15, 2003. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map and Property Owner Responses) 4. Site Plan 5. Planning and Zoning Commission Meeting Minutes from August 27, 2003 meeting. 6. Draft Ordinance Prepared by: Wes Morrison Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Zoning Request The subject property is zoned Neighborhood Residential Mixed Use (NRMU). The applicant must obtain the approval of a Specific Use Permit (SUP) to allow for a drive-thru facility. Existing Condition of Property The subject property is currently vacant. Adjacent Zoning & Land Uses: North: Neighborhood Residemial 2 (NR-2) zoning district - single family homes South: Neighborhood Residemial Mixed Use (NRMU) zoning district - vacam land (remaining portion of property) East: Neighborhood Residemial Mixed Use (NRMU) - small office parks West: Neighborhood Residemial 3 (NR-3) zoning district- elememary school. Comprehensive Plan Analysis The subject site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. New development in this district should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service, and commercial land uses is allowed. Curremly the areas surrounding the site are predominately single-family residemial and small office park development. The proposed specific use permit would not be detrimental to the existing or future development of this area. Development Review Analysis Transportation Trip Generation. Significam vehicle trips will be generated. A Traffic Impact Analysis will be required in the final platting process. Access and Connectivity Access to the property will be made from Teasley Lane. Teasley Lane is idemified in the DeNon Mobility Plan as a Primary major arterial. Teasley Lane, also known as Farm-to- Market Road 2181, is maintained by TXDOT. Developmem Code / Zoning Analysis The applicam has proposed the construction of a drive-thru bank. The Neighborhood Residemial Mixed Use zoning district allows the bank use; however, the drive-thru use is only allowed with the approval of a Specific Use Permit. Section 35.6.5 of the Denton Development Code states that a Specific Use Permit shall be issued only if all of the following conditions have been found: That the specific use will be compatible with and not injurious to the use and enjoyment of the other property nor significantly diminish or impair property values within the immediate vicinity; The operation of the drive-thru should not diminish or impair property values in the immediate vicinity, as the proposed location of the bank is located in a commercial area. 2. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; It is unlikely that establishmem of this specific use will impede the normal and orderly developmem of surrounding property. 3. The adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; All necessary supporting facilities will be provided. 4. The design, location and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; All proposed parking areas and driveways meet the requiremems of the City of DeNon. 5. That adequate nuisance preventions measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; Adequate nuisance prevention measures will be taken. No odors, dust, noise, or vibration will occur after initial construction. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and Proposed lighting will not affect neighboring properties and must meet the requirements of the Denton Development Code. 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. All landscaping and screening requiremems according to the DeNon Developmem Code will be met. However, Section 35.6.6 allows the approval authority to recommend additional conditions on the proposal to protect the public and the welfare of the community. Specific standards are also required of all drive-thru uses according to Subchapter 35.13.11 of the Denton Development Code: A. Drive-thru uses shall provide sufficient stacking area to ensure that public right of ways are not obstructed. B. Drive-thru uses must be built as an integral architectural element of the primary structure and use. The materials are the same as those used in the primary structure. C. Drive-thru uses must be located to the rear or side of the structure, and buffered on the rear and side lot lines. The proposed site plan meets the standards for a drive-thru. Staff Findings The proposed use is compatible with the imem of The Demon Plan and the Demon Developmem Code. The applicam has met all requiremems for a Specific Use Permit. Staff Recommendation Based on the above findings, staff recommends approval of the specific use permit without conditions. ATTACHMENT 2 LOCATION & ZONING MAP NORTH LAND USE & ESA MAP Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map CVS Scale: None Public Notification Date August 15, 2003 200' Legal Notices* sent via Certified Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 Percent of land within 200' in opposition: 0% 21 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Exhibit B ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A DRIVE-THRU FAC]I,ITY ON APPROXIMATELY 8.3 ACRES OF LAND GENERALLY LOCATED APPROXIMATELY ONE BLOCK SOUTH OF TEASLEY LANE AND TO THE WEST OF FM 2181, W1THIN A NEIGHBORHOOD RESIDENTIAL MIXED USE ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE ~ AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z03-0013) WHEREAS, Denton Area Teachers Credit Union has applied for a specific use permit for a drive-thru facility within a Neighborhood Residential Mixed Use zoning district classification and use designation on approximately 8.3 acres of land generally located approximately one block south of Teasley Lane and to the west ofFM 2181, as more particularly described in Exhibit "A' attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on August 27, 2003, the Planning and Zoning Commission recommended approval of a Specific Use Permit for a drive-thru facility; and WHEREAS, the City Council finds that the Specific Use Permit is consistent with The Denton Plan; and WHEREAS, in accordance with Subchapter 6 of the Development Code of the City of Denton, Texas, the City Council finds that all of the following conditions exist: The specific use will be compatible with and not injurious to the use and enjoyment of other property nor significantly diminish or impair property values within the immediate vicinity; and The establishment of the specific use will not impede the normal and orderly development and improvement of surrounding property; and Adequate utilities, access roads, drainage, and other necessary supporting facilities have been or will be provided; and The design, location, and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; and Adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; and Directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and There is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property; Adequate capacity of infrastructure can and will be provided to and through the subject property; and The specific use is compatible with and will not have an adverse impact on the surrounding area; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. A specific use permit is hereby approved within a Neighborhood Residential Mixed Use zoning district classification and use designation on the Property to allow a drive-thru facility for a lending institution in accordance with the site plan attached hereto and made a part hereof by reference as Exhibit "B". SECTION 3. Notwithstanding the description of the Property, the property being rezoned includes all property to the centerline of all adjacent street rights-of-way. SECTION 4. The City's official zoning map is amended to show the change in zoning district classification. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2003. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: PAGE 2 APPROVED AS TO LEGAL FORM: HERB~./~TY ATTORNEY BY. PAGE 3 E×hlbi~ GF NumDer:1220008i}9 BEING all that certain lot, tract or parcel of land situated in the C. POULLALIER SURVEY, ABSTRACT NUMBER 1006 in the City of Denton, Denton County, Texas, being a part of that certain tract of land conveyed by dc~d from Alexander Management L, L. C. and E. E, Alexander F&rmly Limited Purtnership to Teaslcy Commons, Ltd., recorded in Vo1Ltmc 5320, Page 2275, Real Property Records, Denton County, Tex~,s and being more particularly described as follows: BEGINNING at an iron rod set for corner in the Wast line of Tcagley Lane, a public roadway having u right-of-way of 100.0 feet, the Southeast corner o1 Lot 1. Block A of Tcasley Commons, an addition to the City of Denton, DentOn County, Texas, according tO the plat dmr¢of recorded in Cabinet V, Page 1516, Plat Records, Denton County. Texas, bears Not-th 89° 47' 28" West, [7,50 feet; TI'I~NCE South 0lO 02' 19" East. 125.28 feet ~ith said West line of said Teastey Lane to an iron rod set for corner; THENCE South 88° 44' 3 I" West, 294.64 feet to an iron rod set for comer; TFI3J, NCE North 24° 16' 21" West, [31.36 feet to an iron rod set for corner; THENCE North 88° 45' 25" East, 72.22 fc~t to an iron rod sat for corner; TFiENCE North, 11.41 feet t0 an iron rod set for corner, said point being the Southwest comer of said Lot I., Block A of said Teasely Commons; TI-~NCE South 89~' 4'7' 28" Eas~, 274.10 feet with thc South line of said Lot l, Block A et' said Tpasley Commons to the PLACE OF BEGINNING and comaintng 0.939 acre of land, NOTE: The Company is prohibited from insuring the ama or quamky of tho land described on Schedule A hereof. Any statement in such legal description of the area or quanbty Of land is not a representation that such ama or quantity ~s correct, but is made only lot information and/or identification purposes and does not override Item 2 al' Schedule B hereof. gehcdale A of O.J.s Commitment consists of 2 i~agc(s) Stcw,'u'[ Title Guaranty Company CondenseltTM Page 41 I COMMISSIONER MULROY: Otlr final item on the 2 Agenda, No. 11, to hold a public heating to consider 3 making a reconm~endation to City Council regarding a 4 specific use permit for a drive-through faci~ity, 5 approximately §3 acre property is in the Neighborhood 6 Residential Mixed Use and is generally located 7 approximately one block south of Teasley Lane and west of 8 2181. Okay. I will open *l~e public hearing and have 9 staff makes its presentation. 10 MR. Morm~so~: Thank you. The applicant is 11 proposing to -- I'm son'y, is requesting a specific use 12 pernfit for a drive-tl~ough facility located approximately 13 one block soutl~ of Teaslcy Lane west of VM 2tst co~mnonly 14 known as Teasley Lane. 15 The site is located within a neighborhood 16 residential mixed use zoning district which allows the 17 proposed bank use out right. It just requires a specific 18 use permit for the thSve-through facility for the bank. 19 At *iris time staff tins received no letters in opposition 20 or in favor of tiffs requesl. 21 This ~uest complies with *lac ~n~on 22 Development Code and is compatible wi*la the Denton Plan, 23 fl~erefore~ staff recon-nnends approval. 24 COMM!SSIONER MULROY: okay. Thank you. 25 Any questions of staff? Is the applicant l~re and does he 5 6 7 8 9 10 11 1:2 13 14 16 17 18 19 20 21 22 23 24 25 Page 43 COMMISSIONER HOLT: It seems like this site, there's been an awful, lot of discussion of driveways. The cvs had a drive-through, ~is has a drive-through. There was something that -- I mean, there was some more questions about -- this site isn't that big. It s~ms like we're just going to be driving through this whole thing. Is this -- with Teasley as busy as it is, we've .already got the cvs ~ve-through, we've got some more stuff coming in there. Are drive-throughs conducive to traffic? I mean, sometimes you just want to say no. I just don't s~ -- think we need a drive-through here. MR, REICHItART: I don't know if a drive-through use is any more or less conducive to traffic, it really ts a function of the site design and making sure you have your on-site stacking because you could ihave a retail development that would even generate more quick trips in and out through the course of the day than a drive-through through a big parking lot or something. And in some cases a drive4.hrough if designed properly is really funneling traffic where you want it to be and in a sense could be a little bit more safer for the traffic flow outside of that site. So really, you know, the function of a drive-through, and if you look at typical retail Page 42 I wish to speak or does he just want to answer questions? 2 Are there any questions? Okay. Thank you~ All right. 3 We have no cards from anyone in the audience wishing to 4 speak. So I'm going to close the public hearing and open 5 the table up for either discussion or a motion. 6 COMMISSIONER POWELL: Question of 7 Mr. Reichhart, if I may, or staff. I'm assuming that this 8 drive-tln:ough facility requirement was primarily designed 9 for food places, wam't it, as opposed to bank operations? 10 MR. REICHHART: YOU think of drive-through 11 tbod -- fast food services more, but it really wasWt. 12 The intent in neighborhood centers is that as you have a 13 drive-through, it becomes more auto dominated and the 14 neighborhood centers zoning district is supposed to be 15 more of a pedestrian-oriented district. 16 So regardless of the type of drive-through, 17 we just wanted to make -- take a look at it to make sure [ 18 it was compatible and it worked with the pedestrian area 19 providing adequate sidewalk stacking, queuing and was-- 20 safe turn movements. So that was the idea of looking at a 21 drive-through as a specific use permit in this 7xming 22 districL 23 COMMISSIONER POWELL: Thank you. 24 COMMISSIONER MULROY: Any further 25 questions? Ms. Holt, please. Page 44 I development, you know, thc majority of the out parcels am 2 more quick in and out type of services and the fast food 3 restaurants and things like that. It might be a little 4 different question if you had a fast food restaurant where 5 you have a lot of trips all day long. But a cvs ~'hannacy, 6 the flow is fairly low and steady. The same with a bank. 7 I mean, you might have a peak on a Friday aftemoon or 8 something like that, but, typically, it's a fairly 9 moderate flow of traffic where if you had a retail 10 development out there that could really generate a lot of 11 in and out trips. 12 COMMISSIONER HOLT: SO it would be 13 something that would help the traffic flow than -- 14 MR, REICHHART: I don't know if it helps 15 the traffic flow throughout the whole siW, but the lCact 16 that they have their omsite stacking and they've designed 17 to get people in to their site, and then safety out back t8 into the flow of traffic helps the overall site traffic 19 flow as opposed to having one big large parking lot wl~ere 20 people can cut through the stalls and things like that. 21 COMMISSIONER HOLT: Has this been looked at 22 in relationship to what else is going on on that site or 23 is this being looked as just like the cvs was, a little 24 part? 25 MR~ REiCHHART: The other site information PLA~ING & ZO~G COlVIMISSION AUGUST 27, 2003 Page 41 - Page 44 CondenscltTM 1 2 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 that's coming in -- it's not fully developed yet. They're still working on the site. We have seen some conceptual site plans for the entire site The idea basically - both the cvs and this site are using one driveway, although the cvs site did have another driveway off of Teasley which will be incorporated into the entire site. And when that comes forward, we'll continue to work with, you know, massaging, maybe the other site. But there's a lot of possibilities right now of how the final design will cud up looking. I mean, they have preliminary de~igns that we've looked at, but nothing final yet. COMMISSIONER HOLT: okay. Thank you. COMMISSIONER MULRO¥: Mr, Johnson~ COMMISSIONER JOHNSON: We -- earlier tonight we continued aa Item 5, which is this same site~ which related to additional curb cuts and whatnot? MR, RE[CHHART: Yes. sir. COMMISSIONER JOHNSON: IS this SUP that we're considering now, does it - will the design that they're looking at require the additional curb cut -- any additional curb cms or will this -- will this facility utilize the ones that have been approved already? Ma. REICHHART: It'S utilizing right now the ones that have been approved already, cvs. Page 46 COMMISSIONER JOHNSON: SO the Item 5 is totally independent of this item, right? MR. REICHHART: Yes, sir. COMMISSIONER MULRO¥: Mr. Powell. COMMISSIONER POWELL: Mr. Chairman, in the interest of discussion, I recognize that the zoning here 5 6 7 8 9 10 II 12 13 14 15 16 I7 18 19 20 21 22 23 24 25 Page 47 of another trip on the way home and the chug stores from the doctor, you're going home. And I don't see where we're putting a drive-through use that's going to be a center of -- attract new traffic from out of the neighborhood. Now. as far as differentiating between mobile and bicycle, with you, This is just at a center of a lot of automobile traffic and whether you have the drive-fl~'ough window or not, the same amount of vehicles are going to stop them to do their business. So it was a tough -- you know, it's just tough to give it a zoning designation. Okay. Any further conunents7 We will be ready for a motion then. COMMISSIONER POWELL: MOVe lO approve~ COMMISSIONER STRANGE; second, COMMISSIONER MULROY: We have a motion by Ma.. Powell and a second by Mr. Strange for approval. Any discussion? Please, vote~ Ms. Holt~ I don't think yours registered. Okay. It did. Okay. Thank you very much. The motion passes 6-1. {COMMISSIONER HOLT VOTINO IN OPPOSITION,) COMMISSIONER MULROY: IS there any -- there's no further items on the Agenda. Any connnents for future meetings? Mr. Roy. COMMISSIONER ROY: Yes, We have a couple Page 48 of new members on the Commitlee since we bad our last workshop to go over om' procedures and focus on our practices amongst ourselves and in a Committee. And, for one, I[ found -- I noticed a significant m~provement in our practice once we all got on the same page about how we were going to conduct the meetings. And I think we ought ts supposed to be pedestrian-oriented. But realistically when I look at where this is at the comer of Teasley and Teasley and Lillian Miller and Wind River, you're going to take your life in your hands trying to cross the street there at any time of the day or night. So I don't see this realistically in practice as being a pedestrian-oriented site even though I know it was meant to be that. My feeling is that no matter we do or don't 7 to do that again in a work session. 8 So I'd like to suggest that for a Work 9 Session. And included in that -- I'd like to include the 10 subject of interactions with staff. You know, am there 11 needed improvements? What our expectations and our 12 relationship with staff and things that we need to do 13 different or things that we'd like for them to do 14 different. So I'd like to include that as part of that 15 review at a future workshop session. do it's always going to be automotive-related, COMMISSIONER MULROY: well, if I may piggyback on your comment. It's a difficult site to give the NRMU. And, you know, at the time there's probably pluses and negatives on any designation they would give. But in viewing of what we're looking at, the drive-throughs, you know, so far we're looking at operations that tend not to be just an crud in themselves but they're people on their way home or on their way to work, that's when they generally go to the bank as a pa~ 16 17 18 i9 20 21 22 23 24 25 COMMISSIONER MULROY: Good COllmlents, Thank you, Mr. Roy. Any f'urther cmmnents? Mr. Johnson, COMMISSIONER JOHNSON: we talked quite a bit about the Compreheusive Plan and one specific a~ tonight, and I'm curious if there are other a~ within the city -- I'm aware of one off,er over north of University and just east of Interstate 35 that thorny s been some co~mnunity iuterest in. And Pm wondering if there am other areas within the City that staff is aware of that we should also expand this discussion of the PLANNING & ZONING CO~SSION AUGUST 27, 2003 Page 45 - Page 48 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET October 7, 2003 Legal Department Dorothy Palumbo, Senior Assistant City Attorney SUBJECT: Hold a public hearing and consider 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. BACKGROUND: This bid is for a non-drill site/pooling agreement for approximately 96 acres at the Airport Open Space. Lynx Oil Company, Inc. submitted the best bid for these mineral interests. The City will receive $9,600.00 bonus and a 18.75% royalty interest. (See Attachment A of the attached Ordinance). No drilling will be allowed on the Airport Open Space and this land will be pooled and drilled from an off airport well on adjacent property. On September 10, 2003, this bid was presented to the Airport Advisory Board, who voted unanimously to recommend approval of the lease. This lease will contain provisions requiring compliance with FAA regulations and with the Airport Overlay Zone regulations. RECOMMENDATION: We recommend that this bid be negotiated with the best bidder, Lynx Oil Co., inc. and that the City Manager execute the mineral lease as long as the lease is in substantially the same form as the City's Standard Lease with no alteration of the material bid terms. Respectfully submitted, Dorothy Palumbo, Sr. Asst. City Attorney S:\Our Documcnts\(/as Well Documcnts~agcnda inlb~ation shoo/-Ai~ort Open Spaco..doc S:\Our Documents\Ordinances\03\Airport Open Space Oil Co. Oil and Gas Lease Ordinance Best Bid.doc ORDINANCE NO. 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. WHEREAS, The City Council of the City of Demon has heretofore determined that it is advisable to lease for oil and gas purposes certain real property located at the Airport Open Space, Denton, Texas; and WHEREAS, in compliance with Chapter 71 of the Texas Natural Resources Code (the "Code") the City published notice of its imemion 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 DeNon held a public hearing under Chapter 71 of the Texas Natural Resources Code; and WHEREAS, Pursuam to the Code, the City of Demon desires to negotiate the lease of the property for oil and gas well developmem with the best bidder submitted by Lynx Oil Company, Inc.; and WHEREAS, Lynx Oil Company, Inc. desires to enter into lease negotiations for the land at the Airport Open Space for a non-drill site/pooling agreemem for oil and gas well developmem and after negotiation, to enter into a lease for the land for oil and gas well development and to agree to pay to the City the agreed upon amounts; and WHEREAS, after negotiation the City desires to authorize the City Manager to execute the lease as long as the lease is in substamially the same form as the City's standard lease agreemem for non- drill site/pooling agreemems. NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Incorporation of Preamble. The above and foregoing preamble is incorporated imo the body of this Ordinance as if copied herein in its emirety. SECTION 2. The City Manager or his designee are hereby authorized to negotiate a non- drill site/pooling oil and gas lease agreemem between the City of DeNon and Lynx Oil Company, Inc. in return for the payment(s) as outlined in Attachment A for the approximately 96 acres at the Airport Open Space. SECTION 3. If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competemjurisdiction, 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. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: !!cra I. Item3. ATTACHMENT "A" ADDENDUM I The bidders need to submit an approved development plat for an adjacent well that they intend to drill from or a drawing of the adjacent property showing the general location of the well to the park property. Best available description of the North Lakes Park property: North Lakes Park is located at West Windsor Road and North Bonnie Brae and consists of approximately 353 acres. See the attached Exhibit A for map. Best availaMe description of the Airport Open Space: Thc property begins approximately 200 feet north of the north runway thresh hold and extends approximately 2,500 feet north. At the northern most point, tho property is 1,750' wide and more or less centered on Masch Branch Rd. At the southern most point (200' north of the runway) the property is 1,000 feet wide. The property is generally centered on Masch Branch Road and is in a trapezoid shape with lhe southern bormdary 1,000 wide, northern boundary 1,750 wide and a total length of 2,500 feet centered on the runway eenterline. Acknowledgement of receipt of Addendum 1 This form should be signed and returned with your bid. gas, however we can only pay royalty on the value we receive, and not a grossed up value higher than what we get for the gas. We have also made provisions to differentiate between the acreage held and drained by a vertical or directional welt verses a horizontal well. In addition, since we have no surface fights under this lease, we do not feel this lease should govern our agreements and/or fight of way acquisitions with off site landowners for gas pipelines to transport the gas fi'om the wellhead to the gathering system. Thank you for your consideration of this bid. We are hopeful that we will have a long and prosperous relationship with the city, and can assure you that we will represent the city well as operator on city property. Sincerely, Bob Cat, s - President Cell 940-390-0490 CITY OF DENTON BID FORM GAS VffELL DEVELOPMENT ON AIRPORT OPEN SPACE PROPERTY NON-DRILL SITE/POOLING AGREEMENT Description of property: The lease will be a non-d~l site/pooling agreement. Airport Open Space - to be provided. Minimum Standards of the Bid: Please check each item that will be included in the lease. ~ A primary term of not more than three (3) years from date of execution. ~" Aroyaltyto lessor lSo'Yh~/~,,(~/yg) oil and gas produced from said land. ~p_aid_at ihe' highest price m the area.' A siatiment 6y the Le~s~g~ owner in Denton, County; alld~r~ 0wn~-~ ~;~n~oi~ ~=~}~[ iX/ An annual delay rental of AJ]~ per acre. (This is a 3 year Paid Up Lease) Shut-in payment of.. per acre. Bonus money as specified by bidder. ~ g acres X $ ] OO ~ - total bonus money. ~ '~, ~OO 4° For bonus ,money as specified inthe bid~'o~ 1oo% rrw~,tet.