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March 23, 2004 Agenda
AGENDA CITY OF DENTON CITY COUNCIL March 23, 2004 After determining that a quorum is presem, the City Council of the City of Demon, Texas will convene in a Work Session on Tuesday, March 23, 2004 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: Receive a report, hold a discussion and give staff direction regarding infill policies and implementation tools. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of March 23, 2004. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Governmem Code, as amended, as set forth below. 1. Closed Meeting: mo Deliberations regarding economic development negotiations - Under TEXAS GOVERNMENT CODE Section 551.087. Deliberate and discuss commercial or financial information received from a business prospect and offers of financial or other incentives to the business prospect, Windjammer, Ltd., for the purposes of economic development negotiations relating to the development of a mixed use development commonly known as Unicorn Lake on approximately 134 acres of land generally located on the west side of 1-35E north of State School Road in the M.E.P. & P.R.R Co. Survey, Abstract No. 950 in the City of Denton, Denton County, Texas. Bo Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Discuss and consider legal issues concerning Charter Communications, dba Marcus Cable Associates, L.L.C. ("Charter") as follows: Settlement of the Notice to Charter of Customer Service Violations and assessment of Liquidated Damages; and Whether to participate in the Charter Cable Consortium administrative process on the above notice of violation and liquidated damages. 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 City of DeNon City Council Agenda March 23, 2004 Page 2 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. Regular Meeting of the City of DeNon City Council on Tuesday, March 23, 2004 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE mo U.S. Flag Texas Flag "Honor the Texas Flag -- i pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards B. Recognition of staff accomplishments 3. CITIZENS REPORTS mo Receive citizen reports from the following: 1. Peternia Washington regarding responsible and responsive governmem, part 3. 2. Donnie Autry regarding safety issues on Teasley Lane. 3. Pouran Merrikhi regarding DeNon Municipal Utilities. 4. John High regarding cycle billing of the Utility Departmem. 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-U). 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. City of DeNon City Council Agenda March 23, 2004 Page 3 If no items are pulled, Consem Agenda Items A-U below will be approved with one motion. If items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. Consider a request for an exception to the Noise Ordinance for the purpose of playing music and operating a public address system at Denia Park during University of North Texas Athletic Department softball tournaments to be held on March 28, April 18 and April 25. The exception is specifically requested for amplified sound on Sundays. Consider adoption of an ordinance awarding a comract for the purchase of audiovisual equipment for the City of Denton Fire Department 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 3136 - Purchase of Audiovisual Equipmem awarded to SchoolHouse Audio-Visual in the amoum of $44,278.30). Consider adoption of an ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of DeNon; and providing an effective date (File 3150 - Electrical Energy Transmission Fees in the total amoum of $1,527,831). Consider adoption of an ordinance authorizing the City Manager to accept an Interlocal Agreement with the City of Oak Point, Texas to authorize participation in various City of DeNon comracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 3147 - Interlocal Agreemem with the City of Oak Poim, Texas). Consider adoption of an ordinance accepting competitive bids and awarding a public works comract for an annual price agreemem for chip sealing of city streets; providing for the expenditure of funds therefor; and providing an effective date (Bid 3143 - Annual Price Agreemem for Chip Sealing awarded to Joe Sullivan, Inc. in the annual estimated amoum of $310,000). Consider adoption of an ordinance accepting competitive bids and awarding a comract for the purchase of fleet vehicles; providing for the expenditure of funds therefor; and providing an effective date (Bid 3135 - Fleet Vehicles 2004 awarded to the lowest responsible bidder for each item as shown in Exhibit A in the amoum of $482,963.35). Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of fleet heavy equipment; providing for the expenditure of funds therefor; and providing an effective date (Bid 3138 - Fleet Heavy Equipmem 2004 awarded to the lowest responsible bidder for each item in the amoum of $224,425.48). City of DeNon City Council Agenda March 23, 2004 Page 4 Ho Consider adoption of an ordinance of the City of DeNon, Texas amending Article IV entitled "Stopping, Standing, and Parking" of the Motor Vehicles and Traffic Chapter of the Code of Ordinances of the City of DeNon, Texas by amending Section 18-104(a) relating to storage and impoundmem fees for impounded vehicles; amending Article IV entitled "Police-Initiated Towing Services" of the Police Chapter of the Code of Ordinances of the City of DeNon, Texas by amending Section 23-87 to establish a standard tow fee; providing a severability clause; providing a savings clause; and declaring an effective date. Consider adoption of an ordinance concerning an Alternative Developmem Plan for approximately 0.20-acre site curremly zoned Dowmown Residemial 2 (DR-2). The site, commonly known as 924 West Prairie Street, is generally located north of Prairie Street between Bernard and Welch streets. A six-unit apartmem complex is proposed. The Planning and Zoning Commission recommends approval (7-0). (ADP04-O001, Prairie Oaks II) Jo Consider adoption of an ordinance of the City of DeNon, Texas, authorizing the Mayor to execute an Interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas for road improvements for FM 2181; authorizing the expenditure of funds therefore; and providing an effective date. Ko Consider adoption of an ordinance by the City of DeNon, Texas abandoning and vacating a 1,960.20 square foot portion of street right-of-way for Fain Avenue as it affects Lot 1, Block 1 of the D.H. Fry Addition as recorded in Volume 75, Page 74 of the Plat Records of Denton County, Texas; and providing an effective date. Lo Consider adoption of an ordinance of the City of DeNon, Texas approving the amendment of an agreement between the City of Denton and McDonald Transit Associates, Inc. for the operation of bus services dated April 16, 2002, as amended, to allow the City to provide insurance coverage through the Texas Municipal League Imergovernmemal Risk Pool ("TML Risk Pool"); approving an interlocal agreement between the City and the TML Risk Pool to provide such insurance; and authorizing the City Manager or his designee to execute the amendment on behalf of the City and the Mayor to execute the interlocal agreemem on behalf of the City; authorizing the expenditure of funds; and providing for an effective date. Mo Consider adoption of an ordinance approving a Commercial Operator Airport Lease Agreement between the City of Denton and Group CBS, Inc.; and providing an effective date. No Consider adoption of an ordinance amending Chapter 13 Food and Food Service Establishmems of the City of DeNon Code of Ordinances by making conforming changes in accordance with the Texas Food Establishment Rules promulgated by the Texas Departmem of Health; providing a severability clause; providing a savings clause; providing for a penalty not to exceed $2,000 for violations of this ordinance; and providing for an effective date. City of Demon City Council Agenda March 23, 2004 Page 5 Oo Consider adoption of an ordinance of the City of Demon, Texas amending Section 22-32 of the Code of Ordinances of the City of Demon relating to the possession and consumption of alcohol in the Civic Cemer Park and buildings; providing for a penalty of a fine not to exceed five hundred dollars for each offense in violation of the ordinance; providing a severability clause and an effective date. Po Consider approval of a resolution allowing Denton Festival Foundation to be the sole participant allowed to sell alcoholic beverages at the Denton Arts & Jazz Festival April 23-25, 2004, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. Qo Consider adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to submit for a grant with the US Department of Housing and Urban Development for a Continuum of Care Homeless Assistance Grant; as authorized and required by the McKinney-Vento Homeless Assistance Act of 1987 as amended and authorizing the City Manager to take necessary action to obtain the grant; and providing for an effective date. Ro Consider adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to submit an application under the National School Lunch Act to obtain funding for the 2004 Summer Food Service Program; if such funding is grained, the City Manager is authorized to execute the Summer Food Service Program agreement with the Texas Department of Human Services and execute a contract with Denton Independent School District and all additional documents and agreements, as required; authorizing the expenditure of funds to administer the program; and providing an effective date. So Consider approval of the minutes of February 13, February 17, and February 24, 2004. To Consider adoption of an ordinance on first reading to volumarily annex 35.43 acres of land generally located north of Pockrus Page Road, west of Swisher Road, and south of Edwards Road in the southeastern section of the City of Demon Extraterritorial Jurisdiction (ET J). The Planning and Zoning Commission recommends approval (6-0). (A03-0002, Village of Carmel Annexation) Uo Consider adoption of an ordinance on first reading to volumarily annex 19.51 acres of land generally located north of Pockrus Page Road, east of Mayhill Road, and south of Edwards Road in the southeastern section of the City of Denton Extraterritorial Jurisdiction (ET J). The Planning and Zoning Commission recommends approval (6-0). (A03-0003, Flowers Baking Company Annexation) 5. PUBLIC HEARINGS mo Hold a public hearing and consider adoption of an ordinance amending a Concept Plan for Planned Developmem 115 (PD-115) for approximately 9.1 acres. The property is generally located at the southwest corner of US Highway 77 and Bonnie Brae. A church is proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0031, North Lakes Baptist Church) City of DeNon City Council Agenda March 23, 2004 Page 6 Bo Hold a public hearing and consider adoption of an ordinance rezoning approximately 21.5 acres from a Regional Cemer Residemial 1 (RCR-1) zoning district to a Regional Cemer Commercial Neighborhood (RCC-N) zoning district. The property is generally located between Colorado Boulevard and Rails to Trails Reservation approximately 825 feet east of Brinker Road. Medical offices are proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0036, Denton Regional Medical Center Phase 3) Co Hold a public hearing and consider adoption of an ordinance approving a Specific Use Permit for a gas well site. The approximately 3 acre property is in a Neighborhood Residemial 3 (NR-3) zoning district and is generally located approximately 900 feet west of Teasley Lane, on the west side of Helm Lane. The Planning and Zoning Commission recommends approval with conditions (6- 0). (Z03-0037, Kozura - Mohan) Do Hold a public hearing and consider adoption of an ordinance rezoning approximately 4 acres from a Regional Cemer Commercial Neighborhood (RCC- N) zoning district to Regional Cemer Commercial Dowmown (RCC-D) zoning district. The property is located approximately 900 feet south of Pockrus Page Road, on the northeast side of Interstate-35 East. The Planning and Zoning Commission recommends approval (7-0). (Z04-O001, ExploreUS.4) mo Hold a public hearing and consider adoption of an ordinance rezoning approximately 7.9 acres from Regional Cemer Residemial 1 (RCR-1) zoning district to Regional Cemer Commercial Dowmown (RCC-D) zoning district. The property is located approximately 450 feet northwest of Shady Shores Road, on the northeast side of Interstate-35 East. Applicant proposes a medical center and retail uses. The Planning and Zoning Commission recommends approval (7-0). (Z04-0003, Fletcher Medical Offices) Fo Hold a public hearing and consider adoption of an ordinance rezoning approximately 7.9 acres from a Dowmown Residemial 2 (DR-2) zoning district to a Dowmown Commercial General (DC-G) zoning district. The site is generally located adjacent to the north side of 1-35E, approximately 230 feet west of Centre Place Boulevard. A movie theatre is proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0040, Premier Cinemas) Go Hold a public hearing and consider adoption of an ordinance concerning a Specific Use Permit (SUP) for a proposed 2,900-seat movie theater on approximately 10.2-acre site. The site is generally located adjacent to the north side of 1-35E, approximately 230 feet west of Centre Place Boulevard. The property is curremly zoned Dowmown Residemial 2 (DR-2). A zoning change for a Dowmown Commercial General (DC-G) designation has been requested in association with this SUP. A movie theatre is proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0041, Premier Cinemas) City of Demon City Council Agenda March 23, 2004 Page 7 6. ITEMS FOR INDIVIDUAL CONSIDERATION Consider adoption of an ordinance concerning an Alternative Developmem Plan for approximately 10.2-acre site curremly zoned Dowmown Residemial 2 (DR-2). A zoning change for a Dowmown Commercial General (DC-G) designation has been requested in association with this application. The site is generally located adjacem to the north side of 1-35E, approximately 230 feet west of Cemre Place Boulevard. A 2,900-seat movie theatre is proposed. The Planning and Zoning Commission recommends approval (7-0). (ADP03-O010, Premier Cinemas) Consider adoption of an ordinance concerning an Alternative Developmem Plan for tree canopy coverage for a warehouse on approximately 9.2 acres located in an Employmem Cemer Industrial (EC-I) zoning district. The property, commonly known as 600 Loop 288, is generally located east of Loop 288, south of Cypress Blvd. and west of Blake Rd. The Planning and Zoning Commission recommends approval (5-2). (ADP04-O002, Russell Newman) Consider adoption of an ordinance establishing an economic developmem program under Chapter 380 of the Local Governmem Code for making grams of public money to promote economic development and to stimulate business activity in the City of Demon; approving an economic developmem program gram agreemem with Windjammer, Ltd. regarding the developmem of approximately 134 acres of land commonly known as Unicom Lake which is generally located on the west side of 1-35E north of State School Road in the M.E.P. & P.R.R. CO. Survey, Abstract No. 950, in the City of Denton, Denton County Texas; authorizing the expenditure of funds therefore; and providing an effective date. Consider adoption of two ordinances authorizing the City Manager or his designee to execute professional services and high technology procuremem agreemems with Biodiesel Industries, Inc. for the sale, lease operation and license of biodiesel production facilities and with DTE Biomass Energy, Inc. for the design and developmem of a landfill gas collection system and digester gas; authorizing the expenditure of funds therefor and providing an effective date (myu 311 ~). Consider approval of a resolution of the City of Demon, Texas urging the Texas Legislature to adopt School Finance Reforms that would not adversely affect city revenues and economic developmem efforts; and providing an effective date. F. Consider nominations/appoimments to the City's Boards and Commissions. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. City of Demon City Council Agenda March 23, 2004 Page 8 Ho Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Jo Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Demon, Texas, on the day of ,2004 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800- RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT Receive a report, hold a discussion and give staff direction regarding infill policies and implementation tools. BACKGROUND The Council requested that staff prepare a presentation on infill development in the City of Denton. The attached paper sets forth existing infill conditions and policies and suggests a set of new policies and programs to enhance the ability to construct infill projects in the City of DeNon. The March 23 presemation to Council will include descriptions and photos of existing infill projects in DeNon as well as a summary of the infill policies and programs of other cities. OPTIONS 1. Direct staff to proceed with infill policies and programs. 2. Direct staff to leave infill policies and programs as they are now. 3. Direct staff to perform additional research concerning infill policies and programs that could be implememed in the City of DeNon. Respectfully submitted: Kelly Carpemer, AICP Director of Planning and Developmem Prepared By: Dedra Ragland & Chris Hatcher, Comprehensive Planning and Research Division City of Denton Planning & Development Department City Hall West, 221 North Elm Street, Denton, TX -i'620~ 940.349.8350 What is infill development? Infill development is defined in the Denton Plan as the planned conversion of empty lots, underused or rundown buildings, and other available space in densely built-up urban and suburban areas for use as sites for commercial or residential buildings, frequently as an alternative to overdevelopment of rural areas. Similarly, the Denton Development Code defines infill as development or redevelopment of land that has been bypassed, remained vacant, and/or is underused as a result of the continuing urban development process, where 80 percent of the land within a 500- foot radius of the site has been developed and are generally readily accessible to infrastructure services and facilities. Infill development is one key to accommodating growth and redesigning our city to be environmentally, fiscally and socially sustainable. Why is infill development needed in Denton? Communities across the country are recognizing that the patterns of sprawl growth that have shaped American communities for the past several decades cannot be sustained. By absorbing growth into existing neighborhoods, infill can lessen growth pressures on rural areas and at the periphery, can improve the quality of life for existing and older communities, and help rehabilitate and revive declining urban neighborhoods. Infill is needed in Denton to: · Absorb some of the growth into existing neighborhoods · Improve quality of life for older communities · Help rehabilitate and revitalize declining neighborhoods · Take advantage of existing infrastructure · Help revitalize Downtown · Re-use walkable neighborhoods Help create the density that will support transit Provide different types of housing and shopping options: o Patios o Townhouses o Condominiums o Small shops and live/work units o Support the two Universities Infill development can fill gaps in existing communities; conserve financial resources by taking advantage of existing infrastructure; and create new opportunities for mixed-use neighborhoods. More importantly, infill development can advance the community vision stated in the Denton Plan, and many of its policies, strategies and goals including: · Economic development and improved tax base · Revitalization of downtown and urban neighborhoods · Development of needed housing in close proximity to employment and services · Neighborhood preservation and enhancement · Transportation choices and connectivity · Walkable neighborhoods and transit- supportive development · Efficient use of existing urban services and facilities · Resource and land conservation · Diversity of housing opportunities · Environmental protection of land, air and water resources. What are the barriers to infill development in Denton? It is important to remember that sites that have been passed over for development or have not been redeveloped for another use are generally idle for a reason: · Vacant land may be oddly shaped or difficult to build on · Vacant land may be environmentally contaminated Higher densities in neighborhoods can add to the pedestrian and transit activity in the neighborhood, and hence the vitality. Higher densities are often needed to support an efficient transit system, which in turn, helps increase pedestrian activity. Promoting higher densities is an important tool to neighborhood revitalization and regeneration. Denton community members have often opposed infill and mixed-use projects located near them, even if the proposed development is more highly valued. Residential infill development that has received a great deal of opposition in Denton involves affordable housing. Past experiences with area nonprofits such as the Denton Housing Authority (DHA) and the Denton Affordable Housing Corporation (DAHC), organizations primarily responsible for affordable housing development, have added fuel to concerns regarding higher density infill development. ~o mp~he~ si~e ann andRes ~arc e am ~o~o Development costs to demolish or remove remnants of existing structures Neighborhood opposition Development codes Development approval processes Difficulty obtaining approval to rezone/upzone property Building codes for rehabilitation Unclear property ownership and title Illegal subdivision by metes and bounds Cost of infrastructure improvements Despite the many benefits, developers face barriers and impediments to infill development in Denton. Neighborhood Opposition. Neighborhood residents often resist efforts to increase density. Higher density development promotes more compact development. In July 2001, Southeast Denton residents overwhelmingly opposed a proposal by DHA to rezone several properties from single-family to Planned Development allowing multifamily uses, infill development within the neighborhood. The proposal included two quadraplexes, and two town home developments (64 units and 41 units) located in predominantly single-family residential neighborhoods. Due to the neighborhood's strong concerns regarding the increased density, crime and congestion by the neighborhood, the projects were either denied by City Council or withdrawn from consideration by DHA. Most recently, the City Council considered two infill development proposals by DAHC. DAHC proposed to rezone properties (3.85 acres and 4.0 acres) that it owned, located off Mockingbird Lane, from Neighborhood Residential 4 to Neighborhood Residential 6 for detached and/or attached single-family units. Residents were opposed to both rezoning petitions 2 primarily due to concerns regarding the increase in density. City Council approved the rezoning of two acres out of the 3.85-acre proposal, and denied the 4.0-acre proposal. Development Regulations. According to property owners and developers, the review procedures and regulations contained in the Denton Code do not allow administrative flexibility and often create hardships for infill development. Infill development projects often require platting or replatting, and due to the configuration of the lot, cannot fully comply with the site design standards and subdivision regulations contained in the Denton Code. The size, width and shape of many infill parcels make it difficult to develop in a manner that meets the current land use regulations. More lot and building frontage, lot area, setbacks and buffers are required than will fit on a typical infill lot. In some instances, if the requirements of the Code are met, the resulting product is incompatible with the surrounding development. Variances and special exceptions are often needed, which can add time to the process, and decrease the Developer's financial return on the investment. The Development Code provides limited authority to the Planning Director to waive some development requirements; however, given the complexities and the many variables that can exist with infill development, this is not enough. In the following scenarios, infill development on these sites has proven difficult. Example 1. !5i · 50'x133' lot (6,650 square feet) 25'x129' lot (3,225 square feet), Smaller lot undevelopable · 1,600 square foot single-family house · NR-4 Zoning · Existing neighborhood with no existing sidewalks in Southeast Denton · Platted lots, no existing setbacks shown on plat An amended plat is required to combine the lots. Variances from sidewalk, parking, setbacks, landscaping, etc. may be needed. Site design standards for residential developments less than 10,000 square feet are applicable. To deviate from the site design requirements, the property owner may need to propose an Alternative Development Plan. If water/wastewater has to be extended or if there are no previous taps, impact fees apply. The property owner will incur costs to develop both lots for a single-family house. If the owner develops only the larger platted lot, an amended plat is not required, however the same variances as indicated above may be needed, the site design standards for residential development on lots less than 10,000 square feet are applicable, and to deviate from the site design requirements, an Alternative Development Plan may be required. The smaller lot remains undevelopable. 3 Example 2. · Single story live/work in existing building Live-50%; Work-50% · DC-G Zoning · Pedestrian-Oriented District · Utilities complicated by service being provided through lines on adjacent property The Development Code permits live/work units, dwellings above businesses, and home occupations. The proposed development does not fall within either of these permitted uses. Property owner wants 50 percent work and 50 percent living on first floor. The Code permits up to 25 percent of floor area for work or the 50/50 split if the living area is located above the business. In addition, the property is located downtown and there are historic and energy code issues. Infrastructure Costs and Impact Fees. It is a common assertion that the ability to use existing infrastructure is an advantage to infill development. In some cases where there is vacant developable infill land, the existing infrastructure is available, but inadequate, especially for drainage. In many inner-city neighborhoods existing infrastructure needs to be repaired, replaced, or modernized to serve both new and existing development. If the developer is required to pay for these upgrades, the project may be abandoned, especially when the development is affordable housing infill. In 1998, City Council adopted an impact fee ordinance, which was revised in 2003, authorizing the assessment of impact fees in the city's water and wastewater service areas. Water and wastewater impact fees help to stabilize rates during periods of rapid growth and are charged to new development to offset the costs related to the development's impact on existing water and wastewater infrastructure. New residential, commercial and industrial developments can increase water and wastewater demands significantly, which may require improvements to existing facilities and infrastructure. Such improvements include, but are not limited to, the acquisition of additional water supplies, expanding or building new water and wastewater treatment plants, and the construction of water storage tanks, pump stations and transmission lines. Impact fee assessments are calculated according to service units. Denton's water and wastewater service unit is based on a "single-family equivalent" (SFE), which is equal to the water and wastewater demand of the average single-family residence. There is a provision in the current impact fee ordinance that grants a reduced assessment for a single-family residence less than 1,300 square feet located on a lot less than 6,000 square feet. The reduced assessment is equal to one-half of one service unit (SFE). For re-developed properties, pre-existing demand is credited to the site. Only the additional demand placed on the system by the re-developed property is assessed for impact fees. 4 , va can t I a n d ~e p~ese n ting6 9 0 pa rce is ~ithi nth i si n fi I I a Ne a;s i x p e r Ce ntis I essthan t acre in size and over h alfOfIhe vacan land exceeds five acres in size Vacant Land Inventory within Possible Infill Boundary Vacant Land by Zoning District Source: Existing Land Use Database, Planning and Development Department Vacant Land withinin Floodplain 5 What specifically could be done to encourage infill development in Denton? Gain community acceptance for infill development through an infill development program. Sponsor and conduct education seminars, small workshops, and meetings with individual community groups and potential infill developers to provide education on infill land development issues. Appoint an advisory committee comprised of local officials, city staff, development interests and community neighborhood leaders to further define the extent of the problems and opportunities related to infill and redevelopment, and potential constraints that exist in the community. Take direction from the Denton Plan to strengthen the implementation tools related to infill development. The Denton Plan contains policies concerning infill development within the different elements of the plan. Consolidate these elements into a specific policy. Establish an infill development program based on this policy. Establish an urban infill development boundary or boundaries in which to target incentives and promote infill development. Change or amend development regulations. a. Use special overlay zoning and districts in Chapter 7 of the Development Code to establish infill zoning overlay districts. The overlay may modify or eliminate existing regulations, or it may introduce new regulations. Establish specific design standards for each overlay district. Develop neighborhood district and/or small area plans b. Reduce selected improvement requirements for infill residential developments, on public and private streets other than those designated as collector or arterial. For