~, p[e.o?oa.r'~,.J,~,,.t.y t~>o~ce"o A Development Plat or other drawing showing a drill plan and drill sites must be submitted with this bid. The City reserves the right to award this bid based on both price and the most advantageous location of the drilling locations and sites. ~" Bidders shall submit information of the bidder's reputation and quality of the bidder's oil and gas services including but not limited to the bidder's financial abihty to provide the oil and gas services, safety record, compliance history and any other relevant information that the bidder submits to the city for the determination of best value. A letter fi:om the Raikoad Commission that the company is in good standing will suffice. The successful bid~der shall comply with al1 requirements in the Code of Ordinances for the City of Denton, Texas. A copy may be obtained in the City Secretary's office or on the City of Denton's website, .www.city_ ofdenton.com. The City of Denton's Gas WelI Ordinances may be obtained from the City Secretary, website or City Attorney's Office. A bidder's conference will be held on Monday July 28, 2003 at 2:00 p.m. at the City of Denton Purchasing Office conference room, 901 B Texas Street, Denton, Texas. An oil and Gas lease, and Right of Way Use Agreement, if any, will be negotiated within ~~ d~ays after the successful bidder is selected. The City shall allow the successful bidder to pool the lease, the land or minerals included in the lease, or any part of these with any other land, leases, minerals estates or parts of any of these to form a drilling or spacing unit for the exploration, development, and production of oil and gas. By submitting a bid, each bidder agrees to waive and does hereby waive any claim the bidder has or may have against the City of Denton, Texas, and the City's respective employees and representatives for the award of attorney fees, arising out of or in connection with the administration, evaluation, or recommendation of any bld, waiver of any requirements under the Bid Documents, or the Contract Documents, acceptance or rejection of any bids, and award of the Bid. By submitting a bid, the bidder specifically waives any right to recover or be paid attorney's fees from the City of Denton, Texas, or any of the City's employees and representatives under any of the provisions of the Texas Uniform Declaratory Iudgments Act (Texas Civil Practice and Remedies Code, Section 37.001, et. seq., as amended). The bidder agrees that this is the intentional relinquishment of a presently existing known fight. By execution and submission of this Bid, the Bidder hereby represents and warrants to the City of Denton that the Bidder has read and understands the Bid Documents and the Contract Documents and this Bid is made in accordance with the Bid Documents. Bidder acknowledges that it understands all terms within the bid documents, which include the waiver provisions, and that it had the fight to consult with counsel regarding all of the above documents. By submitting a bid, each bidder agrees to waive and does hereby waive any claim the bidder has or may have against the City of Denton, Texas and the City's employees, agents and officers, arising out of or in any way connected with the following: 1. the adm~nlstration, evaluation or recommendation of any bid; 2. waiver or deletion of any o f the requirements under the B id Documents or the -3- Contract Documents; acceptance or rejection ofanybids; and 4. award of the Bid or Lease. By submitting a bid, the bidder acknowledges that the bidder understands all terms of the bidd/ng documents and consents to the bidd/ng process and the possibility of a negative assessment. By submitting a bid, the bidder acknowledges and agrees that there was and is no disparity of bargaining power between the bidder and the City of Denton, Texas. The bidder agrees that this is the intentional relinquishment of the above listed presently existing fights. The City reserves the right to wa/ye, delete or amend any of the requirements connected with this bid and to reject any and all bids. ' Certification of Bidder -4- Open Bid 3059 ...... V.O ! ur~.e..~4 9 2 8, Page 7~1~4 L1.,.6.4 acres " ; .... ~P02-0014 ; 6911,64 heres DISCLAIMER This data has been compiled for the City of Denton, Various official and unofficial sources were used to gather this Information. Every effort was made to ensure the accuracy of th~s data, however, no guarantee Is given or implied a~ to the accuracy of said data. http ://~i sweb.cityofdenton.com/servletkom.esri.esfirnap. Esrimap? ServiceName=overview&... 8/1/2003 LYNX OIL COMPANY INC. 4226 1-35 NORTH · DENTON, TEXAS 76207 · (940) 566-1495 COMPANY PROFILE Lynx Oil Co., Inc. was founded in 1983 by Bob Cares, who has served as President since that time. The company is debt free and 100% owned by Bob Gates. Lynx currently operates wells in Wise, Montague, Clay, Haskell and McCullough Coumies in Texas. We have drilled and operated wells throughout Texas and Mississippi. Additionally, Lynx currently owns non-operated interest in wells in Texas, New Mexico, Oklahoma and Colorado. In addition to our drilling operations, we have negotiated the acquisition of nearly 300 wells producing in excess of 2,600 BOPD and_ 10,000 MCFGPD over the past 15 years. Working with industry partners who understand the risk and rewards of the oil industry, all of our projects are privately and internally funded. Lynx has been an operator in good standing with the Texas Railroad Commission since 1983, and has never been cited for any violations by a state, federal or local authority. Lynx currently has 3 office personnel and 3 field personnel. Lynx was the first company to get a Gas Well Development plat approved by the City of Denton under its new Gas Well Ordinance, md currently has over 4,200 acres under lease in Denton County and an activ~e~d~J~lling program with its joint venture panner, Eagle Oil & Gas Co. As of July 2003, we are drilling our 15 Barnett Shale gas well. Bob Gates, age 49, is a native of Denton, Texas. He attended Demon public schools, received an accounting degree from the University of North Texas, (then NTSU), and were on to become a certified public accountant while working as audit supervisor for Bob Bullock at the State Comptroller's Office from 1972 to 1983. He is a member of the Texas Alliance of Energy Producers. He is chairman of the Gas Development Review Committee under the Denton Chamber of Commerce created to work with City of Denton staff on issues concerning gas development in the City and ETJ. He has also recently been appointed to the Denton County Commissioner's Court Environmental Task Force. Personal References: Howard Young- President Justin State Bank 940-648-2753 Curtis Talley - Director CoServ and Justin State Bank 940-242-3221 Mike Riley - Owner Advanced Lightning Tech. Inc. 940455-7300 Jim Horton - Attorney Nelson and Horton Law Offices 940-566~3164 Denton County Lessors: Vaughn Andrus Jim Callahaa Mike Casey Bruce I-Iarbour Jerry and Patricia Kelsoe Krum 1SD Terri Meador & Robert Hammer Corey Pirtle John Porter, Jr. Tony and Linda Riley Jay Rodgers AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 General Government Betty Williams, Director of Management & Public Information- Michael A. Conduff, City Manager SUBJECT: Consider 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 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. BACKGROUND: In December 2001, the City learned that CoServ Communications L.L.C., d/b/a CoServ Communications (CoServ) was providing cable television to the Robson Ranch Development. Research revealed that CoServ was using public easements within the Denton city limits to provide cable television service, without a cable television franchise with the City. This is a violation of Ordinance 99-121, Sections 8-164 through 8-167. In January 2002, CoServ was contacted by the City and requested that CoServ apply for a cable television franchise. CoServ met with the City and revealed that they had filed for bankruptcy in November 2001. CoServ did file an application for a cable television franchise on March 4, 2002. In May 2002, the City sent CoServ an Interim Grant of Authority that would allow CoServ to provide cable service, until a Cable Franchise could be negotiated. In July 2002, the City was notified that CoServ was in the process of coming out of bankruptcy and the assets (system) were to be sold or transferred to the creditor bank. In December 2002, the City received notice that CoServ cable television operations had been assigned by the bankruptcy court to Denton Telecom Partners I, LP d/b/a Advantex Communications (Advantex). In January 2003, the City sent Advantex a proposed Interim Grant of Authority and a cable television franchise application. The City requested that Advantex begin negotiations on the Interim Grant of Authority agreement for the cable service being provided to the Robson Ranch development. The Interim Grant of Authority that was submitted to Advantex contained similar but not identical language that is found in the current cable franchise agreement with Charter Communications. ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) October 7, 2003 Advantex Interim Grant of Authority Page 2 of 3 Advantex responded in February 2003, stating that the proposed agreement was "...voluminous and comprehensive agreement reflective of the large system operated by Charter throughout the City." They recommended a revised franchise agreement, "which is reflective of the small size of our system." In March 2003, the City responded to Advantex that the City desires to keep the terms of our cable franchise agreements comparable. Advantex has a small cable system and we have inserted language in the agreement that would delay the activation of several of the requirements until a certain subscriber threshold is reached. We also referenced the cable related needs of our community and requested a meeting within 30 days to begin the negotiation process. In March 2003, the City did receive a partial cable television franchise application. In April 2003, Advantex rejected the City's proposed Interim Grant of Authority and instead submitted their own proposal. The City reviewed Advantex's proposal and rejected it because it failed to meet several cable community needs. In April 2003, Advantex contacted the city and questioned whether the Interim Grant of Authority adhered to the Telecommunications Act of 1996 and portions of the 1984 and 1992 federal acts.. The City researched these issues and found that the Interim Grant of Authority was in compliance with the federal Communications Act of 1984, as amended 1992 and 1996, and Chapter 8 of the Code of Ordinances of the City of Denton, Texas. In June, The City notified Advantex of our findings and again requested a meeting with them within 30 days to begin the negotiation process. On August 7, 2003, Advantex met with the City and began the negotiation process on the Interim Grant of Authority. Advantex also submitted a payment for franchise fees and a completed cable television franchise application. On August 19, 2003, the Denton City Council held a public hearing on the application filed by Advantex for a cable television franchise. Robson Ranch development was contacted about the heating'and they put out an information letting residents know of the hearing. Council did not receive any comments by the public at the hearing. OPTIONS: 1) Approve the ordinance 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 to October 7, 2004, or the date upon which the City grants or denies a cable franchise renewal to Advantex, whichever occurs first. 2) Deny the ordinance and direct staff to continue working on the terms of the Interim Grant of Authority with Advantex Communications. RECOMMENDATION Staff recommends option #1 ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) October 7, 2003 Advantex Interim Grant of Authority Page 3 of 3 PRIOR ACTION/REV~W (Council, Boards, Commission): 1. Legal Status Report on May 2, 2003. 2. Public Hearing at Council Regular Session, August 19, 2003 3. First Reading of IGA at Council Regular Session, September 16, 2003 FISCAL INFORMATION: City will receive 5% of Advantex gross revenues as fi'anchise fees. Advantex is currently not providing cable modem service on their system. Prepared by: ~hblic Information Officer Respectfully submitted: B~tty Wi~li'ams - Director of Management and Public Information Attachments 1. Ordinance 2. Advantex Interim Grant of Authority ADA/EOEdADEA www.ciWofdenton.com (TDD 800-735-2989) ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS 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. WHEREAS, all cable operators providing cable service within the City of Denton ("City") are required to obtain a cable franchise; and WHEREAS, Marcus Cable Operating Company, L.L.C., doing business a Charter Communications ("Charter"), currently provides cable service in the City under three sets of agreements generally described as an "Initial Grant," the "1995 Amendments" and the "1999 .Amendments" (collectively "Charter Franchise") corresponding to Parts I, II and III hereof; and WHEREAS, CoServ, L.L.C. d/b/a CoServ Communications ("CoServ"), had agreed to enter into an Interim Grant of Authority generally based on the Charter Franchise so that it has legal authority to provide cable service in the City on terms generally comparable to those of Charter while a more permanent franchise authorizing CoServ to provide such service in the City is prepared and negotiated; and WHEREAS, CoServ had filed for bankruptcy, and on December 13, 2002, prior to an agreement being reached, certain assets of CoServ were assigned by the bankruptcy court to Denton Telecom Partners I, LP d/b/a Advantex Communications ("Advantex") to operate and preserve the asset and to offer certain assets, including the cable system, for sale; and WHEREAS, On August 7, 2003 Advantex filed their complete application for a cable franchise in the City of Denton and is continuing to preserve the asset, the cable system, for sale and continuing to provide cable service to the Robson Ranch Subdivision; and WHEREAS, it is in the public interest for the City to grant Advantex this Interim Grant of Authority effective through October 29, 2004 generally based on the documents incorporated herein. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON TEXAS 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. Interim Grant of Authority. The City and Denton Telecom Partners I, LP d/b/a Advantex Communications hereby mutually agree to be bound by the terms of this Interim Grant of Authority for Advantex, as listed in ATTACHMENT A to this ordinance, and to continue to preserve the asset as ordered by the Bankruptcy Court and provide cable service to the Robson Ranch subdivision either until October 29, 2004 or until such time as the City shall formally grant or deny a cable franchise consistent with the provisions of the Cable Communications Policy Act of 1984, as amended, whichever occurs first. SECTION 3. By its signature below, Advantex, the Interim Grantee, hereby agrees that consideration, the receipt and sufficiency of which is hereby acknowledged, has been provided for by the changes made herein, and agrees to be bound by and comply with such changes. Advantex further represents and agrees that the person signing below on behalf of Advantex is the properly authorized official of that corporation and has the necessary authority t o execute t his document a nd further certifies t o t he City t hat a ny necessary resolution or other act extending such authority has been duly passed and is now in full force and effect. SECTION 4. This Ordinance shall be cumulative of all other Ordinances and shall not repeal any of the provisions of such Ordinances except for those instances where there are direct conflicts with the provisions of this Ordinance. Ordinances or parts thereof in force at the time this Ordinance shall take effect and that are inconsistent with this Ordinance are hereby repealed to the extent that they are inconsistent with this Ordinance. SECTION 5. If any section, article, paragraph, sentence, clause, phrase or word in this ordinance or application 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 6. The City Secretary of the City of Denton is hereby directed to engross and em'oll this Ordinance by copying the exact caption and effective date in the minutes of the City Council and by filing this Ordinance in the ordinance records of the City. SECTION7. In accordance with Section 13.02 of the City Charter, this ordinance shall become effective twenty-one days after final approval. The full text of this ordinance shall be published once each week for two consecutive weeks in the official newspaper of the City, the entire expense of which shall be borne by Advantex. The City Secretary is hereby directed to publish the full text of this ordinance in such official newspaper of the City once each week for two consecutive weeks immediately following the passage of this ordinance on second reading. SECTION 8. The Interim Grant of Authority may be assigned or transferred by contract of sale with notice to the City of Denton no later than the closing date of the contract of sale. 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: The City of Denton, Texas, acting herein by its duly constituted authorities, hereby declares the foregoing Ordinance passed on first reading on the ~ day of ,2003; and passed on second reading on the ~ day of ,2003; and being finally effective as of the ~ day of ,2003. /s/ /s/ Euline Brock, Mayor /s/ Pete Kamp, Council Member /s/ Bob Montgomery, Council Member /s/ Jack Thomson, Council Member Mark Burroughs, Council Member /s/ Perry McNeill, Council Member /s/ Raymond Redmon, Council Member The above and foregoing ordinance read, adopted on first reading and passed to second reading by the following votes, this the ~ day of ,2003, at a regular session of the City Council. Euline Brock, Mayor, voting __ Mark Bourroughs, Council Member, voting ~ Pete Kamp, Council Member, voting Perry McNeill, Council Member, voting __ Bob Montgomery, Council Member voting __ Raymond Redmon, Council Member, voting ~ Jack Thomson, Council Member, voting ~ The above and foregoing ordinance read, adopted on the second reading and passed by the following votes, this the __ day of ,2003, at a regular session of the City Council. Euline Brock, Mayor, voting __ Mark Bourroughs, Council Member, voting __ Pete Kamp, Council Member, voting ~ Perry McNeill, Council Member, voting __ Bob Montgomery, Council Member voting ~ Raymond Redmon, Council Member, voting Jack Thomson, Council Member, voting __ ACCEPTANCE of WHEREAS, the City Council of the City of Denton, Texas, did on the __ ,2003 enact an Ordinance entitled: day ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL O F THE CITY OF DENTON, TEXAS 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. WHEREAS, said Ordinance was on the day of , 2003 duly approved and subscribed by the Mayor of said City, and the seal of said City was thereto affixed and attested to by the City Secretary; NOW, THEREFORE, Advantex, hereby in all respects ACCEPTS, APPROVES AND AGREES TO said Ordinance, and the same shall constitute and be a binding contractual obligation of Advantex, and of the City, without waiver of any other remedy by Advantex, does hereby file this, its written acceptance, with the City Secretary of the City of Denton, Texas, in her office. DATED this the day of ., 2003. Denton Telecom Partners, ILP D/B/A Advantex Communications By: Title: ATTEST: By: Title: ATTACHMENT A NON-EXCLUSIVE INTERIM GRANT OF AUTHORITY TO PROVIDE CABLE SERVICE BETWEEN THE CITY OF DENTON, TEXAS AND DENTON TELECOM PARTNERS I, LP d/b/a/ADVANTEX COMMUNICATIONS October 7, 2003 TABLE OF CONTENTS GRANT OF AUTHORITY, PART I ............................................................................... 5 SECTION I. TITLE ............................................................................................................ 5 SECTION II. PREAMBLE ................................................................................................. 5 SECTION III. DEFINITIONS ............................................................................................ 5 SECTION IV. INTERIM GRANT OF AUTHORITY ...................................................... 6 SECTION V. POLICE POWER ......................................................................................... 6 SECTION VI. SYSTEM TIMETABLE ............................................................................. 6 SECTION VII. IDEMNIFICATION AND INSURANCE ................................................9 SECTION VIII. COMPLAINT PROCEDURE .................................................................. 9 SECTION IX. CONSTRUCTION AND MAINTENANCE ............................................ 10 SECTION X. CONSTRUCTION AND EXTENSION ....................................................11 SECTION XI. CONSTRUCTION BOND REQUIRED .................................................. 12 SECTION XII. GOVERNING LAW ............................................................................... 12 SECTION XIII. GRANT TERM ...................................................................................... 13 SECTION XIV. SECTION XV. SECTION XVI. SECTION XVII. SECTION XVIII. SECTION XIX. SECTION XX. SECTION XXI. SECTION XXII. RENEWAL PROCEDURE ................................................................... 13 PERFORMANCE REVIEW ................................................................... 13 SECURITY FUND ................................................................................ 13 LIQUIDATED DAMAGES ................................................................. 15 FORFEITURE ..................................................................................... 15 TRANSFERS ......................................................................................... 16 FRANCHISE FEE ................................................................................... 16 RATES ................................................................................................... 16 ACCESS TO SERVICES AND FACILITIES ..................................... 17 SECTION XXIII. SECTION XXIV. SECTION XXV. SECTION XXVI. SECTION XXVII. SECTION XXVIII. SECTION XXIX. SECTION XXX. SECTION XXXI. SECTION XXXII. EMERGENCY OVERRIDE ............................................................... 19 PROGRAMMING MIX ..................................................................... 19 FORCE MAJEURE .............................................................................. 20 NOTICES ............................................................................................ 20 SAVINGS CLAUSE ......................................................................... 21 CONFLICTING ORDINANCES AND RESOLUTIONS ............... 21 FEES AND COSTS ............................................................................ 21 PAYMENT OF TAXES ....................................................................... 22 NON-LIABILITY ............................................................................... 22 WAIVERS ......................................................................................... 22 SECTION XXXIII.COMPLIANCE REQUIRMENTS ..................................................... 22 PART I. Exhibit A. Insurance .......................................................................................... 24 PART I. Exhibit B. Production Equipment ...................................................................... 26 PART I. Exhibit C. Local Studio Equipment ................................................................... 27 PART I. Exhibit D. Local Programming .......................................................................... 28 GRANT OF AUTHORITY, PART II ............................................................................ 29 SECTION I ........................................................................................................................ 29 SECTION II ....................................................................................................................... 29 SECTION III ...................................................................................................................... 29 SECTION IV ..................................................................................................................... 30 SECTION V ....................................................................................................................... 30 SECTION VI ..................................................................................................................... 30 SECTION VII .................................................................................................................... 30 PART II. Exhibit A ............................................................................................................ 