example, when platting is required on infill sites, waive sidewalk construction on abutting non-collector and non- arterial road right of ways where sidewalk does not exist along the street in front of both properties abutting the infill site on the same side of the street c. Establish criteria for reducing or waiving site design standards required for platting through an administrative process at staff level. d. Amend the live/work requirement in the code to allow more floor area for work, as long as the living is located to the back of the building and the business use is oriented to the street frontage e. Amend code to allow tandem parking for infill single-family residential development specifically designed to increase the supply of affordable housing Using existing vacant land inventory, develop a more extensive and comprehensive inventory of infill and redevelopment properties owned by the city and that are available for redevelopment. a. Identify infill sites b. Rezone sites to encourage successful infill Establish an aggressive program of acquiring properties for land banking/land assembly purposes and to increase the supply of affordable housing. a. Promote development of City-owned surplus lots. b. Acquire tax-foreclosed properties c. Use power of eminent domain to condemn and acquire sites 6 d. Identify and acquire sites where market forces can succeed on their own, specifically around proposed future transit stations, lines and stops to promote infill and transit- oriented developments (TOD). As proposed in the Denton Plan, the prime location for an urban village/mixed-use development associated with a regional rail stop should be located in the Regional Mixed Use Centers. Direct Planning staff, in coordination with the Denton County Transit Authority and the North Central Texas Council of Government's regional rail corridor study, to identify sites along the proposed rail corridor for possible infill transit oriented development. Rezone to accommodate appropriate zoning for TOD. e. Provide developer-friendly conveyances of City-owned properties. Convey lots in a manner that allows them to be utilized as collateral for construction financing. Lots could be conveyed at no cost with City retaining a reversionary interest (reverter clause). Identify physical constraints, infrastructure problems, property tax liens, etc. that exist and resolve them prior to conveyance. Transfer ownership of vacant lots to community organizations that are willing to improve and/or maintain them under a contractual arrangement with the City. f. Create redevelopment authority to acquire, assemble, clean up, and package land for resale. g. City sponsor/fund demolition of old/substandard structures. Acquire, clear and improve sites. h. Engage in land trades. Aggressively market infill and redevelopment sites once acquired and inventoried. Participate in infrastructure cost sharing. a. Develop a specific bond package in the upcoming Capital Improvement Program (CIP) targeting the location and timing of planned public facility improvements to areas where infill is desired. Focus on specific infill and redevelopment areas for capital projects, such as street, utility, and public amenity improvements. Prioritize infrastructurespending within targeted infill sites. b. Use investment in infrastructure to leverage participation from developers for affordable housing, special design treatments, and the provision of urban amenities. c. Reduce or discount impact fees for infill development. i. Impact fees are charged to new development to offset its impact on existing water and wastewater facilities. Currently, the city discounts impact fees for single-family residential development less than 1,300 square feet and on lots less than 6,000 square feet by 50%. Direct water/wastewater staff to review current program to determine if additional fee reductions are possible for both residential and nonresidential infill development. ii. The City has an Impact Fee Incentive Grant Program administered by the Community Development Department as an incentive to construct affordable housing. The program provides grants to eligible non-profits to help defray or pay for impact fees. Approximately $30,000- $40,000 is budgeted annually to cover the provisions of the grants. Direct Planning staff to work with Community Development Department to research possible expansion or 7 development of a similar program to provide grants to eligible for- profits to help defray the cost of impact fees as an incentive for both residential and nonresidential infill development. 9. Establish financial incentives program strictly for infill development. a. Provide public subsidies i. Cover disparity between cost of acquiring and making the site marketable (environmental clean up, reparcelization, etc.), and the sales price; ii. Provide short-term gap financing or long-term tax relief; iii. Subsidize non-profits and community groups for projects meeting community needs, such as affordable housing or public parks b. City provide Iow-interest loans and grants c. Establish Tax Increment Financing Districts and Public Improvement Districts d. Establish a comprehensive tax incentive program to promote the return of property to productive use utilizing: i. Tax abatement ii. Tax credits iii. Waiver of delinquent local taxes or fees e. Aggressively pursue federal funding to assist in infrastructure participation, gap financing, transit oriented development, etc. i. Community Development Block Grant (CDBG) ii. Transportation Equity Act for 21st Century (TEA-21) iii. Environmental Protection Agency (EPA) iv. HOPE VI 10.Develop and implement neighborhood, district or small area plans in partnership with neighborhood stakeholders. Specifically identify in neighborhoods where infill development should occur and areas where improvements will have the greatest impact. Work with community leaders, neighborhood groups, and developers to articulate a vision of the type of infill that will strengthen the neighborhood. When developers come forward with projects that advance that vision, projects should be allowed to move quickly through the regulatory process. The Economic Development Department has been asked by its Economic Development Partnership Board to review its current tax abatement incentive policies and make recommendations to City Council regarding changes. Economic Development will identify special incentives that should be considered for projects identified in their Strategic Implementation Plan, which includes encouraging infill development. 8 ONE POSSIBLE ~NFJLL E~OUNDARY MAP MARCH 2OO4 Legend lnfill Boundary Street Centerline Vacant I Undeveloped Parcels 9 Th fi~ 6ura g~infi!! ~e~eDpme nt} res!orat~on and r e~e~e!op ment ~i!h~a t~e ex is i i ag Cent er ¢i!y and ~art~and~ng the ani~e~sit~es (PAGE23) !~mitS (PAGE29; ! n< e nti~ es s ko a!d b e ia~ e sligate d ~o e aC oara g e ia fih 0uSin g ¢ 0 a Sitnt <ti0 a e s p e ¢iaH ia ¢ o nj unCii0 w i ih ~eighb0 ta00d !e v ita!iz at i0 n P! aa S(PAGE!22) Pr6 ~6~ein fi !! in fra sm crate impro v e m eats o ~ er ne !ine e wen s i~ a s !hat exp an d th e g e ographi¢ c o ~ e~ age ~eDped p o~io~s of ~e ~i!y e g isling Snb s!~adard d~ai~age lO AP eli eye BiB fill d e ~ e I 0 p ~ e n t~i g~i B Cl U d e~ ~ e~e I leWi B g g o al s and strategies ' ACCO ~eda teg~ew~h bYe~ ~O u~a g in gaud infras~ruc~ure U~ilitles; and Publi fa¢ili[ies;wh i le add~essi,g the, e~d s ~f De, ~, ~es!d e,tsi Olde~ e St ab liS h e d co ~..i ti e S "E~0~ragec~mpac~de~elop~eBt~hatispedes~da s Cale d a, d; w he ~e a p P l ica ble; t ~a, s it~o~i e,ted . D esignategeographica~easasinfilland [e deVelOp ~ e BI a ica s fo~ th e P U~P0se 0~ ta[g et! B g e¢0n0mic develepment;j0bcreati0n;h0usingi i!i!i in~estigatesiting0fl0cati0~sf0rtransi 0des: de ~ el O P m e B ~[ eg U l a ~i 0 ~ s aB d a ~ ¢ ~i te ¢~ U [a lst aB d a~ d S SPecifiC ~e t he i,fil I a,d [e d e~e I epee, ~ a[ea affo~da b l e h ~ 0 s i ,g thr 0 U g hi, fi I Id e ~el 0 P~ e,t;a fi d 11 tY;inc~ PeratiO n ~i t h n e i ghb o ~h ~d and de,el op me nt c om mu nity i de n~i fy e a s w h e re i n fi i d e~ e i opine n t i s d e s i~e E sta b I is hsta n d a rdS f e~ th e t Y Pe SOl i n fill d evele pm en t that a re a pp~ep~iate fo~ ach ef these areas; s tanda~ds ShOUld rog u late the density size a nd c hit ectu ra I de s i g nof n ewi n f il I d e vel o p m eh t; O~id e incenti~es t ode~ IO pars fog bU ildi n g new in fi II P~ojects a~ticipate in impro~eme.ts t p UbliC facilities a.d so,ices to supp~ ~ infill de Vel ~ p m e n t; C ha n g e exis tin g re g u I ati one to s u p po~ in fi I I deVel O P m e n t: I Id entify eta keho i d ers an O fo rma task gte u p or steer eom mittee that is wOrking tog e the r towa rd a common ag eh da Ed u cate eta k eh Old ers abou t the be nor its ~f i nfi I I de.,/elO P men t; 2 Identify in fill P~iOdtY areas inVOlve the stake h Olde ~ gr~u P i n identifying P~ib r i tY a teas for in fill d eve lO pm en t cons u It wit h re alters a n d developers to assess the real estate ~a~ket fo ~ i n fill deVelOP ~ent in these areas; Ida n ti fy w hat tY pos of d eve IO p m e n t weuld be fees i ble and ~ h at weuld be t h e s t a p p r ~ p r i ate dens it~ 3 CarryOutan i nfillparcelin~entoryinpdorityareas; create an in~entory Of t h e~ a ca nt a n d u n d e rut il i zed pro p erty i n th e priority in fil I are a s i den tiff e d ab o~e; 4 p ~io~iti z e th b in fi a~cels a cc e~d i n g to d e~e I ~ P ab il ity an h e i~ i m p o ~ancefo~ a c h i e~ i n g t he co ~ ~unity:s Ob jo ct i~ e s; E V a luate b as e d on size O f par ce I; configuration Of parcel; size; conditi on; quality and value o f existing structures; characte~ e~ the neig h boyhood dynamics ef the real estate market; capacity and c~nditiO n of i n frast~ucture a nd s u r r~u nd ing a men i ties an d su ppeE services 5 Identi ba¢~ieCs tb in fill degelop~ent; InVolVe stakeholders in evaluating s trateg i e s a n d re co e n d atio ns; 6' Ida nt i fy i m p lame ntat ion strateg y're so u rca sa nde cti onpl an' 12 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 23, 2004 City Manager's Office Michael Conduff, City Manager SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of playing music and operating a public address system at Denia Park during University of North Texas Athletic Department softball tournaments to be held on March 28, April 18 and April 25. The exception is specifically requested for amplified sound on Sundays. BACKGROUND In spring of 2003, the City of Denton entered into an Interlocal Cooperation Agreement to allow the University of North Texas Athletic Department to play games on ballfields at Denia Park. The majority of games are played during the week or on Saturdays with the exception of three games occurring on Sundays, which will require an exception to the noise ordinance. PRIOR ACTION/REVIEW None FISCAL INFORMATION None Prepared by: RESPECTFULLY SUBMITTED: Betty Williams Director of Management & Public Information Janie McLeod, Management Assistant Parks and Recreation Department 'lJ S] TVof NORTH lET. S Intercollegiate Athletics March 4, 2004 Dear Denton City Council: On behalf of the University of North Texas Athletic Department, please a~ept this letter as a formal request to play music and operate pubhc address at Denia Park. The dates I am requesting to perform these ~ctions are March 28, April 18 and April 25. In response to parking complaints from the softball tournament on February 20 - 22 2004, we now require each team, all coaches and all event staff to park in the large lot at Denia Park. In ad~tion, the UNT police officer assigned to work the toumament in March will direct fans to a parking lot instead of Parvin Street. Thc UNT Athletic Department will alu place a sign at each entrance ofthe small parking lot directing fans to the large lot. If there are further questions or issues that need to be addressed, please don't hesitate to contact me at 940-369-'/644. Sincerely, David Sweeten Assistant Athletic Director University of North Texas 77~e leading #nive~ity of the Dallas-Fort Worth region EO. Box 31 ! 397 * L~mon, ~t~ 76203-1397 * (940) 5{~5-2662 '['rY (80o) RElaY TX * ~xav. unt.edu AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 23, 2004 Materials Management Kathy DuBose ~% Questions concerning this acquisition may be directed to Ross Chadwick 349-8830 SUBJECT Consider adoption of an Ordinance awarding a contract for the purchase of audiovisual equipment for the City of Denton Fire Department 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 3136 - Purchase of Audiovisual Equipment awarded to Schoolhouse Audio-Visual in the amount of $44,278.30). FILE INFORMATION The audiovisual equipment requested for the Central Fire Station will greatly enhance the Fire Department's training capabilities. Currently there is no audiovisual equipment installed in the large or smaller training rooms. The Fire Department would like to purchase the following equipment: two projectors (one for each of the two smaller training rooms), a document reader for the large training room that can be moved between the other two training rooms as needed, and a computer and sound system that will facilitate quality presentations; both visually and orally. The sound system will include a podium with microphones as the central control area. This equipment is vital to the training operations within the Fire Department. RECOMMENDATION We recommend the award of File 3136 to Schoolhouse Audio-Visual in an amount not to exceed $44,278.30. PRINCIPAL PLACE OF BUSINESS Schoolhouse Audio-Visual Piano, Texas ESTIMATED SCHEDULE OF PROJECT Installation of the equipment will be processed upon receipt of order. Agenda Information Sheet March 23, 2004 Page 2 FISCAL INFORMATION Funding for these items 100081438.1355.30100. will be provided from Fire Department project number Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Schoolhouse Audio-Visual Quotation and CISV Certification 1 -AlS-File 3136 ~ccachmen~ ! Project Name: Company: Phone: Sales Price Quotation Portable Projection Unit Denton Fire Department 940-349-8873 Fax: 940-349-8874 Qty. ,,, Descri,p, tion Cost Each , Extension 1 Eiki LC-XNB5M 2500 ANSI Lumen Notebook Projector 2,995.00 2,995.00 1 Draper 80" Diagonai Traveller Screen (70.5" Long when closed) 420.00 420.00 1 Eiki Hard Tilt n Roll Projector Travel Case 390.00 390.00 1 Padded carrying case for the 80" Traveller screen 82.50 82.50 "Prices are at or below CISV Catalog pricing" - - Total for Portable Projection Unit and Accessories Prepared by Greg White 2/4/2004 Confidential Page 1 $3,887.50 SalesPriceQuotation Project Name: Elmo for Third Training Room Company: Denton Fire Department Phone: 940-349-8873 Fax: 940-349-8874 Q!