31 GRANT OF AUTHORITY~ PART III .......................................................................... 37 ii 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. Covenants Binding ................................................................................................. 37 This Section is left blank ........................................................................................ 37 This Section is left blank ........................................................................................ 37 Customer Service ................................................................................................... 37 This Section is left blank ........................................................................................ 37 Validity of Grant .................................................................................................... 37 Grant for Cable Only ............................................................................................. 37 This Section is left blank ........................................................................................ 37 Access to Records .................................................................................................. 37 This Section is left blank ........................................................................................ 37 This Section is left blank ........................................................................................ 37 Cable Modem, High-Speed Data and Internet Services ........................................ 38 This Section is left blank ........................................................................................ 38 Frequency of Rate Increases .................................................................................. 38 Other Matters ......................................................................................................... 38 Institutional Network ............................................................................................. 39 HDTV .................................................................................................................... 42 Leased Access and PEG Channels ......................................................................... 43 Transfer .................................................................................................................. 44 This Section is left blank ........................................................................................ 44 Definitions .............................................................................................................. 44 Compliance Requirements ..................................................................................... 46 Fees and Costs ........................................................................................................ 46 Approval and Acceptance ...................................................................................... 46 iii PART lll. Exhibit A. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Customer Service and Consumer Protection ................................. 48 Customer Service Standards ...................................................................... 48 City Monitoring ......................................................................................... 48 Scrambling/Blocking ................................................................................. 48 Pay Per View .............................................................................................. 48 Notification ................................................................................................ 49 Notice of Changes ...................................................................................... 49 Telephone Service Standards ..................................................................... 50 Office/Home Delivery-Pick Up ................................................................. 50 Installation Standards ................................................................................. 51 Installations/Service Calls: ......................................................................... 51 Service Call Charges .................................................................................. 52 Service Interruptions: ................................................................................. 53 Log of Complaints ..................................................................................... 53 Bills ............................................................................................................ 53 Refunds and Credits ................................................................................... 54 Late Payment for Cable Service ................................................................ 54 Disconnection ............................................................................................ 55 Truth In Advertising .................................................................................. 56 Reports: ...................................................................................................... 56 FCC Technical Standards .......................................................................... 57 Liquidated Damages - Telephone Service, Installation, Service Calls ........................................................................................................... 58 Liquidated Damages - Other ...................................................................... 59 Procedure for Assessment of Liquidated Damages ................................... 59 iv 24. 25. 26. 27. Payment of Liquidated Damages ............................................................... 60 Ombudsman ............................................................................................... 60 City Liaison: ............................................................................................... 60 Definitions: ................................................................................................ 61 V INTERIM GRANT OF AUTHORITY PART I. SECTION T. TITLE. This ordinance shall be known and may be cited as "Tmerim Gram of Authority." SECTION TT. PREAMBLE. This ordinance was passed after a full, open and public hearing upon prior notice and opportunity of all imerested parties to be heard and upon consideration of Advamex's qualifications, including its legal, financial and technical qualifications. SECTION TTT. DEFINITIONS. For the purpose of Parts T, TT and TTT of this ordinance, and when not inconsistem with comext, words used herein in the present tense include the future, the word "shall" is always mandatory. The captions supplied herein for each section are for convenience only. Said captions have no force of law, are not part of the section, and are not to be used in construing the language of the section. The following terms and phrases, as used herein, shall be given the meanings set forth below: "Cable Ordinance" shall mean Chapter 8 of the Code of Ordinances of the City of Denton, Texas. (2) "City" is the CITY OF DENTON, TEXAS, a municipal corporation under the laws of the State of Texas. (3) "City Council" is the City Council of the CITY OF DENTON, TEXAS, or its designated representatives. (4) "Gramee," "Advamex" or "Company" means Demon Telecom Partners T, LP d/b/a/Advamex Communications a limited partnership organized and existing under the laws of the State of Texas, duly qualified and authorized to do business in the State of Texas, and it is the grantee of rights under this Interim Grant of Authority. (5) "Robson Ranch" shall mean the Robson Ranch Developmem in the City of Denton. As used in this documem, a word shall have the meaning set forth in Chapter 8 of the Code of Ordinances of the City of DeNon, Texas (hereinafter, the "Cable Ordinance") at Section 8-2, unless it is apparem from the comext that it has a differem meaning, or unless such word is specifically defined herein. The term "Gramee" shall refer to Advamex or a wholly-owned subsidiary of Advamex or a company under common wholly-owned subsidiary of Advamex or a company under common comrol with or comrolling Advamex (provided that the liability of Advamex and each affiliated emity acting as Gramee hereunder shall be join and several), and its successors hereunder. SECTION IV. INTERIM GRANT OF AUTHORITY. There is hereby grained by the City to Gramee an interim gram of the right and privilege to construct, reconstruct, erect, operate and maintain, in, upon, along, across, above, over or under the streets, alleys, easemems, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the City, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maimenance and operation in the City of a cable television system for the transmission of television signals and other signals, either separately or upon or in conjunctions with any public utility maimaining the same in the City, with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this Interim Grant of Authority shall and does hereby include the right in, over, under, and upon streets, sidewalks, alleys, easemems, and public grounds and places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipmem necessary to the Gramee's cable system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. SECTION V. POLICE POWER. Gramee shall, at all times during the term of this Imerim Gram of Authority, be subject to all lawful exercise of the police power of the City. The right is hereby reserved to the City to adopt, in addition to the provisions herein comained and any other existing applicable ordinances, such additional applicable ordinances as it shall find necessary in the exercise of its police power; provided that such additional ordinances shall be reasonable, shall not substamially or materially conflict with or alter in any manner the rights grained herein, and shall not conflict with the laws of the State of Texas, the laws of the United States of America, or the rules of the Federal Communications Commission. All terms, conditions, and provisions of the Cable Ordinance shall be deemed to be embodied in this Agreemem and Gramee does hereby agree to comply with the terms of said Ordinance. SECTION VI. SYSTEM TIMETABLE. (a) Within the time period specified in (b) of this section, the Gramee shall have completely constructed a Cable System which has the capability of delivering at least sixty (60) video channels over at least 860 MHZ Cable bandwidth (the "Cable System Upgrade") and the Gramee shall use its best efforts to maximize usage of such capacity with non-duplicated video channels. (b) The Gramee shall exercise its best good faith efforts to expedite construction of the Cable System Upgrade as required in subsection above in a sound and economical manner. Subject to the provisions of Section XXV (Force Majeure) hereof, Gramee shall meet the following schedule: Submission of all applications for authorizations necessary for construction of the Cable System Upgrade on or before October 29, 2004. (2) Securing all authorizations necessary to begin initial construction of the Cable System Upgrade on or before October 29, 2004. (3) This Section is left blank. (4) The Cable System Upgrade shall have the capability to transmit video, voice and data services in two directions simultaneously ("two way services"). Two-way services shall be instituted at such time as it is consistent with federal and state laws and regulations and it is economically and technically feasible; provided, however, it shall be Grantee's burden to demonstrate to the City at any time, that it is not economically or technically feasible to institute such two-way services. (5) Grantee shall have completed the installation of alternative (standby) power sources at the headend on or before October 29, 2004. Thereafter, Grantee shall maintain such power sources so that all Cable System and work lines and sub-stations may be maintained at full power for at least two (2) hours beyond the time when normal power sources serving the Cable System have ceased. (6) Grantee shall provide the capability for insertion of video programming and other video, voice and data messages into the Cable System from the following points in the City or other locations mutually agreed upon by the City and the Grantee: Municipal Building, 215 E. McKinney; Central Fire Station, 332 E. Hickory; Service Center, 901 Texas Street; Police Station, 601 E. Hickory; Library, 502 Oakland; Library, 3020 N. Locust; Library, 3228 Teasley Ln. and Civic Center, 321 E. McKinney. In addition to the above-designated points for insertion of video programming and other video, voice and data messages into the Cable System described above, Grantee shall provide a central insertion point for the Cable System within the City, which shall be one of the points described above and which shall include signal switching and processing equipment as is reasonably required to allow those utilizing the insertion points listed above to transmit to the other insertion points of the Cable System, or to transmit to all subscribers, at the City's option. Prior to designating the central insertion point for the Cable System within the City, Grantee shall obtain the prior written consent of the City Manager to such designation. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (7) Grantee shall, not later than October 29, 2004, provide and maimain five access channels as follows: (a) A local govemmem channel to be administered by the City or its designee. (b) An education channel to be administered by the DeNon Independent School District or its designee (c) A higher education channel to be administered by Texas Woman's University or its designee. (d) A higher education channel to be administered by the University of North Texas or its designee. (e) A public access channel. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (8) Grantee shall provide and maintain at its expense all lines, facilities and equipmem (such as modulators and coders/decoders) necessary for it to receive access programming at each of the studios for the five access channels described above and simultaneously distribute such programming on the cable system. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (9) Unless otherwise agreed by City in writing, the local governmem channel shall be on channel 26; the education channel shall be on channel 24; the higher education channel for Texas Woman's University shall be on channel 23; the higher education channel for the University of North Texas shall be on channel 22; and the public access channel shall be on channel 25. (c) The Gramee shall submit its drawings and specifications for the Cable System Upgrade to the City not later than October 29, 2004, provided, however, that the City assumes no liability or responsibility whatsoever for the design or construction of the Cable System Upgrade by virtue of its receipt of such drawings and specifications, it being understood that the City's approval of such drawings and specifications shall not be required. At the time the Grantee submits such drawings and specifications to the City, the Gramee shall also submit a detailed plan of action for the accomplishmem of the Cable System Upgrade, including, without limitation, performance criteria which will permit the City to monitor the Grantee's progress toward completing the Cable System Upgrade in a timely fashion. SECTION VII. INDEMNIFICATION AND INSURANCE. GraNee shall hold the City harmless from all loss sustained by the City on accouN of any suit, judgmeN, execution, claim or demand whatsoever against the City resulting from any negligent act or omission on the part of Grantee in the construction, operation or maintenance of its Cable System in the City in accordance with Section 8-142, insurance RequiremeNs, and Section 8-144, indemnification, of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas. For this purpose, GraNee shall carry property damage and personal injury liability policies shall be written by carriers licensed to do business in Texas and with companies with [A+] or better rating in accordance with the curreN Best Key Rating Guide, or with non-admitted carriers that have a financial rating comparable to carriers licensed to do business in Texas approved by the City. The amouNs of such insurance to be carried for liability shall be not less than those amouNs set forth in the Cable Ordinance and such insurance shall comply with "Part i, Exhibit A" to this Ordinance. SECTION VIII. COMPLAINT PROCEDURE. (a) Initially, GraNee shall do all the following: (i) maiNain a business office within 18 miles of Robson Ranch, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on GraNee and its services, (ii) maiNain a convenieNly located bill paymeN office within Robson Ranch where subscribers may pay their bills as soon as a commercial business (such as a bank, drug store or convenience store) is open within Robson Ranch (iii) at no charge to subscribers, pick up and deliver to subscribers converter boxes, remotes and similar GraNee-provided customer premises equipmeN (under normal operating conditions such deliveries and pickups shall occur within 48 hours of a subscriber request for same), and (iv) provide telephone customer service with live operators 24 hours per day, seven days per week. When GraNee has at least 5000 subscribers in the City of DeNon, it shall maiNain a business office within the City of DeNon, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on Company and its services. The office shall be open at least from 8:30 AM to 5:30 PM Monday through Friday. (b) GraNee shall establish procedures for receiving, acting upon, and resolving subscriber complains and complains by the City to the satisfaction of the City Manger and the proposed initial procedures shall be submitted to the City Manager upon GraNee's acceptance of this Agreement. Grantee shall provide written notice of such procedures to subscribers at least one a year. (c) The GraNee shall respond to complains made by the City or subscribers of the Cable System promptly and, if possible, shall resolve complains made by the City or subscribers not more than twenty-four (24) hours following receipt of the complain by GraNee. GraNee shall maintain complete, detailed records relating to its maintenance and operation of the Cable System, which shall be available for inspection by represeNatives of the City at any time during normal business hours of the City. Upon the City's request, GraNee shall respond to City in writing within twenty-four (24) hours following receipt of such request by the GraNee regarding any complaint, which takes longer than one week to resolve. (d) Grantee shall provide a local, toll-free telephone service for subscriber complaints to be answered twenty-four (24) hours each day. Such telephone number shall be prominently displayed on the first page of each customer bill and in the telephone directory of the City of Denton. (e) Grantee shall provide at least ten (10) days written notice prior to discontinuance of service to any subscriber of the Cable System. If Grantee has improperly disconnected Cable System service to any subscriber, it shall provide free reconnection to the Cable System to such subscriber. (f) All personnel, agents and representatives of Grantee, including subcontractors, shall wear photo-identification badges, prominently displayed, when acting on behalf of the Grantee in the City. (g) Grantee shall provide advance notice in writing to the resident, of any private property within the City prior to entry onto such property wherever the Grantee desires that any of its personnel, agents or representatives should enter such property. This requirement shall apply only when it is reasonable under the circumstances at the time and Grantee shall not be required to provide such notice in emergencies. (h) Grantee shall notify each subscriber of the Cable System in advance of the expected time of any service visit to such subscriber's premises. Such notification shall specify whether the anticipated service visit will be before or after noon. Grantee shall accommodate the subscriber with respect to the subscriber's expressed preference for a morning or afternoon service visit. (i) Grantee shall, not less than once a year, provide subscribers of the Cable System, and potential subscribers, with a complete list of service offerings, options, prices, and credit policies associated with the Cable System. (j) Grantee shall establish and maintain sufficient telephone lines and personnel so as to not delay unreasonably the answering of all telephone calls. The City, upon receipt of documented complaints from more than ten subscribers during a single business day between the hours of 8:30 a.m. and 6:00 p.m. regarding their inability to reach a live, personal representative of Grantee during non-emergency, non-system outage periods, may seek liquidated damages as provided in Section 8-128 of the Cable Ordinance. SECTION IX. CONSTRUCTION AND MAINTENANCE. (a) All structures, lines and equipment erected by Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, easements, and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners, and Grantee shall comply with all reasonable, proper and lawful ordinances of the City now or hereafter in force. Existing poles, posts, conduits, and other such structures of any electric power system, telephone company, or other public utility located 10 in the City shall, when possible, be made available to Grantee for leasing or licensing upon reasonable terms and rates and shall be used to the extent practicable in order to minimize interference with travel and avoid unnecessary duplication of facilities. Poles owned by City shall be made available to Grantee for its use under the terms, conditions and provisions of a separate Pole Rental Agreement to be negotiated between the parties. (b) Grantee shall not open or disturb the surface of any street, sidewalk, driveway or public place for any purpose without first having obtained a permit to do so in accordance with the applicable ordinances, including, but not limited to, Chapter 21 of the Code of Ordinances of the City of Denton, Texas, except that Grantee shall not be required to post a bond prior to commencing such disturbance. Grantee specifically agrees to pay any fees in connection herewith required by City Ordinances. In case of any disturbance by the Grantee of pavements, sidewalk, driveway, or other surfacing, Grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as before said work was commenced. (c) In the event that at any time during the period of this Interim Grant of Authority the City shall elect to alter or change any street, alley, easement, or other public way requiring the relocation of Grantee's facilities, then in such event, Grantee, upon reasonable notice from the City, shall remove, relay, and relocate the same at its own expense. (d) Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines to permit the moving of the building. The expense of such temporary removal shall be paid by the person requesting the same, and Grantee shall have the authority to require such payment in advance. (e) All poles, lines, structure or other facilities owned by Grantee in, on, over and under the streets, sidewalks, alleys and easements and public grounds or places of the City shall be kept by Grantee at all times in a safe and substantial condition. SECTION X. CONSTRUCTION AND EXTENSION. (a) Grantee will submit a construction plan that will include system design details, equipment, specifications and design performance criteria. The plan will also include a map of the entire authorized areas of service and the mandated areas of service, and the dates by which service must be provided to each area. The areas within the authorized area where the cable system is currently available to subscribers, including a schedule of construction for each year that construction or reconstruction is proposed. (2) The areas within the authorized area where the cable system cannot reasonably be extended due to lack of present or planned development or other similar reasons, with the areas and the reasons for not serving them clearly identified on the map. 11 (b) provisions: In regards to the mandated areas of service, Grantee must adhere to the following (1) [Robson Ranch] Gramee shall install and extend the cable system as utilities are installed in Robson Ranch and be capable of providing cable service to dwelling units therein as they are occupied. As dwelling units are occupied, the Gramee shall provide cable services to any and all persons requesting service at any location in Robson Ranch. Due to the currem or expected density of population within Robson Ranch, the Grantee agrees not to impose on any current or future subscriber within Robson Ranch any line extension charge or comparable charge for extending the cable system to the subscriber's location. (2) [Other subdivisions] Gramee does not imend to provide cable services outside of the Robson Ranch development. If grantee desires to provide cable service outside of the Robson Ranch developmem, within the City of Demon, gramee shall be required to receive permission from the City of Denton prior to providing any cable service outside of the Robson Ranch development, and this agreement shall be amended to reflect the terms and conditions of the provision of cable service by gramee. (c) Nothing in this section shall prevent the Grantee from constructing or reconstructing the system earlier than planned. However, any delay in the system construction beyond the times specified in the plan report timetable must be submitted to and approved by the City Council. (d) Grantee shall construct, install, operate and maintain its system in a manner consistent with any construction standards submitted by Grantee as a part of its application. Grantee agrees to comply with applicable codes, and any supplements or amendments thereto, including any codes referenced in its application. SECTION XI. CONSTRUCTION BOND REQUIRED. Pursuant to Section 8-129, Construction Bond of Chapter 8, Cable Television, of the Code of Ordinances of the City of Demon, Texas, the Gramee shall file with the City a construction bond in the amount of $1,000,000 when the grantee notifies the City of Denton of its intent to construct the cable system outside of the Robson Ranch development. The construction bond shall be terminated only after the City Council finds that the Grantee has satisfactorily completed construction of the cable system pursuant to the terms of the Cable Ordinance and this Imerim Gram of Authority. SECTION XII. GOVERNING LAW. This Imerim Grant of Authority is governed by and subject to all applicable provisions of the Communications Act of 1934, as amended through 1996; regulations promulgated by the 12 Federal Communications Commission pursuant thereto prior to acceptance by Grantee of this Interim Grant of Authority as provided in Part III, Section 26; as well as the laws of the State of Texas, not inconsistent therewith. SECTION XIII. INTERIM GRANT OF AUTHORITY TERM. This Imerim Grant of Authority shall take effect and be in full force from and after acceptance by Gramee as provided in Part III, Section 26, and the same shall cominue in full force and effect umil one year from the effective date. SECTION XIV. RENEWAL PROCEDURE. This Imerim Gram of Authority shall be subject to renewal in accordance with the terms and conditions of Section 626 of the Cable Communications Policy Act of 1984, 47 U.S.C. 546, as amended through 1996, except the Gramee hereby unconditionally and irrevocably waives the application of the "formal renewal" process set forth in Section 626 with the same force in effect as if the "written renewal notice" set forth in the second semence of Section 626 (a)(1), 47 U.S.C. 546 (a)(1), was never provided. SECTION XV. PERFORMANCE REVIEW. The parties agree that the City shall have the right to conduct a performance evaluation with the Grantee and the citizens of the City relating to this Interim Grant of Authority. The Grantee agrees to incur the costs of the evaluation and the City's ascertainment of the current cable-related needs and interests of the City's residents; provided, however, that the total paymem by the Gramee shall not exceed Twenty-Five Thousand ($25,000.00) Dollars. This sum shall be adjusted on the basis of the proportion that the then all Urban Consumer Price Index (CPI-U) for the Dallas/Fort Worth Standard Metropolitan Statistical Area bears to the February, 1988 index, which was 114.0. The City shall provide Gramee with the names of three nationally recognized independent cable television consulting firms and the Grantee, together with the City, shall select one of the three consultants to perform the evaluation. Grantee agrees that such costs are in addition to and not to be deducted from the franchise fees due the City. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. SECTION XVI. SECURITY FUND. (a) Within twenty (20) days after the effective date of the Imerim Gram of Authority, the Gramee shall provide an acceptable surety or performance bond or letter of credit with the City's Executive Director of Finance, and maintain on deposit through the term of the Interim Gram of Authority, the sum of Ten Thousand ($10,000) Dollars in monies, as security for the faithful performance by it of all the provisions of this Imerim Gram of Authority, and compliance with all orders, permits and directions of any agency of the City having jurisdiction over its acts or defaults under this contract, and the payment by the Grantee of any claims, liens and taxes due the City which arise by reason of the construction, reconstruction, operation or 13 maintenance of the system and the payment by the Grantee of any penalties or liquidated damages due the City pursuant to this Interim Grant of Authority. (b) The City Manager may draw upon the security fund in the even of any of the occurrences set forth in this Section and in Section 8-128 (Liquidated Damages), of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas. Within ten (10) days after notice to it that any amount has been withdrawn or paid out, as is appropriate, from the security fund deposited pursuaN to subdivision (a) of this section in accordance with Section 8- 128 (Liquidated Damages), the GraNee shall pay to or deposit with the Executive Director of Finance a sum of money sufficient to restore such security fund to the original amount of Ten Thousand ($10,000) Dollars. Failure to restore said security fund to the original amouN shall constitute a material breach. (c) Examples of a basis for drawing upon the security fund include, but are not limited to the following: (1) failure of the GraNee to pay to the City any taxes after ten (10) days written notice of delinquency; (2) failure of the GraNee to pay to the City after ten (10) days written notice, any amouNs due and owing the City by reason of the indemnity provision of Section 8-144 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Denton, Texas; (3) failure by the Grantee to pay to the City, any liquidated damages due and owing to the City pursuant to Section 8-128 of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (4) failure by the Grantee to pay to the City any amounts due pursuant to Section 8-57(g) of the Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (5) failure by the GraNee to pay, upon ten (10) days written notice, any amounts owing as franchise fees pursuant to Section 8-135 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Denton, Texas. (d) The security fund deposited pursuaN to this Section shall become the property of the City in the event that this contract is cancelled by reason of the default of the Grantee. The GraNee, however, shall be eNitled to the return of such security fund, or portion thereof, as remains on deposit with the Executive Director of Finance at the expiration of the term of the Interim Grant of Authority, provided that there is then no outstanding default on the part of the Grantee. 14 (e) The rights reserved to the City with respect to the security fund are in addition to all other rights of the City whether reserved by this coNract or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the City may have. SECTION XVII. LIQUIDATED DAMAGES. (a) The parties agree to the liquidated damages specified in Section 8-128, Liquidated Damages of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas, as adopted on the 1st day of November, 1988, but without prejudice to any other remedies available to the parties hereto to the extent permitted by law. The parties agree that the liquidated damages set forth in the ordinance may be greater or less than the City's actual damages and such damages represent the best estimate by the parties hereto as the likely extent of such damages. The liquidated damages are not intended to constitute a penalty, but rather, are designed to save the parties from having to engage in costly litigation with regard to the extent of such damages. In addition to the amouNs set forth in the Cable Ordinance, the following liquidated damages shall apply: For breach of any service standards adopted pursuaN to Section VIII, hereof $200 per (b) If the City Manager determines that the GraNee is liable for liquidated damages, he shall issue to the Grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis for the assessment, and shall inform the Grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council. If the GraNee desires a hearing before the City Council, it shall send a written notice of appeal by certified mail to the City Manager within ten (10) days of the date on which the City sen the notice ofiNeNion to assess liquidated damages. In the event the City Manager receives such a notice from the Grantee, the hearing on the GraNee's appeal shall be held within thirty (30) days of the date on which the City sen the notice of intention to assess liquidated damages unless mutually extended by the City and the GraNee. After such hearing, and based on the facts before it, if the City Council finds (a) that an extension of time or other relief should be graNed, or (b) that there was never a violation, then it shall waive the City Manager's assessmeN of liquidated damages. If the City finds that the facts warrant the assessment of liquidated damages, or any portion thereof, the City may at any time thereafter draw the amouN of liquid damages from the security fund established pursuaN to Section 8-128 of the Cable Ordinance up to the full amouN of accrued liquidated damages to such date. In considering whether or not to waive all or a portion of any liquidated damages assessable against the Grantee hereunder, the City shall consider, without limitation, the number, frequency and magnitude of any prior breaches of this AgreemeN by the GraNee and the speed with which the GraNee cured breach or breaches. SECTION XVIII. FORFEITURE. If Grantee should violate any of the terms, conditions or provisions of this grant or if GraNee should fail to comply with any reasonable provisions of any ordinance of the City 15 regulating the use by Grantee of the streets, alleys, easement or public ways of the City, and should Gramee further cominue to violate or fail to comply with the same for a period of thirty (30) days after Gramee shall have been notified in writing by the City to cease and desist from any such violation or failure to comply so specified, then Gramee may be deemed to have forfeited and annulled and shall thereby forfeit and annul all the rights and privileges grained by this Imerim Gram of Authority; provided, that such forfeiture shall be declared only by written decision of the City Council after following the procedures set forth in Section 8-59 of the Cable Ordinance and an appropriate public proceeding before the City Council affording Gramee due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply; and provided further that the City Council may, in its discretion and upon a finding of violation or failure to comply, impose a lesser penalty than forfeiture of this Imerim Gram of Authority or excuse the violation or failure to comply upon a showing by Grantee of mitigating circumstances. Grantee shall have the right to appeal any finding of violation or failure to comply and any resultam penalty to or seek relief in any court of competem jurisdiction. In the event of any determination by the City to revoke this Interim Grant of Authority, such a determination shall be stayed during the pendancy of any judicial review thereof. SECTION XIX. TRANSFERS. All of the rights and privileges and all of the obligations, duties, and liabilities created by this Imerim Gram of Authority shall pass to and be binding upon the successors of the City and the successors and assigns of Grantee; and the same shall not be assigned or transferred without the prior written approval of the City Council, which approval shall be sought and obtained in accordance with Section 8-62 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Demon, Texas. Gramee specifically agrees to comply with the provisions of said Section 8-62 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Demon, Texas. SECTION XX. FRANCHISE FEE. In consideration of the terms of this Interim Grant of Authority if this Interim Grant of Authority is extended beyond September 11, 2006, then for the first ten years from the date of Grantee's acceptance of the terms of the initial Interim Grant of Authority, Grantee agrees to pay to the City a sum of money equal to five percem (5%) of Gramee's gross subscriber revenues per year pursuant to the provisions of Article I of the Cable Ordinance. The Grantee shall pay to the City in quarterly installmems within forty-five (45) days after March 30, June 30, September 30 and December 31 of each year the franchise fee attributable to gross receipts of the Grantee during the preceding quarter. SECTION XXI. RATES. To the extent permitted by federal and state law, the City may regulate the following rates, fees and charges: (a) Rates for the provision of basic cable service to subscribers whether residemial or commercial, including multiple tiers of basic cable service. 16 (b) Rates for the initial installation or the rental of one set of the minimum equipment, which is necessary for the subscribers' receipt of basic cable service. (c) Any other rates for any type of services delivered by the Grantee that may become subject to local regulation. The Grantee may petition the Council for a change in rates subject to regulation by filing a proposed rate schedule with the City Clerk. The procedures outlined in Section 8-136 of the Cable Ordinance shall then be followed. SECTION XXII. ACCESS TO SERVICES AND FACILITIES. Grantee shall provide the minimum range of services required from time to time by the FCC as its regulations presently exist or may hereafter be amended including, without limiting the foregoing, public, educational and governmental use channels in accordance with the following conditions: (a) Grantee shall provide and maintain five channels for public programming, educational programming and governmental programming as set forth in Sections VI (b)(7) and VI (b)(8) above. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (b) This Section left blank. (c) The public access channel described in Section VI (b)(7)(e) above shall be made available for non-commercial use to qualifying applicants without charge when requested all in accordance with the rules hereinafter mentioned. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (d) Rules shall be established by the cooperative effort of City and the Grantee regarding access programming, priority of use for the access channel, prohibition of lottery information, obscene or indecent matter, and permitting public inspection of the complete record of names and addresses of all persons or groups requesting access time. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (e) Should a dispute arise between the user of an access channel and the Grantee relative to the quality of the audio or visual signal, at the request of either, the dispute will be submitted to an independent engineer to be jointly selected by City and Grantee. The party requesting that such testing be performed shall be required to pay for the cost of testing and analysis performed by the engineer, unless the engineer shall find that there is a distortion of signal quality. If a distortion is found, the party responsible for causing the distortion shall pay the cost of testing. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (f) The Grantee shall provide "A/B switches" and "lock boxes," or similar parental control devices, at a reasonable price to any subscriber upon such subscriber's request. 17 (g) Subject to Section 8-101 of the Cable Ordinance, the Grantee agrees to provide reasonable equipment to be used by access cable casters with the aid of a technical and production staff to be provided by the cable operator. Equipment that can store programs for later showing shall be provided. In addition, Grantee shall make available a centrally located studio to all access users on a first-come, first-serve basis. Grantee shall provide, at a minimum, the production equipment and facilities designated in "Part I, Exhibit B." All equipment shall be maintained in good working order by Grantee and shall be replaced as needed, consistent with good operating practice. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (h) Grantee agrees to maintain a local programming studio containing the equipment specified in "Part I, Exhibit C," and shall provide adequate staffing for the local programming studio and for training of the public in the use of production equipment. Grantee shall keep a log of inquiries by citizens requesting such training and shall conduct free training sessions in use of cablecasting equipment cablecasting techniques not less than once each three months during the term hereof. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (i) Grantee also agrees to provide an instructor and the facilities to train, without charge, once per year, potential access users through sessions offered through the Denton Independent School District. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (j) Grantee shall establish rules and rates if necessary, to ensure that the studio is available in an equitable manner provided that Grantee shall not, charge for use of the public and educational access channels unless City has approved the charging of the proposed. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (k) The parties hereby incorporate by reference the provisions of 47 U.S.C. 532, which provisions are hereby amended to apply to the Grantee and the City, as appropriate. These provisions are incorporated herein to assure that the widest possible diversity of information sources are made available to the residents of the City from the Cable System in a manner consistent with the growth and development of the Cable System. Grantee shall undertake any and all construction installation necessary to keep current with the latest technological and economically feasible developments in the state-of-the-art cable television, whether with respect to increasing channel capacity, developing new services, and instituting two-way service or any other state-of-the-art technology. Further, Grantee specifically agrees to comply with Section 8-163 of the Cable Ordinance. 18 SECTION XXIII. EMERGENCY OVERRIDE. Grantee shall provide and maintain the equipment necessary for the City to maintain an emergency alert system to override, by any telephonic means, the audio and/or video signal to transmit a message regarding a bona fide emergency over all cable video channels simultaneously. At City's option such message shall be transmitted either by a text crawl across the bottom of the screen or by audio override and video blanking on all channels. For telephonic activation of the emergency alert system, Grantee shall provide City with the ability to activate the system from any telephone but with an appropriate security code and procedures. Grantee shall provide appropriate training to City personnel as may be necessary to operate the systems, equipment and facilities described in this Section. Grantee shall designate a channel, which will be used for emergency broadcasts. Grantee shall provide a remote data terminal, telephone lines, modems, cables and any other items needed to adequately supply this service. Such equipment shall be maintained at a location designated by City. SECTION XXIV. PROGRAMMING MIX. (a) Grantee agrees to provide programming that at least maintains the mix of distinct and separate channels listed in "Part I, Exhibit D." In accordance with the Cable Act, the Grantee shall, for the term of this Agreement, maintain at least the mix, quality and level of programming set forth in "Part I, Exhibit D." (b) In addition to the programming mix indicated above, Grantee will use the upgraded system to provide a wide range and assortment of optional programming services. Grantee shall provide, at a minimum, the following additional services: Provision of an additional full channel space for films and cultural entertainment programming (2) Provision of an additional full channel space for children's entertainment programming (3) Addition of a full channel space for documentary, public broadcasting programming (4) Addition of a full channel space devoted to weather information service (5) Addition of a Pay-Per-View Channel. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (c) The following services shall be provided not later than October 29, 2004. Grantee agrees to produce a minimum of 400 hours of local origination programming annually. One hundred (100) hours of such programming may be supplied from other of Grantee local 19 origination sources. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. SECTION XXV. FORCE MAJEURE. In the event the Grantee's diligent performance of any of the terms, conditions, obligations or requirements of this Agreement is prevented or impaired due to any cause beyond its reasonable comrol which was not reasonably foreseeable to the parties hereto, such inability to perform shall be deemed to be excused for the period of such impairmem, and no penalties or sanctions shall be imposed. Before invoking this Section, the Gramee must have exercised good faith in attempting to perform such terms, conditions, obligations or requirements. Causes beyond the Grantee's reasonable control and not reasonably foreseeable to the parties hereto shall include, without limitation, labor unrest and strikes. Upon its best good faith efforts to obtain all authorizations on an expedited basis, the Gramee shall also be excused for time delays in construction requirements in Section VI which are caused by unreasonable delays on the part of utility companies or the City in issuing licenses, permits or authorizations for poles and conduits or other authorizations necessary to continue construction. Where the Grantee cannot obtain access to any individual's property, after due diligence and a good faith effort by the Grantee to obtain access to such property, compliance with the terms of this Agreement shall be excused by the City as to that individual and the consequemial effects thereof only, and only for such period as the property is inaccessible. Where the cause beyond the Gramee's comrol is either an act of God or civil emergency, an inability to perform during such period shall not be an independem ground for termination of this Imerim Grant of Authority. SECTION XXVI. NOTICES. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder by any party to another shall be in writing and shall be sufficiemly given and served upon the other party, immediately if delivered personally or by telex or telecopy (provided with respect to telex and telecopy that such transmissions are received on a business day during normal business hours), on the second business day after dispatch if sent by first class mail, registered or certified, return receipt requested, postage prepaid and addressed as follows: The City: City Manager City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 Public Information Officer City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 20 The Grantee: City Attorney City of Demon, Texas 215 E. McKinney Street Denton, Texas 76201 Advantex Communications 7701 South Stemmons, Suite 210 Corimh, Texas 76210 Attention: Legal Department SECTION XXVII. SAVINGS CLAUSE. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by a federal or state court or administrative or governmemal agency of competem jurisdiction, specifically including the Federal Communications Commission, such portion shall be deemed a separate, distinct and independem provision, and such holding shall not affect the validity of the remaining portions thereof. SECTION XXVIII. CONFLICTING ORDINANCES AND RESOLUTIONS. In the event of any conflict between the terms of Parts I, II, and III this Interim Grant of Authority, Part II of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Part I, and Part III of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Parts I and II. In the event of any conflict between the terms of this Interim Grant of Authority and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. SECTION XXIX. FEES AND COSTS. (a) The Gramee shall provide to the City a lump sum gram of $4,000 for capital facilities for the PEG Channels on the dates and in the amoums set forth below. City shall allocate such grants among the entities administering the PEG Channels as it determines is in the public interest. The grant will be paid upon acceptance of this Interim Grant of Authority by the Grantee. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (c) The Gramee will reimburse the City all its costs in association with the preparation and award of this Interim Grant of Authority, including costs of consultants and attorneys, not to exceed $1,500. In addition, the Gramee will reimburse the City all its costs in association with the preparation and award of a replacement for this Interim Grant of Authority with a more permanent agreement, including publication costs and costs of consultants and attorneys. The preceding reimbursement requirement applies whether the permanent agreement is executed on or before October 29, 2004 as is currently anticipated, or at some subsequent point in time by renewal, extension or otherwise. 21 (d) The Grantee will remit its check for such costs within ten days of the City invoicing the Grantee for same. Reimbursement of costs under this provision shall not be considered a payment of franchise fees, shall not reduce the franchise fee otherwise payable and shall not be passed through to subscribers. Company specifically waives any claim to the contrary. SECTION XXX. PAYMENT OF TAXES. The Grantee covenants and agrees that it will pay and discharge, or cause to be paid and discharged, in timely fashion all payments in lieu of taxes, service charges, assessments, utility fees, user fees and other governmental charges which may lawfully be imposed upon the Grantee with respect to the Grantee or the Cable System or any portion thereof or relating thereto, or upon the revenues and income therefrom and will pay all lawful claims for labor, material and supplies which, if unpaid, might become a lien or charge upon any of said properties, revenues or income or which might impair the security interest granted by this Agreement or the value of the Cable System or the Grantee; provided that nothing in this Section shall require the Grantee to make any such payment so long as the Grantee in good faith shall contest the validity thereof. SECTION XXXI. NON-LIABILITY. The City shall not be liable to the Grantee or any other person or entity for death or personal injury or for loss, damage or destruction of property in, on or about the Cable System or any part thereof by or from any cause whatsoever other than the City's own negligence or willful misconduct, nor shall the City be liable in any way or regard to the Grantee or to any of Grantee's affiliates, officers, directors, members, agents or employees if any claim is asserted against the Grantee by any taxing authority or other entity as the result of any election or decision which the Grantee may make or may have made with respect to the Cable System for purposes of filing federal or state income or franchise tax returns or making any other type of filing whatsoever; and the Grantee shall indemnify and save harmless the City and its officers, agents and employees from, and defend the same against, any and all claims, liens, liabilities, expenses (including attorneys' fees and disbursements), losses and judgments arising from death or personal injury or from the loss, damage or destruction of property of any person or entity resulting directly or indirectly from any acts, omissions or negligence of the Grantee, its officers, agents or employees with respect to the use of, occupancy of, or operation in, on, of, or about the Cable System or the Grantee. SECTION XXXII. WAIVERS. No waiver by City of any breach, default or violation of the terms, covenants or conditions hereof to be performed, kept and observed by Grantee shall be construed to be or act as a waiver of any subsequent default of any of such terms, covenants and conditions. SECTION XXXIII. COMPLIANCE REQUIREMENTS When Grantee's cable subscribers exceed Five Thousand (5000) within the City of Denton, the Grantee will be required to comply with the below listed sections, or parts of sections, upon request from the City. For the purposes of this section, cable subscriber shall 22 mean a person lawfully receiving cable service from the Grantee. Where the grantee bills on a "bulk basis," each individual household, office or other entity lawfully receiving the service shall be considered a subscriber, regardless of whether or not they are billed directly by the Grantee. Section VI, SYSTEM TIMETABLE, (b), (6), (7) and (8). Section XV, PERFORMANCE REVIEW. Section XXII, ACCESS TO SERVICES AND FACILITIES, (a), (c), (d), (e), (g), (h), (i) and (j). Section XXIV, PROGRAMMING MIX, (b) (5) and (c). Section XXIX, FEES AND COSTS. 23 PART I. EXHIBIT A. INSURANCE Coverage Required. Prior to beginning any construction in or installation of the Cable System in the Public Rights-of-Way Grantee shall obtain insurance as set forth below and file certificates evidencing same with City. Such insurance shall be maintained in full force and effect until the end of the term of this Interim Grant of Authority. Commercial general liability insurance, including Completed Operations Liability, Independent Contractors Liability, Contractual Liability coverage, railroad protective coverage and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage, in an amount not less than Five Million Dollars ($5,000,000). Liability insurance for sudden and accidental environmental contamination with minimum limits of Five Hundred Thousand Dollars ($500,000) and providing coverage for claims discovered within three (3)years after the term of the policy. Automobile liability insurance in an amount not less than One Million Dollars ($1,000,000). Worker's compensation and employer's liability insurance with statutory limits, and any applicable Federal insurance of a similar nature. The coverage amounts set forth above may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. If more than one insurance policy is purchased to provide the coverage amounts set forth above, then all policies providing coverage limits excess to the primary policy shall provide drop down coverage to the first dollar of coverage and other contractual obligations of the primary policy, should the primary policy carrier not be able to perform any of its contractual obligations or not be collectible for any of its coverages for any reason during the term of this Interim Grant of Authority, or (when longer) for as long as coverage could have been available pursuant to the terms and conditions of the primary policy. Additional Insured. City shall be named as an additional insured on all policies (other than worker's compensation and employer's liability). All insurance policies shall provide that they shall not be canceled, modified or not renewed unless the insurance carrier provides thirty (30) days prior written notice to City. Grantee shall annually provide City with a certificate of insurance evidencing such coverage. All insurance policies (other than environmental 24 contamination, worker's compensation and employer's liability insurance) shall be written on an occurrence basis and not on a claims made basis. Qualified Insurers. All insurance shall be issued by insurance carriers licensed to do business by the State of Texas or by surplus line carriers on the Texas Insurance Commission approved list of companies qualified to do business in Texas. All insurance and surplus line carriers shall be rated A+ or better by A.M. Best and Company. Deductibles. If the insurance policies required by this Exhibit A are written with retainages or deductibles in excess of $50,000, they shall be approved by City's Manager in advance in writing. Grantee shall indemnify and save harmless City from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished hereunder. Contractors. Grantee's contractors and subcontractors working in the Public Rights-of-Way shall carry in full force and effect commercial general liability, environmental contamination liability, automobile liability and worker's compensation and employer liability insurance which complies with all terms of this Exhibit A. In the alternative, Grantee, at its expense, may provide such coverages for any or all its contractors or subcontractors (such as by adding them to Grantee's policies). Insurance Primary_. Grantee's insurance coverage shall be primary insurance with respect to City, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions (collectively "them"). Any insurance or self-insurance maintained by any of them shall be in excess of Grantee's insurance and shall not contribute to it (where "insurance or self- insurance maintained by any of them" includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self-insurance program or policy, or self-insured retention or deductible by, for or on behalf of them). 25 PART I. EXHIBIT B. PRODUCTION EQUIPMENT This Section left blank. 26 PART I. EXHIBIT C. LOCAL STUDIO EQUIPMENT This Section left blank. 27 PART I. EXHIBIT D. LOCAL PROGRAMMING MIX This Section left blank. 28 INTERIM GRANT OF AUTHORITY PART II. SECTION i. That the City Council hereby confirms the Interim Grant of Authority Part i subject to the following terms and conditions and the terms of this Part ii: A) Execution by Grantee of the acceptance referred to in Part III, Section 26 of this Ordinance, which includes accepting the agreement attached as Exhibit A to this Part ii, including, without limitation, Grantee's agreement to pay liquidated damages not less than $4,000 for failure to comply with customer service standards in accordance with Section D 1 of the agreement that is attached as Exhibit A to this Part ii, including, without limitation, the following conditions: Gramee will by October 29, 2004 provide the capability for insertion of video programming and other video, voice, and data messages imo the cable system at the points in the City in accordance with the terms required under Section Vi (b) (6) of Part i of the imerim Gram of Authority, and will comply completely with the above section of the Interim Grant of Authority. The terms of this section will be activated when the terms in Part ii, Section iii (Compliance Requiremems) are met. (2) This Section is left blank. (3) This Section is left blank. (4) This Section is left blank. B) This Section is left blank. SECTION ii. Grantee may, at any time and from time to time, assign or grant or otherwise convey one or more liens or security interests in its assets, including its rights, obligations and benefits in and to the cable television system and Interim Grant of Authority, to any lender providing financing to Grantee. Any assignment or transfer by a lender or as a result of a foreclosure will require the City's consem as provided in the imerim Gram of Authority. SECTION iii. (COMPLIANCE REQUIREMENTS) When Gramee's cable subscribers exceed Five Thousand (5000) within the City of Demon, the Gramee will be required to comply with the below listed sections, or parts of sections, upon request from the City. For the purposes of this section, cable subscriber shall mean a person lawfully receiving cable service from the Gramee. Where the Gramee bills on a "bulk basis," each individual household, office or other emity lawfully receiving the service shall be considered a subscriber, regardless of whether or not they are billed directly by the Grantee. Part ii, Section i, (A), (1). Part ii, Exhibit A, Section H, Service Equipmem for Public Facilities, (1). Part ii, Exhibit A, Section O, Other Provisions, (a) 29 SECTION IV. This Section is left blank. SECTION V. (CONFLICT) In the even of any conflict between the terms of Parts I, II, and III this Imerim Grant of Authority, Part II of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Part I, and Part III of this Interim Grant of Authority (including exhibits thereto) shall prevail over Parts I and II. In the even of any conflict between the terms of this Imerim Gram of Authority and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. SECTION VI. This Section is left blank. SECTION VII. This Section is left blank. SECTION VIII. This Section is left blank. 30 PART II. EXHIBIT A A. The promises, covenants, and conditions contained herein inure to the benefit of the City and are binding on Grantee. B. This Section is left blank. C. This Section is left blank. D. Customer Service. Grantee will comply with the customer service rules of the FCC as presently in effect, 47 CFR § 76.309. Grantee's compliance shall be measured and enforced as follows: ao For the purpose of such rules "normal business hours" therein are deemed to be 8:30 AM to 5:30 PM Monday through Friday. bo Transfer to or answering by a voice mail system (or other automated response system) does not constitute answering "by a trained customer representative" under § 76.309(c)(ii) or analogous provisions of such rules. Co Within 20 business days of the close of each calendar quarter (or monthly, if the City requests same), Grantee will provide the City with a report in such form as the City and Grantee may reasonably agree, setting forth on a consistent basis, fairly applied, Grantee's performance as compared to such standards, including in particular as compared to the standards for telephone answer time, busy signals, standard installations, service interruptions, appointment windows, refunds and credits. do Such reports shall show and use the telephone calls originating from within the City if that information is readily available from the system, and as to installations, service interruptions, appointment windows, refunds, credits and the like shall show and use data only for subscribers in the City. eo Such reports shall show Grantee's performance including and excluding any periods of abnormal operating conditions, and if Grantee contends that any such abnormal conditions occurred during the reporting period in question, they shall also describe the nature and extent of such conditions. 31 Grantee acknowledges that noncompliance with customer service standards will harm subscribers and the City and that the extem of harm will be difficult or impossible to measure. The City may therefore assess liquidated damages against Gramee for non- compliance with the preceding customer service standards as follows: The FCC Rules curremly state as to § 76.309(c)(1)(ii) and (iv); and § 76.309(c)(2)(I), (ii), (iii) and (iv) (collectively "quarterly customer service standards") that the standards set forth therein "shall be met no less than ninety (90) percem of the time under normal operating conditions measured on a quarterly basis." (i) Liquidated damages may be assessed if Gramee does not meet the ninety (90) percem standard for a given subsection (for example, §76.309(c)(2)(ii)) of the quarterly customer service standards in a given calendar quarter as follows. First Second Third and subsequem Noncompliance Noncompliance Noncompliance $1,000 $2,000 $4,000 (ii) The City may collect liquidated damages from any bond, letter of credit, or security fund furnished under the Imerim Gram of Authority. In the evem ora change in 47 CFR § 76.309 that makes any of the Federal customer service standards therein less stringent than those in effect in July, 1995, the City may adopt customer service regulations as to the subject matter of the portion of the rule that is changed. City agrees to meet with Grantee on any proposed changes prior to taking action on them, and to provide Grantee with at least 60 days notice of such action. Grantee agrees to comply with any such provisions that are no more stringem than those comained in 47 CFR § 76.309 as in effect in July, 1995 and to such extent agrees that it is not entitled to recover the costs of such compliance through external cost treatment or otherwise. Gramee acknowledges that under applicable law the City may unilaterally establish and enforce reasonable customer service regulations that exceed or are not addressed by the standards established by the FCC or the standards currently established by the Interim Grant of Authority. Gramee will provide at minimum the same quality of customer service that Grantee is currently providing, but in all events no less than the quality of service required by the Imerim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, and any other applicable City ordinances and applicable FCC regulations. As 32 evidence of and to assist in compliance with such commitmeN, the City and GraNee agree as follows: On an annual basis GraNee will provide the City with historical expenditure information and staffing levels on customer service related matters; the customer service standards currently used; its materials, if any, on same as used by its customer service representatives; and its procedures and forms used to measure compliance with applicable customer service standards. GraNee will provide such other information as the City reasonably requests relating to customer service matters. E. Signal Quality. The following shall apply to GraNee's implemeNation of and compliance with the rules and regulations relating to cable television technical standards for signal quality adopted by the FCC in MM Dockets 91-169 and 85-38 on February 13, 1992 and subsequent amendments thereto: All testing for compliance with the FCC technical standards shall be done by a person with the necessary expertise and substantial experience in cable television matters. Upon request, GraNee shall provide the City with the written report of such testing. GraNee shall establish the following procedures for resolving complains from subscribers about the quality of the television signal delivered to them: All complains shall go initially to the manager of GraNee's local office. All matters not resolved by the manager shall at Grantee's or the subscriber's option be referred to City for attempted resolution. All matters not resolved at that step shall be referred to the FCC for it to resolve. 4. GraNee shall annually notify its subscribers of the preceding. Upon request by the City, Grantee at its expense will test the system in areas or at subscriber locations specified by City where there are appareN problems and provide City with the written report of such testing. If the test shows a non-compliance with such standards, Grantee will bring the system into compliance with such standards within 180 days. F. This Section is left blank. G. Validity of Interim Grant of Authority. Grantee accepts and agrees to be bound by the terms and conditions of the City Charter, Chapter 8 "Cable Television" of the Code of Ordinances of the City of DeNon, Texas, the INerim Grant of Authority and all other 33 ordinances applicable to its operation. Gramee does not contend that any provision of the Imerim Gram of Authority is unlawful or unenforceable, nor is it aware of any other ordinance or any provision in the City Charter which it comends is unlawful or unenforceable. The City acknowledges that the Imerim Gram of Authority is in full force and effect. H. Service and Equipmem for Public Facilities. Gramee will provide the "basic service" and "cable programming services" tiers of Cable Service, including installation and service and converter boxes, without charge to public facilities as required by the Imerim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, Texas, or any other applicable city ordinance, except that such service is limited to (a) City, school, county, state and Federal buildings located within 5,000 feet of Gramee's cable system; (b) PlO office, Municipal Building, 215 E. McKinney; (c) Demon Police Departmem, 601 E. Hickory; (d) Demon Fire Departmem, Central Fire Station, 332 East Hickory; and (e) Utility Service Cemer, 901 Texas Street. The terms of this section will be activated when the terms in Part II, Section III (Compliance Requiremems) are met. In addition, at the City's request Gramee will provide to the public facilities idemified in the Imerim Gram of Authority or other applicable city ordinances the highest level of installation and service without charge as it provides to any other community in the Dallas-Fort Worth Metroplex area. If any service or equipmem for public facilities provided pursuant to subsections (1) and (2) above exceeds the requiremem of the Imerim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, Texas, or other applicable city ordinance, Grantee will not pass through the costs as so-called "external costs" or as new grant requirements, except that Grantee may pass through the cost of such services under subsection (2) above that exceeds the requiremems of the Imerim Gram of Authority or other applicable city ordinance to the extent that cost exceeds $2,500 per year in the City of Denton. I. EEO Matters. Grantee agrees to faithfully adhere to all applicable federal, state and city laws, rules and regulations relating to non-discrimination, equal employmem and affirmative action. J. Access to Records. The records and reports of the grantee which are to be submitted to the City or otherwise made available for the City (such as for inspection by the City) pursuam to the Imerim Gram of Authority or other ordinance or charter provision of the City shall include records maimained by Gramee and its affiliates to the extem necessary for the City to discharge its responsibilities under the Imerim Gram of Authority, Chapter 8 "Cable 34 Television" of the Code of Ordinances of the City of Demon, Texas, FCC rules or state or local law, or to insure compliance with the Interim Grant of Authority or this Agreement. K. Interim Grant of Authority Requirement. Gramee will give the City 60 days notice in writing prior to allowing any telecommunications entity other than Grantee to use or lease its facilities (other than towers) in the City or capacity thereon or to amending any agreement with such an entity. No such arrangements or uses are presently in existence except as have been disclosed. "Telecommunications emity" means any entity subject to the jurisdiction of or regulated by the Federal Communications Commission (such as under the Communications Act of 1934 as amended) or the Texas Public Utility Commission or their successors, including telephone, alternative access and cable companies. Gramee will provide the City with such documents relating to the foregoing as the City may reasonably request, including copies of the agreemems. Gramee will give the City 60 days notice in writing prior to providing telecommunications services within the City or making its facilities (other than towers) available to others for that purpose. "Telecommunications services" means conventional telephone services, such as alternative access service which connect user locations and connect users to long distance companies. Nothing herein shall expand or modify any restrictions or limitations under the Imerim Gram of Authority or applicable law on use for telecommunication purposes of the facilities being acquired by Grantee. L. This Section is left blank. M. Other Matters. In the event of any conflict between the terms of this Interim Grant of Authority, Chapter 8 of the Code of Ordinances of the City of Demon, Texas, the City Charter, or any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. Gramee will join the City in obtaining from the FCC any waivers from time to time necessary to effectuate the provisions of this Interim Grant of Authority. 3. This Section is left blank. 4. This Section is left blank. 35 The term "affiliate" means any individual, partnership, association, joint stock company, trust, corporation, or other person or entity who owns or comrols, or is owned or comrolled by, or is under common ownership or control with the entity in question. 6. This Section is left blank. This Section is left blank. Other Provisions. 1. Grantee will promptly, but no later than twelve months from the effective date of the ordinance approving the Interim Grant of Authority to Gramee, provide the capability for insertion of video programming and other video, voice and data messages into the cable system at the poims in the City required under Section VI (b)(6) of Part I of the Imerim Gram of Authority and will comply in all respects with that section of the Interim Grant of Authority. The terms of this section will be activated when the terms in Part II, Section III (Compliance Requiremems) are met. 2. This Section is left blank. Upon request of the City, Gramee will collect from subscribers and pay to the City a momhly amoum of no more than $1.00 for each subscriber within the City limits for the purpose of assisting in financing local access activities. Such charge shall be set out as a separate line item on the subscriber's bill and shall not be deemed a paymem for basic service but a pass-through of an access and government programming fee. The charge will not be part of revenue for purposes of calculating the franchise fee. Advamex will remit the money to the City monthly. 4. This Section is left blank. This Section is left blank. This Section is left blank. 36 INTERIM GRANT OF AUTHORITY PART iii. This Part iii relates to the Interim Grant of Authority granted by the City of Denton ("City") in Part i of this imerim Grant of Authority, as amended and supplememed by Part ii of this Interim Grant of Authority. The foregoing Part i and Part ii and this Part iii are hereinafter referred to collectively as the "Interim Grant of Authority." Covenants Binding: The promises, covenants, and conditions contained herein inure to the benefit of the City and are binding on Gramee. 2. This Section is left blank. 3. This Section is left blank. Customer Service. Grantee will comply with the customer service and consumer protection provisions set forth in "Part iii, Exhibit A." 5. This Section is left blank. Validity of Interim Grant of Authority. Grantee accepts and agrees to be bound by the terms and conditions of the City Charter, the imerim Gram of Authority and all ordinances applicable to Grantee's operations. Grantee does not contend that any provision of the imerim Gram of Authority is unlawful or unenforceable, nor are they aware of any ordinance or any provision in the City Charter which they comend is unlawful or unenforceable. The City acknowledges that the imerim Gram of Authority is in full force and effect. Interim Grant of Authority for Cable Only. Grantee acknowledges that the Interim Gram of Authority is grained solely for the provision of Cable Service including services described in Section 12. 8. This Section is left blank. Access to Records: The records and reports of the Grantee which are to be submitted to the City or otherwise made available for the City (such as for inspection by the City) pursuant to the imerim Gram of Authority or other ordinance or charter provisions of the City shall include records maimained by Grantee and its Affiliates to the extent necessary for the City to discharge its responsibilities under the Interim Grant of Authority, FCC rules or state or local law, or to insure compliance with this Interim Grant of Authority. 10. This Section is left blank. 11. This Section is left blank. 37 12. 13. 14. 15. 16. Cable Modem, High-Speed Data and Imemet Services. The Federal Telecommunications Act of 1996 modified the definition of"cable services" in the Federal Cable Act (Title VI of the Communications Act of 1934, 47 USC Section 115 and following). The change addresses cable companies' ability to provide Enhanced, Advanced Cable Services over a Cable System as a cable service (and not as a telephone service, with accompanying telephone regulation.) Gramee imends to provide Enhanced, Advanced Cable Services where economically feasible. 