¥. ' Descripti'0n ',, Cost Each "Extension 1 Elmo HV-5100 XG Digitat Visual Presenter 2,500.00 2,500.00 "Prices at or Delow CISV Catalog pdclr~g" Prepared by Greg White 2/4/2004 Confidential Pag~ 2 System Total 2,500.00 Sales Price ( uotation Project Name: Operations Conference Room Company: Denton Fire Department Phone: 940-349-8873 Fax: 940-349-8874 Qty. " ' Descrip!ion , Cost Each ,E~tension Projector - 1 Eiki LC-XG210 3500 ANSI Lumen Data/Video Projector 4,400.00 4,400.00 Mounting Hardware - - 1 Custom Schoolhouse Audio Visual Mounting Kit to include: 725.00 725.00 Chief RPA Series Projector Mount with All Points Security Kit - - Chief CMA 330 Ceiling Flange w/Support Strut - - Custom Length Down Pipe - - 50' Plenum Cable Set to connect wall plate to projector - - 15' Jumper Cable set to connect Lectern to wall plate Custom Wall Plate - - Audio System - 2 JBL Control 25 two-way watf mounted loudspeakers 110.00 220.00 1 Kramer 903 10 watt per channel projector mounted amplifier 175.00 175.00 Auxiliary Video Equipment 1 Elmo HV-5100 XG Digital Visual Presenter 2,500.00 2,500.00 1 RCA DR 6200 N DVD/VCR Combination Unit 185.00 185.00 1 InterLink RF Remote Point Keyboard and Mouse Combo 227.50 227.50 Lectern and Support Equipment 1 ~Radius 27" Carpeted Corner Lectern to include: 2,400.00 2,400.00 ~17 space equipment rack Fold down shelf on both sides 9 outlet power distribution center shelves for the DVD/VCR and the Computer Labor 1 Complete Integration of the above Audio Visual System 1,400.00 1,400.00 Optional Control System - 1 Extron Media Link Controller Model # MLC-206 AAP 994.50 994.50 1 Extron Media Link DVD/VCR DVD-VCR Controller Model # IRCM-DV+ 318.50 318.50 1 Extron Media Link 6 Input Switcher Model Ct MLS-406 1,183.00 1,183.00 1 50' RS 232 Projector Control Cable w/15' Jumper Cable 97.50 97.50 1 Additional Labor to Integrate Control System 400.00 400.00 System Total w Control System ,Above ~)ricin_q. is. at or below CISV Cataloo nrice" PreparedlSy Greg'Whae 2/412004 C-6nfic]c~hfial Page 3 $ 15,226.00 Project Name: Company: Phone: Fax: Community Room System Denton Fire Department 940-349-8873 940-349-8874 Description Cost Each Extension "Below Prices are at or below CISV catalog prices" Projector Eiki LC-X50M 4500 ANS~ Lumen Data/Video Projector Mounting Hardware Custom Schoolhouse Audio Visual Mounting Kit to include: Chief RPA Series Projector Mount with All Points Security Kit Chief CMA 330 Ceiling Flange w/Support Strut Custom Length Down Pipe ~50' Plenum Cable Set to connect wall plate to projector 15' Jumper Cable set to connect Lectern to wall plate Custom Wall Plate Control and Switching Extron Media Link Controller Model # MLC-206 AAP Extron Media Link DVD/VCR DVD-VCR Controller Model # 1RCM-DV+ Extron Media Link 6 Input Switcher Model # MLS-406 50' RS 232 Projector Control Cable w/15' Jumper Cable Sound System JBL Control 26CT High Performance Ceiling Monitors TOA A-912MK2 Mixer / Amplifier 120 watt 8 modular inputs Input Modules for the TOA Mixer Amplifier Shure LX1288/58 Dual VHF Microphone Receiver w/Mics. 250' Spool of 16/2 Plenum Rated Speaker Cable Auxiliary Video Equipment Elmo HV-5100 XG Digital Visual Presenter RCA DR 6200 N DVD/VCR Combination Unit InterLink RF Remote Point Keyboard and Mouse Combo Lectern and Support Equipment Radius 27" Carpeted Corner Lectern to include: 17 space equipment rack Fold down shelf on both sides 9 outlet power distribution center shelves for the DVD/VCR and the Computer Labor Complete Integration of the above Audio Visual System 6,195.00 725.00 994.50 318.50 1,183.00 97.50 126.75 643.50 57.20 747.50 45.00 2,500.00 185.00 227.50 2,400.00 2,400.00 Prepared by Greg White 2/4/2004 System Total with the X50M Confidential Page , 4 6,195.00 725.O0 994.50 318.50 1,183.00 97.50 1,014.00 643.50 228.80 747.5O 45.00 2,500.00 185.00 227.50 2,400.00 2,400.00 19,9O4.8O Sales Price ( uotation Project Name: Digital Camcorder Company: Denton Fire Department Phone: 940-349-8873 Fax: 940-349-8874 Qty. , , I~e,scription " Cos't Each Ex{ension 1 Canon GL2 Professional 3 CCD Mini DV Camcorder 2,485.00 2,485.00 1 Custom locking hard case for the GL2 and accessories 275.00 275.00 "Above prices are at or below CISV catalog pricing" - Prepared by Greg White 2/4/2004 System Total with hard case Confidential Page _5 2,760.00 ORDINANCE NO. AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF AUDIOVISUAL EQUIPMENT FOR THE CITY OF DENTON FIRE DEPARTMENT 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 3136-PURCHASE OF AUDIOVISUAL EQUIPMENT AWARDED TO SCHOOLHOUSE AUDIO-VISUAL IN THE AMOUNT OF $44,278.30). 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 3136 Schoolhouse Audio-Visual $ 44,278.30 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 ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3 -ORD-File313 6 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 23, 2004 Materials Management Kathy DuBose ~G Questions concerning this acquisition may be directed to Sharon Mays 349-8487 SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas authorizing the expenditure of funds for payments by the City of Denton for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3150-Electrical Energy Transmission Fees in the total amoum of $1,527,831). BID INFORMATION There are ten purchase orders that reflect the estimated cost of transmission of electrical energy from the generation source to the Denton Municipal Electric Distribution System for January 2004 through September 2004. The purchase orders are for paymem of a fee imposed by the Public Utility Commission of Texas (PUCT) for planned transmission services of energy delivered to the City of Denton. The Public Utility Regulatory Act of 1995 (PURA 95) required the developmem of a new, statewide mechanism for electric transmission service in Texas. PURA 95 also placed municipal utilities under the jurisdiction of PUCT for matters related to transmission. As a result, the Denton Municipal Electric Utility has been ordered by the PUCT to pay various other electric utilities in the State specific amoums. The subject purchase orders provide the City of DeNon the authority required by the City Charter to make those paymems. These purchase orders will encumber funds estimated as costs for services through September 30, 2004. No funds will actually be spem umil invoices are received, reviewed, and approved. There are also four purchase orders that are final "true up" paymems for the period from October 2003 through December 2003. The initial purchase orders approved at the beginning of the year were based on the estimated cost of energy transmission, therefore the actual cost for each location can be higher. RECOMMENDATION We recommend approval as follows: American Electric Power American Electric Power American Electric Power West Texas Utilities City of Austin Electric Utility Brazos Electric Power Coop, Inc. City Public Service CNP Energy CNP Energy $156,816 $26,200 (True Up) $56,227 $51,347 $65,953 $57,233 $283,611 $58,095 (True Up) Agenda Information Sheet March 23, 2004 Page 2 Oncor Transmission Division Oncor Transmission Division Lower Colorado River Authority Lower Colorado River Authority South Texas Electric Coop Inc. Texas Municipal Power Agency $313,631 $37,849 (True Up) $242,935 $81,431 (True Up) $35,462 $61,041 PRINCIPAL PLACE OF BUSINESS City of Austin Electric Util. Brazos Electric Power Coop. Austin, TX Waco, TX City Public Service San Antonio, TX CNP Energy Houston, TX Texas Municipal Power Agency Bryan, TX Oncor Transmission Div. Dallas, TX South TX Electric Coop. Nursery, TX American Electric Power Columbus, OH Tx. Mun. Power Agency Bryan, TX FISCAL INFORMATION Funds to meet these regulatory fee obligations were budgeted in 2003-2004 budget account 600400.6072. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-File 3150 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE EXPENDITURE OF FUNDS FOR PAYMENTS BY THE CITY OF DENTON FOR ELECTRICAL ENERGY TRANSMISSION FEES TO THOSE LISTED CITIES AND UTILITIES PROVIDING ENERGY TRANSMISSION SERVICES TO THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (FILE 3150-ELECTRICAL ENERGY TRANSMISSION FEE IN THE TOTAL AMOUNT OF $1,527,831). WHEREAS, in order to comply with the legislative requirements contained in the Utility Regulatory Act of 1995, for the payment for energy transmission services fees, the City of Denton is required to pay such fees imposed by the Public Utilities Commission of Texas to ten listed utilities set forth in Exhibit "A": and WHEREAS, the City Manager has reviewed and recommended that the City Council approve and authorize the payment of such; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the expenditure of funds in the amount of $1,527,831 to be paid to the Listed Utilities in the specified amount shown on Exhibit "A", which is attached to and made a part of this ordinance for all purposes is hereby authorized. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PRO~Ty, CITL~ITORNEY BY: ~:"~: ....... 7:?'' ) ' i~'~ ...... 3-ORD-FILE 3150 EXHIBIT "A" American Electric Power American Electric Power American Electric Power West Texas Utilities City of Austin Electric Utility Brazos Electric Power Coop, Inc. City Public Service CNP Energy CNP Energy Oncor Transmission Division Oncor Transmission Division Lower Colorado River Authority Lower Colorado River Authority South Texas Electric Coop Inc. Texas Municipal Power Agency Total $156,816 $26,200 $56,227 $51,347 $65,953 $57,233 $283,611 $58,095 $313,631 $37,849 $242,935 $81,431 $35,462 $61,041 $1,527,831 (True Up) (True Up) (True Up) (True Up) AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 23, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Tom Shaw 349-7100 SUBJECT Consider adoption of an Ordinance authorizing the City Manager to accept an Imerlocal Agreement with the City of Oak Point, Texas to authorize participation in various City of Denton comracts for the purchase of various goods and services; authorizing the expenditure of funds therefore; and declaring an effective date (File 3147- Imerlocal Agreement with the City of Oak Poim, Texas). INTERLOCALAGREEMENT INFORMATION The Interlocal Cooperative Act, V.T.C.A. Government Code Chapter 791, authorizes respective participating governments to enter into joint contracts and agreements for the purchase of necessary materials, supplies, and services. Over the past several years, the City of DeNon and other entities have entered into cooperative purchasing agreements that have been highly beneficial to the taxpayers through anticipated savings. The attached agreement is an authorization of the City of Oak Point to participate in contracts awarded by the City of Denton and will remain in effect umil terminated by either party. This Interlocal Agreement will allow the City of Oak Point to utilize contracts for supplies and services competitively bid by the City of DeNon, Texas. ESTIMATED SCHEDULE OF PROJECT This agreemem is effective upon approval by the City of Demon, Texas and will remain in effect until terminated by either party. RECOMMENDATION We recommend this Interlocal Agreement be approved. FISCAL INFORMATION Each acquisition, based on this agreemem, will be funded by the City of Oak Poim and will have no impact on the City of Denton. Agenda Information Sheet March 23, 2004 Page 2 1-AlS-File 3147 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ACCEPT AN INTERLOCAL AGREEMENT WITH THE CITY OF OAK POINT, TEXAS TO AUTHORIZE PARTICIPATION IN VARIOUS CITY OF DENTON CONTRACTS FOR THE PURCHASE OF VARIOUS GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND DECLARING AN EFFECTIVE DATE (FILE 3147- INTERLOCAL AGREEMENT WITH THE CITY OF OAK POINT, TEXAS). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute the attached Interlocal Agreement, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~:::':' :'~ ~.,, 'i 2-ORD-Interlocal Agreement With City of Oak Point INTERLOCAL COOPERATIVE PURCHASING AGREEMENT BETWEEN CITY OF OAK POINT, TEXAS AND CITY OF DENTON, TEXAS STATE OF TEXAS COUNTY OF DENTON THiS AGREEMENT is made on the day of ., 2004, between the City of Oak Point, Texas, and the City of Denton, Texas; each referred to herein as "participating governments." WHEREAS, the respective participating governments are authorized by the Interlocai Cooperation Act, V.T.C.A. Government Code, Chapter 791, to enter into joint contracts and agreements for the performance of govemmental functions and services including administrative functions normally associated with the operation of government such as purchasing of necessary materials and supplies; WHEREAS, it is the desire of the aforesaid participating governments to comply with and further the policies and purpose of the Interlocal Cooperation Act; and WHEREAS, the participating governments cannot normally obtain the best possible purchase price for materials and supplies acting individually and without cooperation; and WHEREAS, it is deemed in the best interest of all participating governments that said governments do enter into a mutually satisfactory agreement for the purchase of certain materials and supplies; and WHEREAS, the parties, in performing governmental functions or in paying for the performance of governmental functions hereunder shall make that performance or those payments from current revenues legally available to that party. NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and conditions contained herein and pursuant to the authority permitted under the Interlocal Cooperation Act, promise and agree as follows: Purpose The purpose of this Agreement is to authorize participation of the City of Oak Point, Texas in various City of Denton, Texas contracts for the purchase of various goods and services. Participation in this cooperative program will be highly beneficial to the taxpayers of the City of Oak Point through anticipated savings to be realized. INTERLOCAL COOPERATIVE PURCHASING AGREEMENT u:\purchaslng\ILA-city of denton purchasing.doc Page 1 INTERLOCAL COOPERATIVE PURCHASING AGREEMENT II. Duration of Agreement This Agreement shall be in effect from the date of execution until terminated by either party to the agreement. III. Relationship of Parties It is agreed that the City of Oak Point, in receiving products and/or services specified in this agreement, shall act as an independent purchaser and shall have control of its needs and the manner in which they are acquired. Neither the City of Oak Point, its agents, employees, volunteer help nor any other person operating under this contract shall be considered an agent or employee of City of Denton and shall not be entitled to participate in any pension plans or other benefits that City of Denton provides its employees. City of Denton shall notify ali participating entities of available contracts to include terms of contract, commodity cost, contact names and addresses. City of Denton shall keep participating governments informed of all changes to the Cooperative Purchasing list of contracts. Nothing in this agreement shall prevent any participating government from accepting and awarding bids for commodities subject to this agreement individually and in its own behalf. Julie M. Johnston, City Manager, is hereby designated as the official representative to act for the City of Oak Point in all matters relating to this agreement. Purchase of Goods and Services All products and services shall be procured by City of Denton in accordance with procedures governing competitive bids and competitive proposals. The participating government will be able to purchase from those contracts established by City of Denton where notice has been given in the specifications and successful bidder has accepted terms for Cooperative Purchasing Agreements for local governments. The participating governments hereto agree that the ordering of products and services through this agreement shall be their individual responsibility and that the successful bidder or bidders shall bill each participating government directly. INTERLOCAL COOPERATIVE PURCHASING AGREEMENT Page 2 u:\purchasing\lLA-city of denton purchasing.doc INTERLOCAL COOPERATIVE PURCHASING AGREEMENT IVt Purchase of Goods and Services (Continued) The participating governments agree to pay successful bidders directly for all products or services received from current revenues available for such purchase. Each participating government shall be liable to the successful bidder only for products and services ordered by and received by it, and shall not by the execution of this agreement assume any additional liability. City of Denton does not warrant and is not responsible for the quality or delivery of products or services from successful bidder. The participating government shall receive all warranties provided by successful bidder for the products or services purchased. In the event that any dispute arises between individual participating government and a successful bidder, the same shall be handled by and between the participating government body and the bidder. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their authorized officers thereon the day and the year first above written. CITY OF OAK POINT, TEXAS CITY OF DENTON, TEXAS By: Michael D. Conduff City Manager INTERIX~AL COOPERATIVE PURCHASING AGREEMENT Page 3 u:\purchasing~JLA-city of denton purchasing.doc AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 23, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works contract for an annual price agreement for chip sealing of city streets; providing for the expenditure of funds therefore; and providing an effective date (Bid 3143-Annual Price Agreement for Chip Sealing awarded to Joe Sullivan, inc. in the annual estimated amount of $310,000). BID INFORMATION This bid is for the annual contract to supply chip sealing of the city streets. Chip seal is a process in which asphalt emulsion is applied to the surface of the road, then covered by a specified crushed rock and compacted with a roller. The process is then repeated, resulting in a new asphalt road. This contract is intended to repave roads on the west side of town that have been damaged by heavy truck traffic. Potential roads include Jim Christal Road, Tom Cole Road, Thomas Egan Road, Lake Ray Roberts, Burger Road, Corbin Road, Westcourt, Bonnie Brae Street, Roselawn Street, and Mission Street. Other areas may be added as funding permits. RECOMMENDATION We recommend this annual contract be awarded to the lowest responsible bidder, Joe Sullivan, inc. in the amount of $2.054/square yard. PRINCIPAL PLACE OF BUSINESS Joe Sullivan Melissa, TX ESTIMATED SCHEDULE OF PROJECT This contract shall remain in effect through April 1, 2005 and may be extended for additional one-year periods. Agenda Information Sheet March 23, 2004 Page 2 FISCAL INFORMATION Funding for Jim Christal Road will be provided from project number 350120443 and funding for Masch Branch Road will be provided from project number 350119443. The remaining streets will be charged to individual project accounts at the time of service. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3143 Bid # 3143 Attachment 1 Date: 3/9/04 Annual Price Agreement for Chip Sealing l ~loe Sulhvan, [nc. Constuction II Princ pe Place of Business'. Melissa, TX Ft. Worth, TX A d d e d U m Y es Y es ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR AN ANNUAL PRICE AGREEMENT FOR CHIP SEALING OF CITY STREETS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 3143-ANNUAL PRICE AGREEMENT FOR CHIP SEALING AWARDED TO JOE SULLIVAN, iNC. iN THE ANNUAL ESTIMATED AMOUNT OF $310,000). 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 3143 Jim Sullivan, Inc. $2.054/sq.yd. 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 .,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3143 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 23, 2004 Materials Management Kathy DuBose Questions concerning this acquisition may be directed to Cary Tower 349-8424 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a contract for the purchase of fleet vehicles; providing for the expenditure of funds therefore; and providing an effective date (Bid 3135-Fleet Vehicles 2004 awarded to the lowest responsible bidder for each item in the amount of $482,963.35). BID INFORMATION This bid is for the purchase of fleet vehicles for various City departments. The following are for vehicle replacements approved in the FY 2003-04 budget. These are funded by accumulated Motor Pool replacement funds. Several criteria are used to evaluate need for replacement including maintenance costs, age of vehicle, and mileage. · Electric Metering 2 - ½ ton regular cab · Electric Communications 1 - ½ ton extended cab · Water Treatment 1 - ½ ton regular cab · Electric Communications 1 - 3/4 ton extended cab · Electric Distribution 1 - 1 ton cab/chassis w/flatbed/gooseneck body · Electric Substations 2 - 3/4 ton crew cab 1 - 1 ton cab/chassis w/utility body/crane · Water Production 1 - 3/4 ton crew cab · Solid Waste 1 - 3/4 ton crew cab · Water Distribution 1 - 1½ ton cab/chassis super duty · Wastewater Collection 1 - 1 ½ ton cab/chassis w/service utility bed · Public Information Office 1 - mini van - seven-passenger The following are additions to the fleet approved in FY 2003-04 budget: · Electric Metering 1 - ½ ton short bed · Watershed Protection 1 - ½ ton crew cab pickup · Water Production 1 - ½ ton crew cab pickup · Safety & Training 1 - ½ ton extended cab Electric, Water, and Utilities Safety and Training: Vehicle requirements to support system growth, safety training, and the new gas well inspection/permit program. Agenda Information Sheet March 23, 2004 Page 2 · Parks Maimenance 1 - ½ ton long bed pickup 1 - 3A ton extended cab pickup 1 - 1 ton extended cab w/utility bed pickup Parks: Vehicles were the only General Fund additions approved in the FY 2003-04 budget. These were programmed in the Long Range Financial Plan to support the additional Parks requirements approved in the 2000 CIP. · Solid Waste 2 - 3A ton crew cab These will be to support recycling operations. · Community Developmem 1 - Hybrid car 4-door sedan (gram funded) The hybrid vehicle will be utilized for inspections of housing rehabilitation and demolitions. RECOMMENDATION We recommend the bid be awarded to the lowest responsible bidder for each item as listed below. Item Desc.(See Tab) Qty. Supplier Price +Options* Net Each Total 1. ½ TnPickup 4 PhilpottFord $12,078.00 $12,078.00 $48,312.00 2. ½ TnPickup 3 Five Star Ford $14,299.10 $652.00 $14,951.10 $44,853.30 3. ½ TnPickup 1 LonghomDodge $16,150.00 $16,150.00 $16,150.00 4. ½ TnPickup 2 Philpott Ford $12,648.00 $12,648.00 $25,296.00 5. 3/4 TnPickup 1 Texas Motors Ford $17,432.00 $456.00 $17,888.00 $17,888.00 6. 3/4 TnPickup 1 LonghomDodge $19,305.00 $19,305.00 $19,305.00 7. 3/4 TnPickup 2 Longhorn Dodge $22,755.00 $1,394.00 $24,149.00 $48,298.00 3/4 TnPickup 1 LonghomDodge $22,755.00 $1,491.00 $24,246.00 $24,246.00 8. 3/4 TnPickup 1 Texas Motors Ford $18,261.00 $18,261.00 $18,261.00 9. 3/4 TnPickup 1 Pilot PoimFord $22,913.00 $22,913.00 $22,913.00 10. 1 Tn. Cab 1 Texas Motors Ford $24,241.00 $24,241.00 $24,241.00 11. 1 Tn. Cab 1 Five Star Ford $26,861.05 $26,861.05 $26,861.05 12. 1 ½ Tn. Cab 1 Texas Motors Ford $42,000.00 $456.00 $42,456.00 $42,456.00 13. 1 ½ Tn. Cab 2 Texas Motors Ford $32,863.00 $32,863.00 $65,726.00 14. MiniVan 1 Forrest Chevy,Olds $18,193.00 $18,193.00 $18,193.00 15. Hybrid Vehicle 1 PhilpottFord $19,964.00 $19,964.00 $19,964.00 Total Amount for 24 Vehicles: *Options include extended warranty and power windows and locks for Items 2, 5, and vehicles are powered by LEV rated gasoline or diesel engines. $482,963.35 12. All Agenda Information Sheet March 23, 2004 Page 3 PRINCIPAL PLACE OF BUSINESS Pilot Point Ford Pilot Point, TX Forest Chevy, Olds, Dodge Dallas, TX Five Star Ford Carrollton, TX Texas Motors Ford Philpott Ford Fort Worth, TX Nederland, TX Longhorn Dodge Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT Delivery schedules vary by vendor and type of vehicle with delivery dates ranging from 45 days to 120 days. FISCAL INFORMATION These units will be funded from Motor Pool Fixed Asset Fund account 810001.8535. This fund is made up of an accumulation of Motor Pool replacement funds and proceeds from the auction of City vehicles and equipment. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3135 X X X X ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF FLEET VEHICLES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3135-FLEET VEHICLES 2004 AWARDED TO THE LOWEST RESPONSIBLE BIDDER FOR EACH ITEM iN THE TOTAL AMOUNT OF $470,885.35). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER ITEM VENDOR AMOUNT 3135 1,4,15 Philpott Ford $81,494.00 3135 2,11 Five Star Ford $71,714.35 3135 3,6,7 Longhorn Dodge $107,999.00 3135 5,8,10,12,13 Texas Motors Ford $168,572.00 3135 9 Pilot Point Ford $22,913.00 3135 14 Forrest Chevy,Olds $18,193.00 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3135 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 23, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Cary Tower 349-8424 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a contract for the purchase of fleet heavy equipment; providing for the expenditure of funds therefore; and providing an effective date (Bid 3138-Fleet Heavy Equipment 2004 awarded to the lowest responsible bidder for each item in the amount of $224,425.48). BID INFORMATION This bid is for the purchase of one skid steer loader and trailer with beaver tail and ramps, one hydraulic excavator, and three loader/backhoes with extendable dipper booms. The skid steer loader is for the Water Distribution Division to backfill trench excavations. The hydraulic excavator and one loader/backhoe will be assigned to the Electric Distribution Division. The other two loader/backhoes will be assigned to the Water Distribution and Wastewater Collection divisions and are being purchased with a 36 month guaranteed buy back agreement. The Water Utility backhoes are replacements for similar units purchased in 1995 and 1996 that were determined to be no longer economical to repair. The backhoes are powered by an EPA Tier II compliant diesel engine. RECOMMENDATION We recommend this bid be awarded to the lowest responsible bidder based upon net cost after the 36-month buy back agreement is exercised. Deduct for Outright 36-Month Total Item# Q.ty Description Supplier Purchase Price BuyBack Net Cost 1 1 Skid Steer Loader Bobcat of Denton $ 23,015.32 N/A $23,015.32 lA 1 Trailer Interstate Trailers $ 3,199.00 N/A $ 3,199.00 2 1 Hydraulic Exc. Bobcat of Denton $ 17,761.16 N/A $17,761.16 3 3 Loader/Backhoe Continental Equip. S180,450.00 ($81,686.40) $98,763.60 $224,425.48 ($81,686.40) $142,739.08 At the end of 36 months, Continental Equipment Co. will buy back the loader/backhoes for $27,228.80 each. Item 4-Loader/backhoe with standard boom will not be awarded. The quotation of Item 3 has been increased by one unit. Agenda Information Sheet March 23, 2004 Page 2 PRINCIPAL PLACE OF BUSINESS Bobcat of Denton Denton, TX Interstate Trailers Mansfield, TX Continental Equipment Company, L.P. Dallas, TX ESTIMATED SCHEDULE OF PROJECT Delivery can be accomplished within approximately 60 days from receipt of an order for all items. FISCAL INFORMATION This total acquisition will be funded from Motor Pool account 810001.8535. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 3138 3333333333333333 3333333333333333 3333333333333333 0 3333333333333333333 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF FLEET HEAVY EQUIPMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3138-FLEET HEAVY EQUIPMENT 2004 AWARDED TO THE LOWEST RESPONSIBLE BIDDER FOR EACH ITEM IN THE AMOUNT OF $224,425.48. 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 NUMBER VENDOR AMOUNT 3138 1 Bobcat of Denton $23,015.32 3138 lA Interstate of Trailers $ 3,199.00 3138 2 Bobcat of Denton $17,761.16 3138 3 Continental Equipment $180,450.00 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~--~;:~:::':i" - ': 3-ORD- Bid 3138 AGENDA INFORMATION SHEET AGENDA DATE: March 23, 2004 DEPARTMENT: CM/DCM/ACM: Police Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas amending article IV entitled "Stopping, Standing, and Parking" of the Motor Vehicles and Traffic Chapter of the Code of Ordinances of the City of DeNon, Texas by amending Section 18-104(a) relating to storage and impoundmem fees for impounded vehicles; amending Article IV entitled "Police-Initiated Towing Services" of the Police Chapter of the Code of Ordinances of the City of DeNon, Texas by amending Section 23-87 to establish a standard tow fee and an additional charge if dollies are used and declaring an effective date. BACKGROUND This item consists of a proposed ordinance to increase the wrecker fee for police-initiated tows to $80.00 and increase the notification fee to $32.00. In 1999, City Ordinance 99-310 was approved increasing the fee for police-initiated vehicle tows from $40.00 to the currem $50.00. This towing fee is collected from the owner of the vehicle at the time the vehicle is released and then forwarded to the wrecker company that provided the tow. The increased price of diesel fuel, insurance, and equipmem has resulted in an increase in operating expenses for wrecker companies. Additionally, on September 1, 2003, a state law went into effect that limits the fee for private tows to 150% of that fee charged by the local police department in cities, such as Denton, that do not regulate the fees for private tows. Therefore, the fee prescribed for police-initiated tows limit the amount that wrecker companies can charge for private tows in DeNon to $75.00. A recem survey of towing fees in area cities, including Lewisville, Dallas, Ft. Worth, Arlington, and Plano, revealed that fees range from $75.00 to $95.00. Staff recommends that the current fee be increased to $80.00 for police-initiated tows. Additionally, Section 18.87 of the Motor Carrier Rules and Regulations requires that notification must be made to the last known registered owner and all recorded lien holders of an impounded vehicle by certified or registered mail within five days of accepting the vehicle for storage. Section 18.93 of the Motor Carrier Rules and Regulations allows for the collection of a notification fee from the owner of an impounded vehicle. Ordinance 99-310 set the notification fee at the state allowed maximum of $25.00 and authorized its collection. Since that time, the cost of certified and registered mail has increased. On September 1, 2003, the State increased the maximum notification fee allowed to $32.00. The proposed Ordinance increases the notification fee to $32.00 to recover the increased costs of the required notification. PRIOR ACTION/REVIEW: None. FISCAL IMPACT: This Ordinance will not result in any additional expenditure as the services are already being provided. Based on prior year activity, the increase in the notification fee will