12.1 To remove any uncertainty on Grantee's authority to provide Enhanced, Advanced Cable Services the parties agree that Grantee has the authority to provide Enhanced, Advanced Cable Services under the Imerim Gram of Authority and that the revenues therefrom shall be included in gross revenues for the purpose of computing and paying cable franchise fees. 12.2 If Gramee provides any Enhanced, Advanced Cable Services to residemial subscribers in the areas the Grantee serves, then without any initial or ongoing charge it shall provide the City cable modems and associated access to the Internet with a speed of up to 250 kbs. Such modems and service shall be provided to each City library and to three (3) additional locations specified by the City in City buildings in areas the Gramee serves. This Section is left blank. This Section is left blank. Frequency of Rate Increases. Grantee will not file a submission to increase its rates for basic cable service, equipmem, or service calls regulated by the City more than once in each calendar year. Other Matters. 16.1 Conflict: In the event of any conflict between the terms of Parts I, II, and III this Interim Grant of Authority, Part II of this Interim Grant of Authority (including exhibits thereto) shall prevail over Part I, and Part III of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Parts I and II. In the event of any conflict between the terms of this Imerim Gram of Authority and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. 16.2 Waivers: The Gramee will join the City in obtaining from the FCC any waivers or other relief from time to time necessary to effectuate the provisions of this Imerim Gram of Authority. 38 17. 16.3 This Section is left blank. 16.3.1 This Section is left blank. 16.3.2 This Section is left blank. 16.4 This Section is left blank. 16.5 Venue and Choice of Law: Venue of any suit under or arising out of this Interim Grant of Authority shall be exclusively in Denton County, Texas or in the United States District Court for the Northern District of Texas. This Imerim Gram of Authority shall be construed in accordance with the laws of the State of Texas. 16.6 Treatment of Liquidated Damages: Grantee acknowledges and agrees that liquidated damages under this Imerim Gram of Authority (including its exhibits) do not constitute franchise fees, do not reduce the amoums otherwise payable as franchise fees, and will not be passed through to subscribers. 16.7 This Section is left blank. 16.8 This Section is left blank. 16.9 Rate Orders: Unless a final order of the FCC (affirmed on appeal if an appeal is taken) determines that franchise authority rate orders are automatically stayed by the filing of an appeal to the FCC, Grantee will implemem each rate order adopted by the City unless and umil Gramee obtains an order of the FCC or a court of competent jurisdiction staying the effectiveness of the rate order. Grantee will reimburse all attorneys fees and other expenses incurred by the City as a result of a violation of this Section 16.9. 16.10 Franchise Fee Calculation: Gramee will comply with the decision of the United States Court of Appeals for the Fifth Circuit in City of Dallas v FCC, 118 F3d 393 (1997). 16.10.1 Gramee will pay the additional franchise fees due under the Fifth Circuit decision with interest and without pass- through to subscribers for the time period from September 1997 forward. 16.10.2 This Section is left blank. Institutional Network: Grantee shall provide, construct, operate and maintain an Institutional Network (excluding coders/decoders, imerface and other terminal 39 equipment which will be supplied by Users) that will provide the City and other I- NET Users with Institutional Network Services. The I-NET shall be as set forth below. Unless the City agrees otherwise in writing, the I-NET, including the individual fiber optic fibers constituting all or a portion of it, shall be owned and maintained by Grantee but provided for the exclusive use of the City and other i- NET Users and shall be provided without any charge to the City or I-NET Users. The terms of this section will be activated when the terms in Part iii, Section 23 (Compliance Requirements) are met. 17.1 This Section is left blank. 17.2 Grantee shall install and terminate additional fiber optic pairs ("incremental I-NET Fiber") in Grantee's future new and replacement fiber optic installations for use as an I-NET as follows. The terms of this section will be activated when the terms in Part iii, Section 23 (Compliance Requirements) are met. 17.2.1 17.2.2 17.2.3 17.2.4 17.2.5 City will inform Grantee in writing from time to time of the additional facilities it would like to have served by an I-NET. Grantee will use such information in its plans for future fiber installations, where (for example) one routing will pass a facility City would like to have served and another (of comparable cost) would not. By January 31 of each year Grantee will provide City with its conceptual plans for new and replacement fiber optic construction for that calendar year. Grantee will also provide City from time to time during the year with written notice of conceptual plans for any additional fiber optic construction during that year (or January of the following year). Such notice shall be provided as soon as is feasible. Upon written request by City, Grantee will provide City with a conceptual cost estimate (and other information City may reasonably require) of installing incremental I-Net Fiber along all or a portion of the routes that are a part of such conceptual plans. Such estimates shall be provided as soon as possible after request by City in order that City may have time to obtain approval (such as from its legislative body) to install such incremental I-Net Fiber. As to any route where City has requested a conceptual cost estimate, Grantee shall provide City with the final cost of installing incremental I-Net Fiber (and such other information as City may reasonably request) as soon as Grantee's design of the fiber for 40 such route is reasonably complete. City will have 60 days after receipt of the final cost figure to notify Grantee to install Incremental I-NET Fiber. 17.2.6 The cost of installing Incremental I-NET Fiber shall be computed on an incremental basis, meaning the difference in cost to Grantee of constructing and installing fiber on a given route (a) with, and (b) without, the Incremental I-NET Fiber. 17.2.7 Grantee shall be reimbursed by City for the cost of installing I- NET fibers under this Section 17.2 computed as set forth in Section 17.2.6. 17.3 I-NET Maintenance. Grantee shall provide I-NET users with a reliable level of service, repair and maintenance that at a minimum, meets the following performance standards. The terms of this section will be activated when the terms in Part III, Section 23 (Compliance Requirements) are met. 17.4 17.3.1 Grantee shall maintain a minimum of 99.5 percent service availability to I-NET Users measured over a period of one year. 17.3.2 Grantee shall respond to repair requests from an I-NET User for circuits identified as critical pursuant to Section 17.3.4 within 2 (two) hours of the request. Grantee shall respond to other repair requests within four (4) hours of the request. 17.3.3 Grantee shall provide ongoing maintenance at its discretion, as it deems necessary. Grantee shall provide at least one-week advance notice to any affected I-NET User of any maintenance requiring temporary interruption of services, except in emergency situations. 17.3.4 Grantee and the City shall develop a mutually agreeable priority listing of critical circuits and their terminal locations. When notifying Grantee of service complaints, an I-NET User shall identify critical circuits requiring priority repair. Grantee shall escalate repair of critical circuits to the extent reasonable under the circumstances. Definitions. 17.4.1 Institutional Network or 1-NET means the fiber optic communications network described in Section 17 and Schedule 17 to be constructed and operated by Grantee for the provision to I- NET Users (but not Cable Service subscribers) of Institutional Network Services. 41 17.4.2 Institutional Network Services means the provision of usable bandwidth capacity to I-NET Users through fiber optic lines for applications including but not limited to two-way dedicated voice, data, video and telephony channels connecting and interconnecting facilities owned, leased or used by the City, schools, counties, road commissions or other units of state or local government. Other applications include but are not limited to computerized traffic control systems for coordinated traffic control on an area-wide basis; Supervisory Control and Data Acquisition (SCADA) systems for municipally owned water, sewer, gas and electric systems (including street lighting systems); interconnection of facilities serving police, fire and other public safety systems, video arraignment facilities for local courts; interconnection of government buildings for the two or one-way interchange of video signals; and local area networks or wide-area networks connecting governmental buildings, such as for GIS (Geographical Informational Systems) purposes. 17.4.3 1-NET User means and is limited to the City and any school or unit of state or local government designated by the City to receive Institutional Network Services under this Interim Grant of Authority. 18. HDTV: Broadcast and cable channels are likely to convert in whole or in part to an HDTV (high definition television) format within the next few years, with channels likely being delivered in both HDTV and conventional analog formats during a transition period. The following provisions address the ability of the City to acquire additional PEG Channels such that one or more Users may have their signals simultaneously delivered by the Cable System in both an HDTV and conventional analog 6 MHz NTSC format for the transition period, and provide funds for Users to convert to an HDTV format. 18.1 Reports: Grantee shall provide quarterly reports to City on its plans and progress for HDTV conversion, including the number of channels to be converted, date, equipment changes, formats to be used and other information reasonably necessary for the City to be able to plan an appropriate and potentially concurrent conversion of PEG Channels and facilities to HDTV format. 18.2 Interim Grant of Authority: After the date when Grantee provides at least fifty (50) channels in one or more of several high definition television (or successor) formats, as such formats may from time to time be adopted or in effect ("HDTV Format"), then upon request from City, Grantee shall provide a Capital Facilities grant to City sufficient for Users to convert all their facilities and equipment (including but not limited to studios, vans, 42 19. video, audio, lighting, comrol, storage and editing equipmem) to the HDTV Format selected by City but with the amount of such grant not to exceed 30¢ per customer per momh when amortized over Company's subscribers as of the end of the calendar quarter preceding the date when the grant is made, using straight line amortization without interest for the lesser of five (5) years or the remaining term of the Imerim Gram of Authority. City shall allocate the gram among Users for such purpose as City deems is in the public imerest. Gramee shall modify the cable system whereby Gramee receives PEG signals from each User (for redistribution on its Cable System) so as to be capable of receiving and accepting the User's signals. City shall co-ordinate with Grantee to ensure that the HDTV Format selected by City is compatible with the format employed by Grantee. 18.3 Temporary_ Additional PEG Channels: After the date when Grantee provides at least fifty (50) channels in HDTV Format, City may from time to time request, and Grantee shall provide, one additional PEG Channel so as to allow, to the extent deemed appropriate by City, PEG Channel simulcasting in both 6 MHz analog NTSC format and in an HDTV Format. Gramee need no longer provide the additional PEG Channel described in the preceding semence when Gramee no longer provides any channel of programming on the Cable System in 6 MHz NTSC analog format. 18.4 Allocation of PEG Channels: As of the effective date of this Interim Gram of Authority, City may allocate and reallocate PEG Channels as follows: City may at any time on six (6) momhs notice to Gramee allocate or reallocate the usage of the PEG Channels among and between differem uses and Users. This expressly may include City removing a User or PEG Channel, replacing a User or PEG Channel, requiring several differem persons to share or joimly use a given PEG Channel or conversely allowing one or more persons curremly sharing such a channel to have a channel on which they are the sole User. Leased Access and PEG Channels: The need for a PEG Channel can be removed by Gramee providing the User designated by City of such currem or prospective PEG Channel with an otherwise idemical leased access channel, so long as the leased access rate for such User is One Dollar ($1.00) per year. In the evem the preceding semence is exercised it shall be applied first to educational channels and then to public channels. If applied to such channels the channel number on which they are carried shall not be changed and such channels shall be included in the basic tier of service and shall be listed in Company's program guide or comparable listing with an appropriate description, such as "City of Demon Channel" or "University of North Texas Channel." The need for a PEG Channel is removed only so long as the User in question in fact is provided with such leased access channel. 43 20. Transfer. City consent in advance shall be required for a transfer of control of Grantee, which shall include, but is not limited to, any of the following: 20.1 Any change in limited partnership interests, non-managing limited liability company interests, or non voting stock representing thirty percent or more of the equity interests in the entity in question. 20.2 Any option, right of conversion or similar right to acquire interests constituting control without substantial additional consideration (such as compared to consideration previously provided). 20.3 Any change in the effective control of Company including that described in 47 C.F.R. § 76.501 and following (including the notes thereto but excluding footnote 2f) as in effect on the date of this Interim Grant of Authority. 20.4 This Section is left blank. 20.5 This Section is left blank. 20.6 This Section is left blank. 21. This Section is left blank. 22. Definitions. The following definitions shall apply for the purpose of this Part iii. and its Exhibits. 22.1 Affiliate means any individual, partnership, association, joint stock company, limited liability company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with the entity in question. 22.2 Capital Facilities means PEG Channel and I-NET related facilities and equipment including fiber lines, studios, production facilities, vans and cameras or other property having a useful life of more than one year, as well as any expenditures which increase or add to the value of the facilities or equipment, adapt the facilities or equipment to new or different uses, or maintain, restore, extend or prolong the useful life of such facilities or equipment. 22.3 Cable Service means 22.3.1 The one-way transmission to all subscribers of (i) Video Programming, or (ii) other programming services, by which is 44 22.4 22.5 22.5 22.6 22.7 22.8 22.9 meant information which Grantee makes available to all subscribers generally, such as digital cable radio service, and 22.3.2 Subscriber interaction, if any, including but not limited to that which is used for the selection or use of such Video Programming or other programming services, selecting from various on-screen options, use of Enhanced, Advanced Cable Services, game channels, interactive services, downloading programs or data access, or ordering merchandise, and 22.3.3 Institutional Network Services. Cable System or System means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Services to multiple subscribers within the authorized area, but such term does not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right of way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such a facility shall be considered a Cable System (other than for purposes of Section 621 (c) of such Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (iv) an open video system that complies with Section 653 of Title VI of the Communications Act of 1934, as amended; or (v) any facilities of any electric utility used solely for operating its electric utility system. Enhanced, Advanced Cable Services means enhanced services, information services, Intemet protocol (IP) telephony, high speed data service, Internet access and Internet service (such as that of an Internet service provider). FCC means the Federal Communications Commission. I-NET User has the meaning set forth in Section 17.4.3. Institutional Network or 1-NET has the meaning set forth in Section 17.4.1. Institutional Network Services has the meaning set forth in Section 17.4.2. PEG Channels means the public channels, educational channels and government channels provided by Grantee on the cable system under this 45 Imerim Gram of Authority, or applicable ordinance, and shall include leased access channels provided pursuam to Section 19 herein. 22.10 User means a person authorized to operate or use a PEG Channel (or a leased access channel provided in lieu of a PEG Channel under Section 19) or the I-NET, and shall include City. If several persons share the operation of a PEG Channel each person shall be a separate User. 22.11 Video Programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. 23. Compliance Requiremems: When Gramee's cable subscribers exceed Five Thousand (5000) within the City of Demon, the Gramee will be required to comply with the below listed sections, or parts of sections, upon request from the City. For the purposes of this section, cable subscriber shall mean a person lawfully receiving cable service from the Gramee. Where the Gramee bills on a "bulk basis," each individual household, office or other emity lawfully receiving the service shall be considered a subscriber, regardless of whether or not they are billed directly by the Gramee. Part III, Section 17, Institutional Network. Part III, Section 17.2, 17.2.1, 17.2.2, 17.2.3, 17.2.4, 17.2.5, 17.2.6, and 17.2.7. Part III, Section 17.3, I-NET Maintenance Part III, Exhibit A, (4) 24. This Section is left blank. 25. Fees and Costs. Grantee will reimburse the City all its costs in association with the grant process for this Interim Grant of Authority, as set forth in Part I, Section XXIX of this Interim Grant of Authority, mot to exceed $1,500. In addition, the Grantee will reimburse the City its expenses in connection with a replacement of this Interim Grant of Authority with a more permanent agreement, including publication costs and fees of consultants and attorneys as set forth in Part I, Section XXIX of this Interim Grant of Authority. 26. Approval and Acceptance. In accordance with Section 13.02 of the City Charter of the City of Demon, this ordinance shall become effective twenty-one (21) days after final approval, if, before that date, Company shall give its written acceptance of this ordinance by signing as provided below; and provided that, after final approval and before the expiration of twenty-one (21) days, the full text of this ordinance shall be published once each week for two (2) consecutive weeks in the official newspaper of the City, the expense of which shall be borne by Grantee. 26.1 Gramee, for itself, its successors and assigns hereby accepts this ordinance and agrees to be bound by all of its terms and provisions. 46 PASSED AND APPROVED on first reading, this the __ day of , 2003. 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: GRANTEE Denton Telecom Partners I, LP BY: ITS: 47 PART iii. EXHIBIT A. CUSTOMER SERVICE AND CONSUMER PROTECTION Customer Service Standards: Grantee shall at all times comply with the more stringent of the customer service and consumer protection provisions of this Part iii, Exhibit A, the imerim Gram of Authority and the FCC. This requiremem is in addition to the specific provisions of subsequent sections set forth below. 1.1 Grantee shall continue to comply with the National Cable Television Association's On-Time Customer Service Guarantee, a copy of which is attached as Part iii, Exhibit B 1. The guarantee promises on-time service calls or the customer receives $20.00, and on-time installation calls or the customer receives a free installation. The $20.00 may be in the form of a credit. 1.2 Gramee may provide its Customer Bill of Rights (if any) to its subscribers in the City. City Monitoring: In addition to free outlets, free cable service or services otherwise required by the imerim Gram of Authority, Gramee shall provide one service outlet (which shall be at a Robson Ranch office, unless otherwise specified by City) that shall receive without charge all programming (and any other Cable Services) provided by Gramee, including services of a premium, pay per view or other nature. Such service shall be provided in such a manner that City may monitor the programming and use of the cable system for compliance with the Interim Grant of Authority, this Exhibit, FCC technical standards, and applicable law. The services provided pursuam to this Section 2 shall be in a secure office location and not in a location open to public viewing. Scrambling/Blocking: Gramee shall at all times scramble both the audio and video portions of all channels with predominately adult oriemed programming. 3.1 Upon request by a subscriber, Gramee shall emirely block such subscriber from receiving both the audio and video portion of any channel with predominantly adult oriented programming with devices such as a notch filter which prevent the frequencies containing a specific channel or channels from being transmitted imo the subscriber's premises. Pay Per View: Subscribers shall be given the options of (a) not having pay per view or per program service available at all or (b) only having such service provided upon the subscriber providing a security number selected by an adult 48 representative of the subscriber. The terms of this section will be activated when the terms in Part III, Section 23 (Compliance Requiremems) are met. Notification: Grantee shall provide written information on at least each of the following matters (a) at the time of installation or reinstallation of service, (b) annually to all subscribers, and (c) at any time upon request of a subscriber or the City. The information shall be dated with the priming, revision, or effective date. 5.1 Products and services offered. 5.2 Prices (rates) and options for Cable Services and conditions of subscription to Cable Service. Prices shall include those for programming, equipment rental, program guides, installation, disconnection, processing charges for late paymem and other fees charged by Company. 5.3 Installation and service maintenance policies. 5.4 Instructions on how to use Cable Services, including procedures and options for pay per view, premium channels and connection to a VCR. 5.5 Channel positions of programming carried on the cable system, including a listing specific to the City showing the channel names and numbers actually available to subscribers in the City. 5.6 Billing and complain procedures with a notice for the subscriber to initially contact Company with complaints and questions. 5.7 Applicable privacy requirements as set forth in the Interim Grant of Authority or provided for by law. 5.8 The availability of lockout devices and the ability to have a channel emirely blocked or trapped if required by law (Section 3.1). 5.9 The refunds and free service available for violations of Sections 10 and 12 and how to obtain same. 5.10 The procedure for resolving signal quality problems set forth in Section 20.2. 5.11 The office locations, free pick up and delivery options, telephone service availability and paymem locations described in Part I Section VIII. Notice of Changes: Subscribers and the City shall be notified of any changes in rates, Cable Services or channel positions as soon as possible through announcemems on the cable system or in writing. Company will notify City in advance of notifying subscribers and will make every effort to notify City forth- 49 o five (45) days in advance of a change. Unless a longer time period is required by applicable law or regulation, notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of Company and as soon as possible if not within the control of Company. In addition, Company shall notify subscribers and the City thirty (30) days in advance of any significant changes in the matters covered by the preceding Section 5. Notifications provided pursuant to this Section shall be dated with the printing, revision or effective date. Telephone Service Standards: 7.1 Company shall have a local or toll-free telephone number available for use by subscribers toll-free twenty-four (24) hours per day, seven (7) days per week. 7.2 The local or toll-free numbers shall be listed, with appropriate explanations, in the directory published by each local telephone company and in any significant directories published by others. 7.3 Trained Company Representatives shall be available to respond to subscriber telephone inquiries twenty-four (24) hours per day, seven (7) days per week. 7.3.1 As to video service matters, the term "Trained Company Representatives" shall mean employees of Company, or contractor, who have the authority and capability while speaking with a subscriber to, among other things, schedule service and installation calls. 7.3.2 This Section is left blank. 7.4 Under Normal Operating Conditions, telephone answer time by a Trained Company Representative, including wait time, shall not exceed thirty (30) seconds from when the connection is made. If the call needs to be transferred, the time to complete the transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. 7.5 Under Normal Operating Conditions, the subscriber shall receive a busy signal less than three percent (3%) of the time, measured on a quarterly basis. 8. Office/Home Delive _ry-Pick Up: 50 10. 8.1 Initially, Gramee shall do all the following: (i) maimain a business office within 18 miles of Robson Ranch, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on Gramee and its services, (ii) maimain a conveniemly located bill paymem office within Robson Ranch where subscribers may pay their bills as soon as a commercial business (such as a bank, drug store or convenience store) is open within Robson Ranch (iii) at no charge to subscribers, pick up and deliver to subscribers converter boxes, remotes and similar Gramee-provided customer premises equipmem (under normal operating conditions such deliveries and pickups shall occur within 48 hours of a subscriber request for same), and (iv) provide telephone customer service with live operators 24 hours per day, seven days per week. When Gramee has at least 5000 subscribers in the City of Demon, it shall maimain a business office within the City of DeNon, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on Company and its services. The office shall be open at least from 8:30 AM to 5:30 PM Monday through Friday. 8.1.1 This Section is left blank. Installation Standards: Under Normal Operating Conditions, installations located up to one hundred fifty (150) aerial feet from the existing distribution cable system shall be performed within seven (7) business days after an order has been placed no less than ninety-five percem (95%) of the time, measured on a quarterly basis. Installations/Service Calls: The following shall apply to subscribers (currem or new) requesting installations or service: 10.1 Installations calls shall be available at a minimum from 8:00 AM to 5:00 PM Monday through Friday, and service calls shall be available at a minimum from 8:00 AM to 5:00 PM Monday through Saturday. Company shall at the subscriber's option either (1) schedule the subscriber to be the first call of the day or last call of the day on a first come, first served basis, (2) schedule the appoimmem for a date certain on a "call to meet" basis where as the service technician finishes his/her prior task, the technician calls the subscriber and arranges to meet the subscriber shortly thereafter, or (3) establish an appoimmem window of no more than four (4) hours with the subscriber (or adult represemative of the subscriber) or another appointment window mutually agreed upon between the subscriber and Company. 10.2 Company shall respond to the request for service in accordance with the option selected by the subscriber. 51 10.3 Company shall not cancel an appointment with a subscriber after 5 PM on the business day prior to the scheduled appointment. 10.4 If Company's technician is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber shall promptly be contacted. The appointment shall be rescheduled, as necessary, at a time which is convenient for the subscriber. 10.5 In the event access to the subscriber's premises is not made available to Company's technician when the technician arrives during the established appointment window, the technician shall leave written notification stating the time of arrival and requesting that Company be contacted again to establish a new appointment window. 10.6 Notwithstanding the foregoing, if Company's technician or service representative telephones the subscriber during or prior to the appointment window and is advised that the technician will not be given access to the subscriber's premises during the appointment window, then the technician shall not be obliged to travel to the subscriber's premises or to leave the written notification referred to above, and the burden shall again be upon the subscriber (or adult representative of the subscriber) to contact Company to arrange for a new appointment. 10.7 Except as otherwise provided above, Company shall be deemed to have responded to a service or installation request under the provisions of this section when a technician arrives at the service location or is advised by telephone no access will be given. 10.8 Company's service technician or service representative shall take adequate time on each service call to address or correct the problem in question. 10.9 In the event that Company ceases to provide the NCTA On-Time Customer Service Guarantee (Part III, Exhibit B 1) a violation by Company of the provisions of this Section 10 shall automatically entitle the subscriber to one month of free basic service and (if currently purchased by the subscriber) one month of free cable programming service (as defined in 47 C.F.R. § 76.901). 10.10 Under Normal Operating Conditions, Company shall meet the standards of Section 10.1 through 10.3 no less than ninety-five percent (95%) of the time, measured on a quarterly basis. 11. Service Call Charges: No charge shall be made to the subscriber for any service call relating to Company owned and Company maintained equipment after the initial installation of Cable Service unless the problem giving rise to the service request can be demonstrated by Company to have been: 52 11.1 Caused by negligence or malicious destruction of cable equipment by the subscriber, or 11.2 A problem established as having been non-cable in origin. 12. Service Interruptions: 12.1 Under Normal Operating Conditions, Company shall meet the standards of Sections 12.2 and 12.4 no less than ninety-five percent (95%) of the time measured on a quarterly basis. 12.2 Under Normal Operating Conditions, Company shall begin working on a Service interruption promptly and in no event later than twenty-four (24) hours after the interruption becomes known to Company. 12.3 "Service Interruption" means the loss of picture or sound on one or more cable channels, affecting one or more subscribers. 12.4 Under Normal Operating Conditions, Company shall begin working on subscriber complaints involving impairment or degradation of signal quality (other than a Service interruption) promptly and in no event later than the next business day after the problem becomes known to Company. 12.5 Company shall be deemed to have begun work under the provisions of this section when a technician arrives at the service location. 12.6 Company shall provide affected subscribers, upon request by the City or the subscriber, with one day's free service (equivalent to the service they were receiving at the time of the interruption) for each day or portion thereof of Service Interruption. 13. Log of Complaints: Company shall maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in printed form, of a random sampling of all cable-related customer Complaints within the City that are referred to Company's Customer Care Group. Such log shall be in form and substance acceptable to the City and at minimum list the date and time of each such Complaint, identify the customer to the extent allowed by law, and describe the nature of the Complaint and when and what actions were taken by Company in response thereto. The log shall be organized by City. The log shall be kept at Company's office in or near the City for a period of at least two (2) years and shall be available for inspection during regular business hours by the City upon request. 14. Bills: Company shall comply with the following on Cable Service billing: 53 15. 16. 14.1 Bills shall be issued monthly to each subscriber with a balance due or change of service. 14.2 Bills shall be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic service, cable programming service, premium service charges and equipment charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates, credits, and late charges. 14.3 Each bill shall prominently display Company's local or toll-free telephone numbers available for use by subscribers. If a bill has more than one portion (for example, one portion that is kept by the customer and one portion that is sent to Company) the numbers shall prominently appear on the front side of the portion of the bill retained by the customer. 14.4 Company shall respond in writing to all written complaints from subscribers regarding billing matters within thirty (30) days. 14.5 Company shall not disconnect a subscriber for failure to pay legitimately contested charges during a billing dispute. However, during a billing dispute Company may disconnect a subscriber for failure to pay charges that are not contested. 14.6 The City shall be given thirty (30) days advance notice of any change in the format of bills. Refunds and Credits: Refund checks for Cable Service shall be issued promptly, but no later than either: 15.1 The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or 15.2 If service is terminated, 30 days after return of equipment owned by Company or at the time of the next billing cycle, whichever is earlier. 15.3 Credits for Cable Service shall be issued no later than the subscriber's next billing cycle following a determination that a credit is warranted. Late Payment for Cable Service. 16.1 Each bill shall specify on its face in a fashion emphasizing same (such as bold face type, underlined type or a larger font): "For payments received 16 days after due date, a $4.95 processing fee for late payment may be charged." 54 17. 16.2 No processing fees for late payment, however denominated, shall be added to a subscriber's bill less than sixteen (16) calendar days after the mailing of the bill to the subscriber. 16.3 No processing fees for late payment, however denominated, shall be added to a subscriber's bill by reason of delay in payment other than those described in this Section 16. All such charges shall be separately stated on the subscriber's bill and include the word "late" in the description of them. 16.4 There have been negotiations in connection with this Exhibit regarding the appropriate amount of fees that may be charged for late payment. The parties have agreed to withdraw this issue from consideration without prejudice to any claims and defenses. Disconnection 17.1 Company shall not disconnect a subscriber for failure to pay until at least twenty-six (26) days have elapsed after the due date for payment of the subscriber's bill and Company has provided at least ten (10) days written notice separate from the monthly bill to the subscriber prior to disconnection, specifying the effective date after which Cable Services are subject to disconnection. 17.2 Company may disconnect a subscriber at any time if Company in good faith believes that the subscriber has tampered with or abused Company's equipment, that there is a signal leakage problem (or other non- compliance with FCC rules or other standards which poses a risk to lives or property) on the subscriber's premises, or that the subscriber is or may be engaged in the theft of Cable Services. 17.3 Company shall promptly disconnect any subscriber who so requests disconnection. No period of notice prior to requested termination of service shall be required of subscribers by Company. No charge shall be imposed upon the subscriber for or related to disconnection or for any Cable Service delivered after the effective date of the disconnect request (unless there is a delay in returning Company equipment). If the subscriber fails to specify an effective date for disconnection, the effective date shall be deemed to be the day following the date the disconnect request is received by Company provided that Company equipment has been returned. 17.4 The term "disconnect" shall include customers who elect to cease receiving Cable Service from Company and to receive Cable Service or other multi-channel video service from another person or entity. 55 18. 19. Truth in Advertising: Company's bills, advertising and communications to its current or potential subscribers shall be truthful, shall not contain any false or misleading statement and shall comply with the Texas Deceptive Trade Practices- Consumer Protection Act, TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63. (Vernon 1987). For the purposes of the preceding, a statement is false or misleading if it contains an untrue statement of any material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. Reports: Company shall provide reports to the City monthly (by the 15th business day of the following month) and quarterly (by the 15th business day of the following quarter) as follows: 19.1 The reports shall include the following forms currently used by Advantex or otherwise in form and substance acceptable to the City, showing on a consistent basis, fairly applied, Company's compliance with customer service standards. 19.1.1 System Statistics Report, Part III, Exhibit B2, which covers customer service matters. 19.1.2 Monthly Report of Service Calls by Reason, Part III, Exhibit B3, which shall include an explanation of the categories of reported reasons. 19.1.3 Monthly Outage Summary by Interim Grant of Authority, Part III, Exhibit B4. 19.1.4 Monthly Service Call Availability Analysis and Installation Call Availability Analysis, Part iii, Exhibit B5. 19.1.5 Monthly Customer Call Sample Report, Part iii, Exhibit B6, both by City and on an overall basis, showing the results of a random sampling of customer complaints referred to Company's Customer Care Group. 19.1.6 Monthly Call Center Performance Report, Part III, Exhibit B7 (excluding the 2% "assumed" adjustment). 19.2 Such reports shall show Company's performance excluding periods that were not Normal Operating Conditions ("Abnormal Operating Conditions") and if Company contends any such conditions occurred during the period in question, it shall also describe the nature and extent of Abnormal Operating Conditions and show Company's performance both including and excluding the time periods Company contends such conditions were in effect. 56 19.3 At the City's request Company will provide additional information and existing reports reasonably related to the measurement and evaluation of Company's compliance with the customer service requirements of the Imerim Gram of Authority, and this Exhibit A. 19.4 Reports of installations/service calls (Section 10) and service imerruptions (Section 12) shall report matters occurring within the City. Telephone reports may be for a larger area than the City if Company can demonstrate that it is, in fact, representative of the phone service provided within the City, such as where a call cemer receives calls from numerous municipalities with no ability to distinguish between or give preference to calls from one area or City over another. 19.5 The City, by itself or in combination with other municipalities, reserves the right to audit Company (or any Affiliate of Company) to verify the accuracy of the reports required under this Section 19. All records (including those of Affiliates) reasonably necessary to conduct the audit shall be made available at a convenient location in the Fort Worth area. If the audit discloses performance that is three (3) percemage poims worse than any of the standards of the referenced sections (such as compliance 92% of the time versus 95% of the time) Company shall pay the City's costs in connection with the audit within thirty (30) days of submission of an invoice. 20. FCC Technical Standards The following shall apply to Company's implementation of and compliance with the rules and regulations relating to cable television technical standards for signal quality, curremly set forth at 47 C.F.R. § 76.601 and following, and subsequem amendmems thereto: 20.1 Company shall notify the City in advance of testing for compliance with FCC standards. The City may have a representative present to observe such tests and may designate one location to be tested. Company shall provide the City with a report of testing for compliance with such standards upon written request (but not more than twice a year). Such report to City shall state, in pertinent part, that the person doing the testing has reviewed the applicable rules and regulations of the FCC, the industry standards and other materials referenced therein, and that such testing was done fairly and either shows full compliance with such rules and regulations or sets forth with specificity and in detail all areas of non- compliance, their actual or likely scope and causes, and Company's professional recommendation of the best corrective measures to immediately and permanently correct the non-compliance. 20.2 Company shall establish the following procedure for resolving complains from subscribers about the quality of the television signal delivered to 57 them: All complaints shall go initially to Company. All matters not resolved by Company shall at Company's or the subscriber's option be referred to the City for it to resolve. All matters not resolved by the City may be referred to the FCC for it to resolve. 20.3 The City at its expense (no more than twice per year, barring unusual circumstances) upon thirty (30) days written notice to Company may test the cable system for compliance with the FCC technical standards. Company shall cooperate in such tests and provide access to the cable system. Company shall reimburse the City for the full expense of any test, which shows a material non-compliance with such standards. 21. Liquidated Damages - Customer Service Calls: Company acknowledges that non- compliance with the customer service standards identified above will harm subscribers and the City and the amounts of actual damages will be difficult or impossible to ascertain. For the second calendar quarter of 2002 and thereafter, the City may therefore assess the following liquidated damages against Company for non-compliance with the customer service standards set forth in Sections 7.3, 7.4, 7.5, 9, 10.1, 10.2, 10.3, 10.10, 12.1, 12.2 and 12.4 (measured on a quarterly basis). Company acknowledges that the liquidated damages set forth below are a reasonable approximation of actual damages and that this Section 21 is intended to provide compensation and is not a penalty. 21.1 Telephone Standards. The damages for non-compliance with one or more of the standards in Sections 7.3, 7.4 and 7.5 during a calendar quarter are: 21.1.1 First non-compliance: $1.00 per subscriber. 21.1.2 Second non-compliance within three (3) consecutive calendar quarters: $2.00 per subscriber. 21.1.3 Third non-compliance within six (6) consecutive calendar quarters and (subject to Section 21.4) each subsequent non-compliance: $3.00 per subscriber. 21.2 Service and Installation Standards. The damages for non-compliance with one or more of the standards in Sections 9, 10.1, 10.2, 10.3, 10.10, 12.1, 12.2 and 12.4 during a calendar quarter are: 21.2.1 First non-compliance: $1.00 per subscriber. 21.2.2 Second non-compliance within three (3) consecutive calendar quarters: $2.00 per subscriber. 58 21.2.3 Third non-compliance within six (6) consecutive calendar quarters and (subject to Section 21.4) each subsequent non-compliance: $3.00 per subscriber. 21.3 Minimums. The liquidated damages for the first and each subsequent non- compliance under Section 21.1 or Section 21.2 shall be no less than $5,000, unless modified as provided in Section 21.4. 21.4 Effect of Extended Periods of Compliance. If Company complies with all of the standards identified in Sections 21.1 and 21.2 for eight consecutive calendar quarters, the damages for the first subsequent non-compliance with any of those standards will be the greater of 25¢ per subscriber or $3,000. 21.4.1 Following such a non-compliance the damages provided in Sections 21.1 and 21.2 will again be applicable so that the next non-compliance within four (4) consecutive calendar quarters will be subject to Sections 21.1.2 and/or 21.2.2. 21.5 An event of non-compliance will be taken into account in determining whether a later event of non-compliance is a second, third or subsequent event without regard to whether City has assessed liquidated damages or taken any other action with respect to the non-compliance. 21.6 Company shall report the number of subscribers within the City on the last day of the quarter by the 15th business day of the following quarter. 22. Liquidated Damages - Other: 22.1 Liquidated damages in the amount set forth in Section 21.1.1 (but not less than the amount set forth in Section 21.3) may be assessed for failure to timely submit the quarterly reports required by Section 19. 22.2 Liquidated damages may be assessed for violation of the provision of Section 26.4 for submission of reports within five (5) business days in the amount of $1,000 per day. 23. Procedure for Assessment of Liquidated Damages: The procedure for consideration and assessment of liquidated damages is as follows: 23.1 Liquidated damages shall be assessed by the City Manager or his or her designee. 23.2 Company may obtain a review of the assessment by the City Council by making a written request within ten (10) business days after receipt of notice in writing of the assessment and its basis. 59 23.3 Company shall have an opportunity to be heard at a meeting of the City Council or by a person designated by the Council as a hearing officer prior to action being taken by the Council. 23.4 The City Council may adopt additional procedures, including appoimmem of a City official or other person to act as a hearing officer. The Council's decision may be based upon the record of proceedings conducted by the hearing officer or a proposal for decision submitted by the hearing officer. 24. Paymem of Liquidated Damages: Liquidated damages shall be paid on or before the temh (10th) business day following assessmem or, if Company requests review by the City Council, on or before the temh (10th) business day following issuance of the Council's decision. 25. Ombudsman: Company will provide a senior employee (at the Vice Presidem or Director level) as director of governmem affairs and ombudsman reporting directly to a vice president of Company. The director of government affairs will have responsibility for working with the City to address problems that may arise under the Imerim Gram of Authority and shall be Company's ombudsman for both the City and subscribers. Company will give the City an opportunity to commem on the detailed job description of the director of governmem affairs before the position is filled. 26. City Liaison: Company shall provide problem solving liaison services for the City. The purpose of this service is to provide the City with direct access to supervisory level personnel who can obtain prompt action on customer service problems referred by the City to Company. This service shall include at least the following: 26.1 The personnel providing the service shall be located in Demon County. 26.2 The personnel providing the service shall have sufficiem authority and access to Company facilities and personnel in order to investigate and take appropriate remedial action without delay. 26.3 The City shall be given a special direct phone number to use (which may also be used by other cities, but which will not be made available to the general public) which will generally during normal business hours be answered by a live person and will provide immediate access to a person having the authority specified in the preceding section. 26.4 Company shall investigate (including an attempt to comact the subscriber) and respond to the City on each call, fax or written complaim or request by the end of the next business day and shall provide a written report within five (5) business days. 60 27. 26.5 Company shall give the City notice in writing of changes in the key contact personnel or material changes in procedures involved in providing this service. Definitions: For the purposes of this Exhibit A, the following definitions shall apply: 27.1 Cable Administrator means the person designated by City as having principle responsibility for cable matters. 27.2 Complaint means a telephone call or written communication from a customer notifying Company of a problem relating to Company's billing or billing practices, Company's equipment, picture quality, failure to receive one or more channels, a change in Company's practice or policy, Company advertising or other business practice, the conduct of a Company employee or contractor, or the failure of Company or a service representative to comply with customer service regulations. 27.3 Normal Operating Conditions means those service conditions which are within the control of Company. Those conditions which are not within the control of Company include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are within the control of Company include, but are not limited to, special promotions, pay-per-view events, rate increases, regular or seasonal demand periods, changes in the billing cycle, changes in the form of bills and other billing matters, changes in channel lineups or services that are within Company's control, and repairs, rebuilds, maintenance and upgrade of the cable system including computer software and hardware. 27.3.1 This Section left blank. 27.3.2 Labor Disputes. Employee strikes, slowdowns and walkouts of less than 30 days duration are not within the control of Company. 61 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 Airport and Transit Operations Jon Fortune, Assistant City Manager Questions concerning this item may be directed to Mark Nelson 349-7702 SUBJECT Consider adoption of an ordinance approving an amendmem to an Imerlocal Agreemem between the City of DeNon and University of North Texas dated November 5, 2002 to provide for bus services; and providing an effective date. BACKGROUND On November 5, 2002 the City and UNT emered imo an imerlocal agreemem to provide express shuttle bus service from certain apartment complexes demonstrating a high number of students. Included in the agreement was an amount to purchase used buses from The T, Ft. Worth's public transportation authority, and an additional $15,000 to restore and rehab the vehicles for short-term operation. As a result of scheduling problems on repaiming the six vehicles, actual costs of the restoration process exceeded the initial estimate by $8,974.44. The additional cost was driven primarily by the need to use overtime to ensure the vehicles were in operational condition by January 13, 2003, first day of service. UNT was invoiced for this fee earlier this year, however, it was determined that an amendment to the agreement was necessary as the agreement specifically stated an amount of $15,000. PRIOR ACTION/REVIEW LINK and UNT staff has reviewed and recommend the amendmem. UNT Legal Counsel and the City Attorney's office have reviewed the proposed amendmem. ESTIMATED SCHEDULE OF PROJECT The term of the original agreemem was for the period of January 13, 2003 to of August 31, 2005. FISCAL INFORMATION This amendmem will reimburse the City for $8,974.44 in wages and materials used in FY 2003 for improvements made to certain buses used for UNT motor carrier passenger service. EXHIBITS Ordinance Interlocal Agreement Respectfully submitted: Mark Nelson, Director Airport and Transit Operations ORDINANCE NO. AN ORDINANCE APPROVING AN AMENDMENT TO AN INTEI~OCAL AGREEMENT BETWEEN THE CITY OF DENTON AND UNIVERSITY OF NORTH TEXAS DATED NOVERMBER 5, 2002 TO PROVIDE FOR BUS SERVICES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the University of North Texas ("UNT") and the City of Denton have previously entered into an Interlocal Agreement dated November 5, 2002 (the "Interlocal Agreement") to provide motor carder passenger service for UNT students, staffand faculty;, and WHEREAS, the City and UNT desire to amend the Interlocal Agreement to provide for the payment of certain bus restoration costs in substantial the same form as the Amendment to Interlocal Agreement attached hereto and made a part hereof by reference (the "Amendment"); and WHEREAS, the City Council finds that the Amendment is in the public interest; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Amendment is hereby approved. The City Manager, or his designee, is hereby authorized to execute the Amendment on behalf of the City. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEG_AI/FORM: EULINE BROCK, MAYOR AMENDMENT TO INTERLOCAL AGREEMENT THIS AGREEMENT is made as of the date set forth below by and between the City of Denton (the "City") and University of North Texas (hereinafter referred to as "UNT"). WHEREAS, on November 5, 2002 the City and UNT entered into that certain Interlocal Agreement to provide bus services (the "Interlocal Agreement"); and WHEREAS, pursuant to the Inteflocal Agreement UNT was to pay for the restoration of six used Flxible buses in an amount not to exceed $15,000.00; and WHEREAS, the actual costs of restoration have exceeded that amount by the sum of $8,974.44 due to increased restoration costs because the original estimates were incomplete and due to the increased time to perform necessary services stemming from an extended painting schedule; and WHEREAS, the parties recognize that these increased costs of restoration should be properly born by UNT; and WHEREAS, the parties desire to amend the Interlocal Agreement to reflect UNT's responsibility for payment of such increased restoration costs; and NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Notwithstanding any provision in Section 1.0 of the Interlocal Agreement to the contrary UNT is responsible for payment to the City of the sum of $8,974.44 which is associated with the cost of restoration of the six Flxible buses. Such sum shall be paid to the City no later than 30 days after the effective date of this amendment. 2. All other terms and conditions contained in the Interlocal Agreement that are not expressly amended or changed by this instrument shall remain in full force and effect. SIGNED as of the day of . , 2003 (the "Effective Date"). C1TY OF DENTON, TEXAS By: Michael A. Conduff, City Manager C:,~OWS~Mm-~GR U~ ~®.~ Page 1 of 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: UNIVERSITY OF NORTH TEXAS 'Phillip C. Diebel Vice President for Finance and Business Affairs ATTEST: APPROVED AS TO FORM: DIRECTOR OF CONTRACTS ADMINISTRATION BY: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 7, 2003 Airport and Transit Operations Jon Fortune, Assistant City Manager Questions concerning this item may be directed to Mark Nelson 349-7702 SUBJECT Consider adoption of an ordinance authorizing the Mayor to execute an imerlocal Agreemem between the City of DeNon and University of North Texas to provide for motor carrier passenger service for UNT studems, staff and faculty; and providing for an effective date. BACKGROUND On March 6, 2001 Council approved Ordinance 2001-100 providing for a multi-year imerlocal agreement between UNT and the City of Denton to provide public motor carrier transportation services to UNT studems staff and faculty. The number of riders during the first year of this program far exceeded both UNT and LiNK's expectations. To ensure the continued success and future growth of the program it was agreed that the multi- year contract be renegotiated to a one-year contract to address the implementation of additional services and/or the potemial for expanded route service in the coming year. The agreemem for FY 03 included a one-year renegotiated term that provides for a rate of $0.60 per trip based on a total of 33,300 trips for August 15, 2002 to August 14, 2003. The rate included a discount in the amoum of twenty percem (20%) below the base fare of $0.75. This discoum is based on the volume of rides generated; other transit authorities offer similar agreements to corporations and large employers purchasing group fares. This fare is the same as the fare being proposed with TWU. The agreement for this year will be retroactive to August 15, 2003 and will continue through August 14, 2004 to coincide with the full service imerlocal agreemem for campus bus service. The agreemem for FY 04 will include a price increase based on the LiNK fare increase to $1.00 that went into effect on October 1, 2003. The first payment of two payments will be prorated to address rides received by studem, staff and faculty at the previous rate of $0.60 per ride. The new discoumed rate per ride would be $0.80 and is based on a total of 33,500 rides for the term of the agreement. PRIOR ACTION/REVIEW Staff recommends approval of the attached renegotiated interlocal agreement between the City of DeNon and UNT to provide for motor carrier service for UNT studems, staff, and faculty on the LINK. ESTIMATED SCHEDULE OF PROJECT The term of this agreement will be for twelve through August 14, 2004. (12) months retroactive to August 15, 2003 FISCAL INFORMATION This agreement will generate a total of $25,996 for transit services that will be provided to UNT 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 UNIVERSITY OF NORTH TEXAS TO PROVIDE FOR OFF-CAMPUS MOTOR CARRIER PASSENGER SERVICE FOR UNT STUDENTS, STAFF AND FACULTY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the University of North Texas ("UNT") has requested that the City extend the existing off-campus bus service for an additional year to provide to its students, staff and faculty motor carder passenger service based on an annual fee; and WHEREAS, the City Council finds that such service is in the public interest; NOW, THEREFORE; 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 Interlocal Agreement between the City of Denton mad UNT to provide for off-campus motor carrier passenger service for UNT students, staff, and faculty, in substantially the form of the copy of the agreement which is 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. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HE~T~CITY ATTORNEY BY: ~k._J ./ · C:\W1NDOWS\TEMP\3-AGR UNT Interlocal 04.DOC INTERLOCAL AGREEMENT THIS AGREEMENT is made and entered into to be effective as of the 15th day of August, 2003, by and between the CITY OF DENTON, a Texas municipal corporation, hereinafter referred to as CITY and UNIVERSITY OF NORTH TEXAS, a Texas State University, hereinafter referred to as UNT. 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 UNT entered into that certain Interlocal Agreement dated August 20, 2002 to provide for off-campus passenger motor cartier service for its students, staff and faculty (the "Existing Agreement"); WHEREAS, the CITY, McDonald Transit and UNT entered into an Interlocal Agreement on July 16, 2003 to provide for on-campus passenger motor carrier service for its students, staff and faculty (the "On-Campus Agreement") which provides for services in addition to the Existing Agreement; and WHEREAS, the C1TY and UNT desire to amend and extend the Existing Agreement for a third year under the terms and conditions contained 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 Interlocal Agreement is in the public interest; NOW, THEREFORE, CITY and UNT, in consideration of the mutual covenants hereinafter expressed, agree as follows: ARTICLE ONE 1.0 This agreement amends and extends the Existing Agreement to be effective as of August 15, 2003 through August 14, 2004 (the "Third Year"). UNT agrees to pay the CITY an annual fee for off-campus UNT student, staff and faculty ridership in the sum of $25,996.00 for the Third Year (the "Third Year Fee"). The Third Year Fee shall be due and payable to the CITY in two equal annual installments no later than October 15, 2003 and February 15, 2004. In exchange, the CITY shall permit all UNT students, staff and faculty to ride on the LINK system as outlined on the most current system map, on an unlimited basis by displaying a valid UNT student, staff or faculty identification to the LINK's bus drivers upon entering a bus. 1.2 2.0 2.1 At all reasonable times UNT shall be entitled to audit the records of the CITY. However, in no event shall this provision permit UNT to withhold payment of the annual fee. ARTICLE TWO This agreement represents the entire and integrated agreement between CITY and UNT and supersedes all prior negotiations, representations and/or agreements, either written or oral. This agreement may be amended only by written instrument signed by both parties. This agreement is separate and apart from the On-Campus Agreement. It is understood and agreed by the parties that if any part, term, or provision of this contract is held by the courts to be illegal or in conflict with any law of the state where made, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular part, term, or provision held to be invalid. Signed this ._. ,~ day of _ _ _, 2003. UNIVERSITY OF NORTH TEXAS CITY OF DENTON Phillip C. Diebel Vice President for Finance and Business Affairs By: Euline Brock Mayor ATTEST: ATTEST: City Secretary, City of Denton APPROVED AS TO LEGAL FORM Director of Contracts Administration By: APPROVED AS TO LEGAL FORM Herbert L. Prouty, City Attorney By: ~ PAGE 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: October 7, 2003 Materials Management Questions concerning this acquisition may be directed to Janet Simpson 349-8274 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider 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 therefore; and providing an effective date (Bid 3081-Cooper Glen-Monterey Open Space, Phoenix Park and Fred Moore Park Trails Project awarded to Jones and Jeffery Construction Co., Inc. in the amount of $247,623). BID INFORMATION This bid will add approximately 1.5 miles of new park trails to neighborhood parks and open spaces. These trails will connect neighborhoods with area parks and schools as well as connect facilities within the parks. The project is a part of the 2000-2004 CIP Trails and Linkages bond issue. RECOMMENDATION We recommend award of this bid to the lowest responsible bidder, Jones and Jeffery, Inc. in the amount of $247,623. PRINCIPAL PLACE OF BUSINESS Jones and Jeffery, Inc. Denton, TX STAFF COST ESTIMATE The engineer's estimate for this project was $250,000. ESTIMATED SCHEDULE OF PROJECT The project is estimated to begin upon Council approval at the Cooper-Glen Monterey Open Space Park with completion in January 2004. Improvements at Phoenix and Fred Moore Park will be started in January 2004 with an estimated completion date of March 30, 2004. Agenda Information Sheet October 7, 2003 Page 2 FISCAL INFORMATION This will be funded from project number 400055440.1360.40100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3081 ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: C~ ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ~ 0 ~' ~-~ 0 0 0 ~ .~ ~ ~ ~ · o 0 0 0 ORDINANCE NO. 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 THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BiD 3081-COOPER GLEN-MONTEREY OPEN SPACE, PHOENIX PARK AND FRED MOORE PARK TRAILS PROJECT AWARDED TO JONES AND JEFFERY CONSTRUCTION CO., iNC. iN THE AMOUNT OF $247,623). 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 3081 Jones and Jeffery, Inc. $247,623 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 3081 AGENDA INFORMATION SHEET AGENDA DATE: October 7, 2003 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider approval of a resolution authorizing the City Manager, as Demon'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 improvemems to the Demon Municipal Airport; confirming agreement to pay a portion of the total project costs; and providing an effective date. BACKGROUND As part of cominued airport developmem and following recommendations outlined in the 2003 Airport Master Plan, TxDOT is offering funds to construct over 4,000 feet of taxiway to realign the main taxiway system. The Denton Airport has been scheduled in the TxDOT 2004-2006 CIP for a $2,448,000 gram to realign the main taxiway. This will be a 90:10 match where the local sponsor, City of Denton, will fund 10 percent of the total design and construction costs. The Texas Transportation Commission is scheduled to review this project during their October 23, 2003 meeting. TxDOT officials have requested that the City of Demon provide documemation of support and acceptance of the proposed project through the attached proposed resolution. PRIOR ACTION/REVIEW The Airport Advisory Board has been briefed and unanimously recommends approval of the proposed resolution. Staff recommends approval of the proposed resolution to accept the offer. ESTIMATED SCHEDULE OF PROJECT TxDOT is requesting supporting documentation of the project to be submitted prior to October 13, 2003. If approved by the Texas Transportation Commission on October 23, 2003, a nine to twelve month design phase will begin. Upon approval and acceptance of the TxDOT Airport Project Participation Agreement for the construction phase, a six to nine month construction phase would begin. Construction phase is estimated to begin in the fall of 2004, FY 2005. FISCAL INFORMATION This is a 90:10 match grant for design and construction costs. TxDOT, Aviation Division estimates the design and construction of the taxiway realignment project at $2,448,000. The estimated sponsor share (City of Denton) for total project cost is $244,800. City of Denton will be responsible for 10% of design and construction costs. The total design phase cost is $244,480 and the City's share of the design cost will be $24,480. EXHIBITS Resolution Certification of Project Funds Designation of Project Representative Exhibit A Respectfully submitted: Mark Nelson, Director Airport and Transit Operations S:\Our DocumentskResolutions\03ktxdot airport grant resolution.doc RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER, AS DENTON'S AUTHORIZED REPRESENTATIVE, TO ACCEPT ON BEHALF OF THE CITY OF DENTON AN OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION (TxDOT) RELATING TO A GRANT FOR CERTAIN IMPROVEMENTS TO THE DENTON MUNICIPAL AIRPORT; CONFIRMING AGREEMENT TO PAY A PORTION OF THE TOTAL PROJECT COSTS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, intends to make certain improvements to the Denton Municipal Airport relating to taxiway realignment; and WHEREAS, the general description of the project is described in Exhibit "A" which is attached hereto and made a part hereof for all purposes; and WHEREAS, the City of Denton intends to request financial assistance fi:om the Texas Department of Transportation (TxDOT) for these improvements; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION i. The City of Denton, Texas, hereby directs the City Manager to execute on behalf of the City of Denton, at the appropriate time, and with the appropriate authorizations of this governing body, all contracts and agreements with the State of Texas, represented by the Texas Department of Transportation (TxDOT), and such other parties as shall be necessary and appropriate for the implementation of the improvements to the Denton Municipal Airport referenced in Exhibit A. SECTION 2. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: EULINE BROCK, MAYOR APPROVED AS TO LEGAL FORM: ORNEY CERTIFICATION OF PROJECT FUNDS I, Anna Mosqueda , Director, Management and Budget , (Name) (Title) do certify that sufficient funds to meet the City of Denton share of project costs as identified for the project and will be available in accordance with the schedule shown below: SPONSOR FUNDS Source Amount Date Available Funds previously., submitted to TxDOT 01 AIP $16,725 September 1~2003 2002 C.O. Bonds $7,755 October 8, 2003 City of Denton, Texas By: Title: Director of Management and Budget Date: DESIGNATION OF SPONSOR'S AUTHORIZED REPRESENTATIVE I, Michael A. Conduff , City Manager , (Name) (Title) with the City of Denton designates Mark Nelson, Dir. of Airport and Transportation Operations as the Ci_ty of DeNon authorized represemative for the Taxiway Realignmem project, who shall have the authority to make approvals and disapprovals as required on behalf of the City of Denton. City of DeNon, Texas (Sponsor) By: (Signature) Title: City Manager Date: DESIGNATED REPRESENTATIVE Mailing Address: 215 East McKinney Denton, Texas 76201 *Physical/Overnight Address 5000 Airport Road Denton, Texas 76207 Telephone Number: 940-349-7702 Fax Number 940-349-7289 E-Mail Address: manelson~cityofdemon.com * ALL GRANT AGREEMENTS ARE SENT BY OVERNIGHT MAIL EXHIBIT A FY 2004 State Grant Description Taxiway Realignmem Estimated sponsor share (City of Demon) for total project cost (Taxiway Realignmem), $244,800. City of Demon will be responsible for 10% of design and construction costs. Estimated matching share by TxDOT for the Taxiway Project is $2,203,200. The State will participate in a 90:10 gram match for design and construction of the proposed comrol tower. Total Project Cost as estimated by TxDOT, Aviation Division, $2,448,000. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: October 7, 2003 Fiscal Operations Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a resolution nominating a member to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. BACKGROUND The DeNon Cemral Appraisal District (DCAD) has notified the City that the term for members on the currem DCAD Board of Directors expires December 31, 2003. Therefore, DCAD is seeking nominations from taxing jurisdictions in the district. The attached resolution is available for City Council to make a nomination(s) for members to the DCAD Board of Directors. Once nominations from all taxing jurisdictions are received by DCAD, a ballot will be sent to the City for City Council to cast their vote to elect a member at the November 4, 2003, City Council meeting. The number of votes a taxing unit has is determined by their proportional share of the total levy in the district from the prior tax year. There are a total of 5,000 votes throughout the district. One thousand votes are the maximum number needed to elect a local representative/nominee to the Board of Directors. This year, the City has 158 votes and DISD 692 votes. In 2001, the City and DISD collectively voted and elected Rick Woolfolk. The currem DCAD Board Members include Richard Smith (Flower Mound), Charles Stafford (DeNon), Rick Woolfolk (DeNon), Lee Baker (Flower Mound), and Ben Harmon (Lewisville). SCHEDULE Applies only to every other year: Prior to Oct. 1 - DCAD notifies taxing emities of the number of votes they are emitled to cast for appropriating board members. Prior to Oct. 15 - Nominations for DCAD Board of Directors are submitted to DCAD by each jurisdiction (via resolution). Prior to Oct. 30 - DCAD compiles comprehensive list of nominees and forwards list to each taxing unit in ballot forms. Prior to Dec. 15th - Taxing units choose by written resolution a candidate(s). Name(s) of candidate(s) are submitted to DCAD along with the number of votes for each candidate. Prior to Dec. 31st - DCAD tabulates votes and forwards results to taxing units. The five (5) candidates with the most votes become the Board of Directors as of January 1. Eligibility Guidelines: · The selection process is set forth in Section 6.03 of the Property Tax Code. An appraisal district director must reside in the appraisal district for at least two (2) years immediately preceding the date he or she takes office. Most residents are eligible to serve as a director. · An employee of a taxing unit served by the appraisal district is not eligible to serve as a director. However, if the employee is an elected official, he or she is eligible to serve. A statute relevant to the Board selection process prohibits nepotism and conflict of interest for appraisal district directors and chief appraisers. In summary, the law states that: ....... "a person may not serve as director of closely related to anyone in the appraisal district or if related to anyone who represents owners in the district, or if the person has an interest in a business that contracts with the district or a taxing unit. A chief appraiser may not employ someone closely related to a member of the board of directors". EXPERIENCE - In considering individuals to serve as directors, taxing units should look for expertise in such areas as accounting, finance, management, personnel administration, contracts, computers, real estate or taxation. Historical involvement in local government activities also indicates that someone should make an excellent Board member. FREQUENCY OF MEETINGS - The applicable statutes require the board of directors to meet not less often than once each calendar quarter. The DCAD Board meets more often than is required by law. FISCAL INFORMATION There is no fiscal impact to the City of Denton. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations S:Our Documalt s Resolutions 03~mminate caltr al appraisal distric[doc RESOLUTION NO. A RESOLUTION NOMINATING MEMBERS TO THE BOARD OF DIRECTORS OF THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the term of office for the Board of Directors 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 as a member to the Board of Directors of the Denton Central Appraisal District for two year terms to commence January 1, 2004. 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 INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: October 7, 2003 City Manager's Office Mike Conduff SUBJECT Consider 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. BACKGROUND Council Member McNeill requested that this item be placed on the agenda for Council consideration. Respectfully submitted: Jennifer Walters City Secretary RESOLUTION NO. 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. WHEREAS, efficient and effective access into and from the Dallas-Fort Worth metropolitan area (according to the 2000 U.S. Census, approximately 47 percent of the Denton County workforce commutes daily into Dallas and Tarrant Counties) is vital for improving regional air quality, transferring clients and customers to Denton area businesses, as well students to three different Denton area institutions of higher education, and skilled employees to Denton area employers; and WHEREAS, the completion of Farm-to-Market Road 2499 is a crucial component of the City of Denton Mobility Plan for addressing the aforementioned issues; and WHEREAS, the primary and significant aspects of complying with the Environmental Impact Study regarding the completion of F.M. 2499 have already been met; and WHEREAS, the City Council deems it in the public interest to support the completion of Farm-to-Market Road 2499; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City Council does hereby express its support for the completion of Farm-to-Market Road 2499 and respectfully requests that all necessary resources be utilized to assure that its is successfully expedited within the proposed schedule. SECTION 2. That the City Manager is hereby directed to send copies of this Resolution to the appropriate officials at the Texas Department of Transportation (TxDOT) and to other State officials he deems need to be aware of this Resolution. SECTION 3. 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: Page 2