result in estimated $5,000.00 additional revenue. The increase in the towing fee will not affect the budget. Respectfully submitted, Charles Wiley Chief of Police Prepared by: Joanie Housewright Captain Operations Bureau S:Our Docunlmlt~Ordinance~04 Towing Fee Ordinance doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING ARTICLE IV ENTITLED "STOPPING, STANDING, AND PARKING" OF THE MOTOR VEHICLES AND TRAFFIC CHAPTER OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS BY AMENDING SECTION 18-104(a) RELATING TO STORAGE AND IMPOUNDMENT FEES FOR IMPOUNDED VEHICLES BY INCREASING THE NOTIFICATION FEE; AMENDING ARTICLE IV ENTITLED "POLICE-INITIATED TOWING SERVICES" OF THE POLICE CHAPTER OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS BY AMENDING SECTION 23-87 TO INCREASE THE STANDARD TOW FEE;; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to increase these fees; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1_ That Section 18-104(a) of the Code of Ordinances of the City of Denton, Texas is hereby amended to read as follows: Sec. 18-104. Impoundment of standing or parked vehicles. (a) A vehicle removed and towed under the authority of Vemon's Texas Transportation Code Annotated, Section 545.305 shall be kept at the place designated by the police department until application for redemption is made by the owner or his authorized agent or other person legally entitled to possession of the vehicle. The police department shall require adequate proof of ownership or proof of the right to possession of the vehicle. The fees for towing and storage of vehicles are as follows: (1) Towing Fees. Towing fees shall be as established in Chapter 23, Article IV of this Code. (2) Storage fees_ Storage fees for any vehicle shall be fifteen dollars ($15.00) per day, or any part of a day, after the first twenty-four hours. (3) Impound fee. The impoundment fee shall be fifteen dollars ($15.00). (4) Notification fee. The notification fee for any towed vehicles registered in the State of Texas shall be thirty-two dollars and shall be charged to the registered owner of the vehicle. Notification will be sent to the vehicle's last registered owner and all recorded lienholders by certified or registered mail no sooner than twenty-four hours after receipt of the vehicle and no later than five days after receipt of the vehicle. ~ That Section 23-87 of the Code of Ordinances of the City of Denton, Texas is hereby amended to read as follows: S:Our Docunlmlt~Ordinance~04 Towing Fee Ordinance doc Sec. 23-87. Fees charged; bills. The towing fee for any vehicle shall be eighty dollars ($80.00) with an additional twenty- five dollar ($25.00) charge if dollies are used. SECTION 3 That if any provision of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4_ That all provisions of the ordinances of the City of Denton in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Denton, not in conflict with the provisions of this ordinance, shall remain in full force and effect. ~ 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 ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EUL1NE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning Departmem Jon Fortune, Assistam City Manager SUBJECT - ADP04-0001: (Prairie Oaks II) Consider adoption of an ordinance concerning an Alternative Developmem Plan for approximately 0.20 acre site curremly zoned Dowmown Residemial 2 (DR-2). The site, commonly known as 924 West Prairie Street, is generally located north of Prairie Street between Bernard and Welch streets. A six-unit apartment complex is proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Irwin Realty Group DeNon, TX The purpose of alternative development plans is to provide a mechanism for those developments that do not meet the site design standards as outlined in the Development Code; but nevertheless, meet or exceed the objectives of the DeNon Plan and Developmem Code. The applicant is proposing to vary from the site design standards concerning parking between the street and the proposed building. § 35.13.13.2.A. 1 .c. (Oriemation for Multiple Unit Residemial Buildings) states: "Parking areas shall not be located between buildings and the street. Parking lots may be located on the sides and behind the buildings." The applicant is proposing to construct a six-unit apartment with the parking lot located between the building and the street. OPTIONS 1. Approve 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW N/A ATTACHMENTS 1. Staff Analysis 2. Maps 3. Alternative Development Plan 4. Backup Information from the Applicant 5. February 25, 2004 Planning and Zoning Commission Minutes 6. Ordinance Prepared by: ASLA, AICP Assistant Planning Director Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Alternative Development Plan Request The applicant is proposing to vary from the site design standards concerning parking lot location. § 35.13.13.2.A.l.c. states: "Parking areas shall not be located between buildings and the street. Parking lots may be located on he sides and behind the buildings." The intent of this requirement is to create a streetscape and lessen the impact of parking lots along streets. The applicant also owns the adjacent apartment building to the west (930 Prairie St.). That development was constructed prior to the adoption of the Development Code and has parking between the building and the street. The applicant is proposing to expand that parking lot in front of the proposed development, utilize or share the existing curb cut (entrance) to that parking lot for both developments and construct a 3' high wrought iron fence with masonry columns (Attachment 3) across both properties. Attachment 4 contains the applicant's justification for the request. Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Downtown Residential 2 (DR-2), zoning district and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, this property was zoned Commercial (C) and Multi-family (MF- 1 c). North: Downtown Residential 2 (DR-2),. South: Downtown Residential 2 (DR-2). East: Downtown Residential 2 (DR-2). West: Downtown Residential 2 (DR-2). Comprehensive Plan Analysis The subject site is located in the "Downtown University Core District" future land use area. This area is intended to have a mix of educational, residential, retail, office, service, government, cultural and entertainment development. It is a place where residents can live, work, learn, and play in the same neighborhood. The proposed development is consistent with the Denton Plan. Development Code/Zoning Analysis Section 35.13.5 (Alternative Development Plan) states, "An applicant may propose an Alternative Development Plan which meets or exceeds the design objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Development Plan provides the option to address the design criteria through a flexible discretionary." Section 35.13.5.A. Development Plan. 1. (listed below) identifies the criteria for approval of an Alternative Preserve Existing Neighborhoods. The adjacent property is currently developed with a parking lot between the building and the street, which the applicant is proposing to expand for this development. By utilizing he existing curb cut, the applicant is reducing the number of driveways on Prairie. The proposed 3' high wrought iron fence with masonry columns will be constructed across both properties creating a uniformed appearance along the street. Additionally, the property across the street is a parking lot for the University of North Texas. The proposed development will enhance the existing character of the neighborhood. Assure quality development that fits in with the character of Denton. With the exception of the parking lot location, the proposed development meets the criteria of the Development Code. The proposed open style fencing across two developments, and reducing the number of driveways provides for a quality development that fits with the character of Denton. Focus new development to activity centers to curb strip development and urban sprawl. The proposed development is infill. Ensure that infrastructure is capable of accommodating development prior to the development occurring. The infrastructure in the site area will be adequate to serve the proposed development. STAFF FINDINGS 1. The proposed development is infill. 2. The proposed development reduces the number of driveways on Prairie Street. 3. The applicant is proposing to construct a 3' high wrought iron fence with masonry columns along the frontage of two developments to offset the parking in front of both buildings.. 4. The proposed site design meets the intent of the development code. STAFF RECOMMENDATION Staff recommends approval of ADP04-0001. ATTACHMENT 2 Maps NORTH Location/Zoning Map Scale: None ATTACHMENT 2 Site Plan Enlarged Site Plan Elevation ATTACHMENT 4 Applicant's Justification Property Owner:: irwin ~ealty group B2~ 5. Carroll ~ivd. Denton, Texas 76201 subject: ~ec[uesf, for variance to allow parking area to align with adjacent parking area at ~0 ~rairie ~tree.t. train ~eai~ Sro~p also. ~ro~er~ies a~ t010 and 1018 Three of these properS, les each have their rem, uired parking located between the street and the multi-family dir~c~l~ behind the existin~ an~ proposed uni~$ and !oca~ed a~ q&~ and q~l ~hes~nu~ ~reeL each have ~rairie ~ree~ ~o~M be contiguous an~ share a common entry from ~he street (see Shee~ The two adjacent buildings could require a total of twenty four parking spaces depending, on the Fina! unit mix. ~enty three of these spies would be located on site whi!e two on-street spaces She ec[uivalent of one on-si~e space) ~ould be Iocate~ in Prairie ~ree~ direc~l~ op¢osi~e ~o ihs eubjec[ si[e. An existing dumpster site would' be shared by both for alt of the m~lti-famil~ on ~rairie and C~hestn~t streets have street side locations. A three ~eet hi~jh maeonry/wroueht iron and ~0 ~rairi~ ~ree~). approved so ~ha~ a uniform ~ree~cape can be achieve~ in conformi[~ ~i[h exi~[in~ properties in [his ~e~men[ 0¢ ~rairie I~JI[',4 RE,qLTY/PLRCE TO BE Addendum ~demimm to 924 W. Prairie Alte~te Developmem p~ Request Narrow lots ~¢ extren~ly diffieu!t to develop when the p~k~g is in ~he re~, For example, ~ 60 or 70 ~t ]o~ r~ui~s a minimum o¢ 30 to 34 fee~ for the 24 tbot ~v~wav pbs the 6 to l0 foot side yard se~ ~k. Not muc~ is le~ ~ ~ld on ~d less lot is lc~ f~r l~mdscap~g. Serenity al~ is an issue when the parking lot ~ in the rear. 10 12 12 13 14 I5 16 !7 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 9 i0 i I2 13 i6 17 19 20 1 2 3 4 5 7 9 10 1 2 3 14 15 16 17 18 ~19 20 PROCEEDINGS COMMISSIONER MULROY: Good evening, and welcome to thc Fc.bruaw~' 25th meeting of the City of Denton Plaoning and Zoning Commission. Wc'![ stmnt with the Pledge of Al[egience. (Thereupon, the Pledges of Allegiance were recke&) COMMiSSiONER MULROY: Thank you. TI;to next item on our Agenda is consider approval of ~he February I Ith minutes. Iv{r~ Johnson. COMMISSI[ONER JOHNSON: [ think there's one correction ti:at ne'xxts to be made under 5A on die minutes, It does not record the vote, although, the -- there is a recording in the Reportcr's minutes on page 52. The vote was 6-0. And if we can make that COiTeCtion, I'll move approval. COMMISSIONER STRANGE: SeCOlld, £OMMISSIONEP, MULROY; Motion by Mr. Johnson, s~onded by Mr. Strange as amended. ~f there's no farther diseussio~, please vote. Motion can'ies 7-0, Tile next item is tM Consent Agenda. Thc Plann. ing and Zoning Commission has review~xl fl~cse applications~ and has had at: opportunity to raise qt~cstions regarding these items prior to this Aitachment5'- Page 3 consideration, a naotion. Page 2 there's no discussion, we'll entertain 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ic) 20 21 22 23 24 25 COMMISSIONER ROY: 1 move approval. COMMISSIONER MULROY: Motion by Mr. Roy. COMMISSIONER ItOI.T: second. COMMISSIONER MULP. O¥: Second by Ms. ttolt for approval. If there's no discussion, please vote. Item carries 7-0. Next section of the Agenda, Section 4, first item is 4A fbr Alternative Development Plan for parking lot orientation for a six-unit apartment house. Mr. RdchI~art. MR. REICHHART: Thank you. On thc overhead is a site location. ~is is on the north side of Prairie between Bernard m~d Welch. Across the street is an existing UNT parking lot. Thc applicant also owns the ac[jacent multiq~mily development at 930 Prairie. pared bas the parking between tl2e building ar, d the strect. The applicant is requesting to devdop in a similar manner, apartmen~ in the back, parking in the tkonL Due to what they're proposing in order to do tear is to expand tl:e parking from the -- oh, the site plan located sideways, but I can get it on tt~e overhead -- but expand tt~e parking ih-om the ac~acent parcel across the 21 21 22 22 23 23 24 24 25 25 PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 existing parcel. Sham the common driveway betwc',en tile two parking lots reducing one driveway onto the stro& and then construct a wrought-iron fence wi~h stone cch.roms across both parking lots, thereby cro~ting a strmacape. And as a ikm:n of in-fill development and with the adjacent UNT -- Or the l~'r parking lot across the strut, staff believes that this is starting to ~ or does m~t the intent of the Code in t~'ing to get that in~fill to work. It does minimize curb cms and we are recommending approval. Thc applicant is hem to answer any questions if you have, but i'd be -- I'm available to answer any questions, also. COMMISSIONER MULROY: Any questions of ~'. Roichhart? Okay. Thank yon, Lan'y. If the2'e is no discussion or questions, we would entertain a motion. Mr. Powelt. COMMISSIONER POWELL: MOVe tO approw. COMMISSIONER ttOLT: second. COMMISSK)NER MULROY: Motion by M~'. POwoI1, s~ond by Ms. Holt for approval. If there is no further discussion, please, vote. Items carries 7-0, Next on thc Agenda, Item 4B, Alternale Development Plan for canopy coverage for proposed warehouse facility. Mr. Rdchhart. Page 4 MR. RE~Ci!!L,\ICI': Thank you+ Again, em ll~e oved~cad is the location map for fl~e snbjeat property. It is locat~d on the sond~ side of Cypress cast of Loop 288. Prior to the adoption of the Code, dss property was zoned industrial. Same owner of the Russell Newman facility proposing a wa~-chouse 9acility on INs si~e. They originally were looking at a site across the str~l right behind IJac warehouse or thc exisdng Russell Newman facility to construct this warehouse. They figtxcd tl:ey could tic those two a little bit. Due to some development constraints with utilities and drainage, ll~cy chose d~is site. The applican~ has submitted a landscapcx] plan. That"s ll~e proposed -- hem's the Code Compliant Landscape Plan. ThirD' percent tre~ canopy coverage is required within Gis zoning district. And if you recall within tlm t:mployment zoning district, there is a number of different uses that are allowmt from restaurants, offices, retail devclopment and some light industrial requiring a 30 percent tme canopy coverage, a ndnimum of 30 percent rrm canopy. So this is the plan that thc applicant did submit that mc~ts tlmt rm]uimment, They f~zl that the landscaping is very overcrowded and that they would to develop this silo plan. It's about, if' ~ r~all, t6 -- Page I - Page 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATWE DEVELOPMENT PLAN FOR LOT 13 BLOCK 4 OF THE COLLEGE ADDITION, BEING AN APPROXIMATE 0.20 ACRE SiTE LOCATED APPROXIMATELY NORTH OF PRAIRIE STREET BETWEEN BERNARD AND WELCH STREETS, COMMONLY KNOWN AS 924 WEST PRAIRIE STREET; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (ADP04-0001) WHEREAS, Dale Irwin, owner of an approximate 0.20 acre tract of land zoned Downtown residential 2 (DR-2) and legally described as Lot 13 Block 4 of the College Addition (the "Property") has made an application for approval of an alternative development plan under the Development Code regulations, a copy of which is attached hereto as Exhibit "A" and made a part hereof by reference (the "Alternative Development Plan"); and WHEREAS, on February 25, 2004 the Planning and Zoning Commission recommended approval of the Altemative Development Plan; and WHEREAS, the City Council finds that the Alternative Development Plan is consistent with the Comprehensive Plan; and, WHEREAS, the City Council finds that the Alternative Development Plan meets the requirements of the Development COde; 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 Alternative Development Plan for the Property is hereby approved. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 3. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 4.. 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 Page 1 of 2 published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this.the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. , CITY/TORNEY Page 2 of 2 Exhibit A AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, authorizing the Mayor to execute an Interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas for road improvemems for FM 2181; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND The attached ordinance and imerlocal agreemem have been drafted to describe the revised funding relationship between the City of DeNon and DeNon County regarding FM 2181 (Teasley Lane). The agreemem stipulates that DeNon County will expend $1.6 million toward the project, and the City of DeNon will expend $809,000 toward the project. Two project componems are underway: (1) the county and city have committed to compete the schematic plans and environmental assessment for FM 2181 extending from Lillian Miller in DeNon to the 1-35 Swisher Road imerchange in Corimh, and (2) the county and city have committed to complete the plans, specifications, and estimates (PS&E's) for the section of FM 2181 from Lillian Miller to Hickory Creek Road. This amendmem will provide funding to complete the PS&E's for the segment of the road from Hickory Creek Road to the southern City of DeNon city limits in the vicinity of Old Alton Road. Improvemems to FM 2181 are anticipated to expand the current 2-lane road to a 6-lane urban arterial. Once the engineering work is competed, approximately $1 million in county funds will remain to devote to actual construction. The North Cemral Council of Govemmems has approved this project for full funding. Upon City Council adoption, the County Commissioners must adopt the draft agreemem before it will be considered fully executed. The FM 2181 project is an example of a city-county transportation partnership that is working to aggressively address local needs and has competed successfully for the limited state and federal funds that are available. OPTIONS 1. Adopt the ordinance as drafted. 2. Make revisions to the agreement. 3. Postpone action for further deliberations. RECOMMENDATION Staff recommends adoption of the ordinance as drafted. ESTIMATED PROJECT SCHEDULE The engineering work is amicipated to be completed by the end of 2005. been tentatively set for the start of construction of the 6-lane expansion. A target goal of 2006 has PRIOR ACTION/REVIEW The City Council previously approved the initial Imerlocal agreemem on February 20, 2001 for an amoum of $450,000. The Teasley Lane Corridor Traffic Study was produced and reviewed by City Council in February, April, and May 2000. The need for expanded traffic capacity on FM 2181 is well-documemed and is considered a high priority to meet travel demand in southwest DeNon. FISCAL INFORMATION The county's $1.6 million project funding was allocated as part of the Better, Safer Roads Bond Program. The city's participation of $450,000 was allocated from existing bond funds from the 1999- 2004 Capital Improvemems Program. The additional funding of $359,000 will come from the same source and is curremly available in the FM 2181 PLANS, SPECS, ESTIMATE under the Project Number 351001 1443 ATTACHMENTS Draft Ordinance and Agreemem Respectfully submitted: Charles W. Fiedler, P.E. Director of Engineering ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON COUNTY, TEXAS FOR ROAD IMPROVEMENTS FOR FM 2181; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Mayor, or in her absence the Mayor Pro Tem, is hereby authorized to execute, on behalf of the City, an Interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas for road improvements for fin 2181, substantially in accordance with the Interlocal Cooperation Agreement which is attached hereto and incorporated by reference herein (the "Interlocal Cooperation Agreement'). SECTION 2. The expenditure of funds as set forth in the Interlocal Cooperation Agreement is hereby author/zed. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: S :\Our Documents\Otdinances\lnterlocal Agrmt-FM 2181 -Denton County. doc THE STATE OF TEXAS COUNTY OF DENTON INTERLOCAL COOPERATION AGREEMENT FOR ROAD IMPROVEMENTS TO FM 2181 BETWEEN THE CITY OF DENTON AND DENTON COUNTY~ TEXAS THIS AGREEMENT is made and entered into by and between Denton County, Texas, a political subdivision of the State of Texas, hereinafter referred to as "County" and the City of DENTON, Texas, a corporate and political body organized and existing under the laws of the State of Texas, hereinafter referred to as "City". This Agreement is for purposes of the completion of certain road improvements to FM 2181, hereinafter referred to as the "Project." WHEREAS, County has provided funding for several road projects within the limits of the City through and as part of the January 1999 Better Safer Roads Bond Program, WHEREAS, City and County value the early completion of the Project which involves roads which are integral parts of the County's mad system; WHEREAS, City and County mutually desire to be subject to the provisions of V.T.C.A., Government Code, Chapter 791, the Interlocal Cooperation Act; and WHEREAS, each party paying for the performance of governmental functions as provided for in this agreement, shall make those payments from current revenues available to the paying party; City of Denton ICA Page 1 WHEREAS, City desires the participation of County in the Project as authorized by V.T.C.A., Transportation Code, §251.012; NOW, THEREFORE, it is mutually agreed by the parties hereto as follows: The term of this Agreement shall commence upon execution by all parties and shall terminate upon completion of the Project or upon termination of this Agreement under the provisions of Section VI]I. II. The Project is described as follows: Improvements to FM 2181, including but not limited to, environmental clearance, development of plans, specifications and estimates, and construction of a six-lane, divided urban Farm-to-Market roadway. The project shall be conducted in two phases: Phase I - Lillian Miller to Hickory Creek Road Phase II - Hickory Creek Road to south jmaction of FM 2181 and IH 35E in Corinth III. Pursuant to V.T.C.A., Government Code Section 791.011, the parties hereto agree that the purpose of this Agreement is to ensure that certain governmental functions and services in the area of streets, roads and drainage are performed. The parties hereto further agree that each of them is authorized to perform the functions and services individually. As required by V.T.C.A., Transportation Code Section 251.012 and as evidenced by the signature of the City's representative below, the governing body of City by the execution of and City of Denton ICA Page 2 approval of this Agreement approves of the expenditure of County money to participate in or to fund an amount not to exceed ONE MILLION SIX HUNDRED THOUSAND AND 00/100 DOLLARS ($1,600,000.00), for the preparations of an environmental assessment, schematic drawings, plans, specifications and estimates as identified in Section It. The remainder of the County's committed funds will be applied toward the construction of Phase 1I as identified in Section II. In performance of this Agreement, the COUNTY will be responsible for hiring the engineering firm for Phases I and I1 of the Project. Additionally, the COUNTY agrees that all funds remaining after the procurement of engineering services will be committed to the construction of Phase 1I of the Project. VI. In performance of this Agreement, the City agrees to pay EIGHT-HUNDRED AND NINE THOUSAND AND 00/100 DOLLARS ($80%000.00) to reimburse the County for costs incurred in procuring the environmental assessment, schematic, and plans, specifications & estimates for their portion of Phase I and II. VII. As County proceeds in the completion of the Project, it shall submit invoices on a monthly basis for reimbursement not to exceed EIGHT-HUNDRED AND NIN THOUSAND AND 00/100 DOLLARS ($809,000.00) unless otherwise authorized by the governing body of the City of Denton, to the City of Denton Finance Department, Attention: City Controller, at City Hall, 215 E. McKinney Street, Denton, Texas 76201, and the City shall reimburse County for all expenditures related to Phases I and II of the Project within Thirty (30) days of receipt of these invoices. Attached to this Contract is a certification by the County Auditor that the County shall include the sum of ONE MILLION SlX HUNDRED THOUSAND AND 00/100 City of Denton ICA Page 3 DOLLARS ($1,600,000.00) in its budget and that this amount shall be itemized, set aside and approved by the County Commissioners Court to be expended for the Project. VIII. This Agreement may be terminated in whole or in part by the County or City upon thirty (30) days' written notice to the other party setting forth a substantial failure by the defaulting party to fulfill its obligations under this agreement through no fault of the terminating party: No such termination may be affected unless the defaulting party is given: (1) written notice delivered by certified mail, return receipt requested of intent to terminate setting forth the substantial failure to perform; and (2) not less than thirty (30) calendar days to cure the failure; and (3) an oppommity for consultation with the terminating party prior to termination. In the event of termination by the City, City shall reimburse County for all invoices submitted up to and including the date of termination. Notices shall be directed as follows: For City: Copy To: Hon. Euline Brock The City of Denton Mayor 215 E. McKinney Street Denton, Texas 76201 Mike Conduff, City Manager City of Denton 215 E. McKirmey Street Denton, Texas 76201 For County: Copy to: Hon. Mary Horn Denton County Judge 110 East Hickory Denton, Texas 76201 District Attorney's Office/Civil Division Attn: Lee Veness 1450 East McKirmey, Suite 3100 P.O. Box 2850 Denton, Texas 76202 City of Denton ICA Page 4 The covenants, conditions and terms hereof are to be construed under the laws of the State of Texas and are performable by all parties in Denton County, Texas. The parties mutually agree that venue for any obligation arising from this Agreement shall lie in Denton County, Texas. This writing is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms of their agreement. This Agreement can be modified or terminated according to the provisions of Section VIII only by writing signed by both of the parties or their duly authorized agents. XI. This Agreement is not intended to extend the liability of the parties beyond that provided by law. Neither County nor City waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims arising by th/rd parties. XII. In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions shall remain valid and in full force and effect to the extent possible. XIII. The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto and each party hereby certifies to the other that any and all necessary resolutions extending said authority have been duly passed and are now in full force and effect. City of Denton ICA Page 5 EXECUTED in duplicate originals. COUNTY Denton County, Texas 110 West Hickory Denton, Texas 76201 CITY The City of DENTON, Texas 215 E. McKinney Street Denton, Texas 76201 By: Hon. Mary Horn Denton County Judge Acting on behalf of and by authority of the Commissioners Court of Denton County, Texas Date: By: Hon. Euline Brock The Mayor for the City of Denton Acting on behalf of and by authority of the City Council of Denton, Texas Date: Attest: Attest: By:. Cynthia Mitchell, County Clerk By: City Secretary Approved as to form: Mr. Lee Veness Assistant District Attorney City of Denton ICA Page 6 AUDITOR'S CERTIFICATE I hereby certify funds will be available in the amount of ONE MILLION SIX HUNDRED THOUSAND AND 00/100 DOLLARS ($1,600,000.00), will be committed to engineering and design and the remainder will be applied towards right-of-way acquisition, utility relocation and construction, toward financing the Project to accomplish and pay the obligation of Denton County, Texas under this Agreement. James Welts, County Auditor City of Denton ICA Page 7 APPROVAL OF INTERLOCAL COOPERATION AGREEMENT PROJECT The COUNTY OF DENTON, acting by and through its County Conunissioners Court, having been advised of a project requiring road improvements to FM 2181 in the city of Denton, Texas, under an Interlocal Contract, herein gives its specific written approval of the project prior to beginning the project in satisfaction of the requirements the Interlocal Cooperation Act, Texas Government Code §791.014. The description of the type of project to be undertaken and its location are as follows: road improvements to FM 2181. The local government which requested the project and with which the County of Denton has contracted is the City of Denton. By vote on this date, the Commissioners Court has approved the project identified above and authorized execution of this document by the presiding officer on behalf of Denton County, Texas. By: Presiding Officer of the Denton County Commissioners Court City of Denton ICA Page 8 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 23, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance by the City of DeNon, Texas abandoning and vacating a 1,960.20 square foot portion of street right-of-way for Fain Avenue as it affects Lot 1, Block 1 of the D.H. Fry Addition as recorded in Volume 75, Page 74 of the Plat Records of Denton County, Texas; and providing an effective date. BACKGROUND Joe Lanham, the landowner of the property at the southwest corner of Bolivar Road and Fain Avenue, has applied to the City to have a portion of right-of-way for Fain Avenue abandoned. During the replatting of Mr. Lanham's property, it was discovered that a small portion of his home and a larger portion of a storage shed extended into the 60' right-of-way for Fain Avenue. If approved, the new right-of-way line would parallel Fain Avenue, which is already curbed and guttered, and be located 8.4' from the existing back of curb. There are no existing easements or utilities within the abandonmem area. The landowner would be acquiring the abandoned right-of-way from the City at fair market value. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the draft Ordinance. ESTIMATED PROJECT SCHEDULE Spring, 2004 PRIOR ACTION/REVIEW None FISCAL INFORMATION The DeNon County Central Appraisal District's 2003 assessmem for Mr. Lanham's abutting property is $1.63 per square foot. 1,960.20 sf X $1.63 = $3,195.00 (rounded). Mr. Lanham has deposited a check in the amoum of $3,195.00 with the City. ATTACHMENTS Location map Draft ordinance Agreement Prepared By: Tod Taylor Real Estate Specialist Respectfully submitted: Charles Fiedler, Director Engineering Department Area of ROW Abandonment FAIN TALIAFERRO Fain Avenue R.O.W Abandonment Area Not To Scale Legend centerline ~ parcels N S ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS ABANDON-lNG AND VACATING A 1,960.20 SQUARE FOOT PORTION OF STREET RIGHT-OF-WAY FOR FAIN AVENUE AS IT AFFECTS LOT 1, BLOCK 1 OF THE D.H. FRY ADDITION AS RECORDED IN VOLUME 75, PAGE 74 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton (the "City") has received a request from the abutting landowner, Joe Lanham (the "Landowner") to vacate and abandon a certain street right-of-way; and WHEREAS, the property to be abandoned is described and illustrated in Exhibit "A", attached hereto and made a part hereof by reference (the "Abandoned Property"); and WHEREAS, staff has reviewed the requested abandonment of the Abandoned Property and has recommended approval; and WHEREAS, the City Council of the City of Denton, Texas has determined that . the Abandoned Property is no longer needed for public use; and WHEREAS, the Landowner has deposited with the City the sm of $3195.00 for the purchase of the Abandoned Property which is the fair market value of the Abandoned Property; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Abandoned Property in hereby abandoned and all right, title and interest of the City in and to the Abandoned Property is hereby quit claimed to the abutting Landowner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and quit claim. If requested by the Landowner the City Manager or his designee is hereby authorized to execute on behalf of the City a quit claim deed to the Landowner to further evidence this abandonment. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. BY: Y Page 2 STREET ABANDONMENT EXHIBIT Exhibit FAIN AVENUE PERUAUENT_/ ~ ~ ~0~ %~RG, ]1 D.H, FRY ADDITION j VOLUME 75, PAGE 7~ title NOT[S to all that certain troc~ of J~n~ sJ[~ot~d i~ [h~ CiJy of Oen[on, Denton ~ou~y, Texas and being ~ ~otJ o~ Fain Avenue,' ~ public ri~ht-o~-woy, es shown om the Plat of the D.H. ~ ~DITION, t~corded in V~tume 75, Page 74 ~f ~he Plot Records of Oenton County, Texas: BEGINNING at o ~" capped ~ron rod set f~ the No~heos[ COmet of Lot 1, BJock 1 of sam D.H. FEY ADOEION et the intersection of the South Hgh~-of--woy line of said F~in Avenue ~nd the West ~Jg~-of-wey line of ~o~i~t Avenue; THENCE North 8g degrees 55 minutes 50 eeconds Wes[ with the North [ina of said Lot o~d ~;d South Hgh[-of-woy li~e o d~stonce of 147,82 feet to o ~" copped iron rod get for the Northwest comer o~ sa~d Lot 1, at the Northers[ corner of L~t 2 of said Block THENCE North 00 degrees O6 minutes 4~ seconds East e dis[once of 11.05 feet to copped [ran rod set ~o~ corner; THENCE North 87 degrees 40 minutes ~3 seconds East e d;s~once of 131,42 fee~ to ~' capped [ran rod set fat .THENCE South 44 degrees 45 mi~tes 19 seconds East ¢ distance of 23.42 feet to P~CE O~ BEGINNING end e~closJn~ 0.045 acres al land, more Dc less. 1" = 30' L----CGEND ~L m PROPERTY UNE !I ~ ~ SET BACK UN£ BL - ~u[uDIMG UNIE .FH ~ yl~£ HYO~4N~IT ~T ~ PROPANE T.M4N TR ~ ~:LEPHGNE R~;eR ~ FC~* ~ FEN~2:: CC~aER POST Cr ~ C~MU~ ~SE~ENT S~ m S~T~Y ~ ~ARB~ ~ - P~NT ~ ~ag ~ ~ ~Nt ~ ~MM[NONG S~ - ~ Y~O ~T B~ LiNE HAT~ LA~T CERTtFICATtON: i hereby certify that I hove directed and supervised on accurate on the THIS SURYE¥ ]S ONLY ground survey of the premises ~eplcted VALID ~ITE EMBOSSED SEAL herson and described in the legol description attached hereto and that the findings and resulJs of said survey are true and correct to the best of my knowledge and belief and that the size. type and location of the permanent improvements ore os shown, and that said survey correcUy shows the location of all o/toys, slteets. rights-of-way, and easements of record o~ which the undersigned ho$ bee~ advised cffecting the subject premises occo~ing to the descriptions of record, o~d that except os shown there are no visible encroachments, visible ~edops, visible COnfl~ or v;s[ble protrusions, J.~. THOMPSON 11 R.P,L,S, No 4857 Dote 'f:"- .... P.O. BOX 507' ~OB ~UMBER~ 0810~-AB~ D~WN ~Y: A~. T~O~PSON ,.Review~' By: , NOT PS:C~.IYED T March 2, 2004 Joe Lanham 4090 Sauls Road Aubrey, TX 76227 Re: Right-of-Way Abandonment - Block 1, Lot 1 of the D.H. Fry Addition Dear Mr. Lanham: The City of Denton Engineering Department is in receipt of your completed Right-of-Way Abandonment Application requesting the abandonment of approximately 1,960 square feet of street right-of-way along the northern boundary of your property at Fain Avenue and Bolivar Road (the "Abandonment Area"). City staff has determined the value of the Abandonment Area to be $3,195.00 (the "Acquisition Amount"). This value is based upon the Denton County Appraisal District's 2003 assessment of your adjoining property. Upon approval of the abandonment by City Council, the Abandonment Area will be conveyed to you via Quit Claim Deed. The Acquisition Amount must be deposited in escrow with the City prior to City Council consideration of the abandonment. Please acknowledge your agreement with the Acquisition Price by signing this letter where indicated and returning to me at the address as indicated below. Please do not hesitate to contact me with any questions or concems. Sincerely, Tod J. T~/l~or~ Real Estate Specialist Above~ '~~~~'°ffer terms ~2~ ~,~//L"anh am Date City Hall East · (940) 349-8910 601 E. Hickory, Suite B · Denton, Texas 76205 · (940) 349-8951 (fax) · Metro (972) 434-2529 "Dedicated to Quality Service" www. cityofdenton.com AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT An Ordinance of the City of DeNon, Texas approving the amendmem of an agreemem between the City of Denton and McDonald Transit Associates, Inc. for the operation of bus services dated April 16, 2002, as amended, to allow the City to provide insurance coverage through the Texas Municipal League Intergovernmental Risk Pool ("TML Risk Pool"); approving an imerlocal agreemem between the City and the TML Risk Pool to provide such insurance; and authorizing the City Manager or his designee to execute the amendment on behalf the City and the Mayor to execute the interlocal agreement on behalf of the City; authorizing the expenditure of funds; and providing for an effective date. BACKGROUND On April 16, 2002 the City of DeNon emered imo an agreemem with McDonald Transit Inc. (McDonald) to provide motor carrier passenger service for the city. McDonald began operation of the city owned LINK public transportation system on October 1, 2002. As part of the agreement with McDonald, LINK requested that McDonald identify opportunities to improve the cost efficiencies of providing public transportation services in the City of DeNon. At the end of the 2003 Fiscal Year, McDonald recommended that insurance be procured through an agreemem with the Texas Municipal League (TML) Imergovernmemal Risk Pool. A more favorable insurance rate can be secured if McDonald was officially recognized as an agent of the City of Denton. Over the past several months, McDonald, LINK staff and the City Attorney have been reviewing, in conjunction with TML, the opportunity to put this proposal into effect. McDonald currently has similar arrangements in place with the cities of Lubbock and Waco. To comply with the TML requirements, McDonald would establish a transit management company, Denton Transit Management, Inc. to provide personnel services associated with providing transportation services for the City of Denton LINK system. Denton Transit Management would cominue to provide all insurance requiremems required by Section XII of the April 16, 2002 agreement between McDonald and LINK. If the proposed contract amendment is approved, McDonald is recommending that the insurance costs be amended so that these fees are removed from the fixed cost portion of the agreement between McDonald and LINK and be made a component of the variable costs of said agreemem. The original agreemem included $86,480 for a twelve-momh period in the fixed cost line item to insure 15 vehicles. During the nine-month period, October 1, 2003 to June 30, 2003, McDonald's insurance costs were $114,506 for 20 vehicles. McDonald Transit is reporting that TML insurance will reduce total insurance costs for the fleet, now totaling more than 32 vehicles, by approximately half, $60,000 for a full year. OPTIONS I. Approve the proposed amendment to the McDonald Transit Agreement. II. Provide staff direction with other alternatives to providing cost effective insurance. RECOMMENDATION Staff recommends the approval of the proposed contract amendment. ESTIMATED SCHEDULE OF PROJECT The amendment would take effect upon approval of the ordinance. This will permit McDonald to initiate the process to rewrite the current insurance policy. McDonald estimates the new insurance rates could be effective by May 1, 2004. The change in cost structure for insurance, fixed cost vs. variable cost, would take effect May 1, 2004. PRIOR ACTION/REVIEW The City Attorney's Office reviewed and prepared the proposed contract amendment. McDonald, TML, and UNT representatives have reviewed and approved the proposed amendment. The Risk Manager has also reviewed and approved this amendment. FISCAL INFORMATION The ability to use TML Intergovernmental Risk Pool to insure motor carrier passenger services provided by McDonald transit will allow LINK the opportunity to substantially reduce annual insurance cost on the current 32 vehicle fleet; 14 LINK vehicles and 18 UNT vehicles are now in operation. McDonald Transit will be responsible for the premium. EXHIBITS Ordinance Agreement Exhibit A Respectfully submitted: Mark Nelson Director of Airport and Transit Operations ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING THE AMENDMENT OF AN AGREEMENT BETWEEN THE CITY AND MCDONALD TRANSIT ASSOCIATES, INC. FOR THE OPERATION OF BUS SERVICES DATED APRIL 16, 2002, AS AMENDED, TO ALLOW THE CITY TO PROVIDE INSURANCE COVERAGE THROUGH THE TEXAS MUNICIPAL LEAGUE INTERGOVERNMENTAL RISK POOL ("TML RISK POOL"); APPROVING AN INTERLOCAL AGREEMENT BETWEEN THE CITY AND THE TML RISK POOL TO PROVIDE SUCH INSURANCE; AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE THE AMENDMENT ON BEHALF THE CITY AND THE MAYOR TO EXECUTE THE INTERLOCAL AGREEMENT ON BEHALF OF THE CITY; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, The City has previously entered into an agreement with McDonald Transit Associates, Inc. ("McDonald") dated April 2, 2002, as amended (the "Existing Agreement') to provide bus service for the City; and WHEREAS, the City and McDonald have determined that cost savings will be obtained by amending the Exishng Agreement in substantially the same form as the amendment attached hereto and made a part hereof by reference (the "Amendment") to allow the City to provide insurance coverage, at McDonald's expense, through an interlocal agreement with the Texas Municipal League Intergovernmental Risk Pool (the "TML Risk Pool") in substantially the same form as the interlocal agreement attached hereto and made a part hereof by reference (the "lnterlocal Agreement"); and WHEREAS, the City Council finds that the Amendment and the Interlocal Agreement are 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 and the Interlocal Agreement are hereby approved. The City Manager or his designee is hereby authorized to execute the Amendment on behalf of the City. The Mayor, or in her absence the Mayor ProTem, is hereby authorized to execute the Interlocal Agreement on behalf of the City. The City Manager, or his designee, is authorized to make the expenditures provided for in the Amendment and Interlocal Agreement and to exercise the City's fights and duties under the Amendment and Interlocal Agreement and to execute any other documents on behalf of the City n~essary to obtain the insurance coverage. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, C~Y SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL HERBERT L. BY: Page 2 AMENDMENT TO AGREEMENT TO PROVIDE SERVICES FOR PASSENGER MOTOR CARRIER TRANSIT SYSTEM WITH MCDONALD TRANSIT ASSOCIATES, INC. THIS AGREEMENT is made as of the date set forth below by and between the City of Denton (the "City") and McDonald Transit Associates, Inc. a Texas Corporation (hereinafter referred to as "Company"). WHEREAS, on April 16, 2002 the City and the Company entered into that certain Agreement to Provide Services for Passenger Motor Carder Transit System which was amended in part, providing for the operation of a Passenger Motor Carder Transit System for the City of Denton, Texas (the "Agreement"); and WHEREAS, the City and the Company desire to further amend the Agreement to provide for the establishment of a corporation to act as the City's agent to provide employee support services under the Agreement and to revise the insurance provisions under the Agreement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Section III of the Agreement is amended to add the following provision: "The Company shall establish a corporation with the name of Denton Transit Management, Inc. (the "Management Company"). The Company will cause the Management Company to employ all personnel necessary for the operation of the Transit System. The City hereby designates the Management Company as its agent to provide employee support services for the operation of the Transit System. The City will continue to provide maintenance services. The Management Company shall provide all insurance required by Section XII of the Agreement. Such insurance coverage shall include naming the University of North Texas, its employees, officers and agents as additional insureds. The City retains the option to provide workers' compensation coverage to the employees of the Management Company pursuant to Chapter 504 of the Texas Labor Code. The City also retains the option to maintain automobile liability, general liability and other coverage as may be appropriate for the Management Company, its employees and volunteers with a combined single limit of not tess than $1,000,000.00 per occurrence. Should the City elect to maintain such insurance, the Company shall be responsible for paying all premiums, contributions and any per claim or per policy deductibles. The Company and the Management Company are independent corporate entities, which shall in no way be deemed to be affiliates, partners, subsidiaries, joint venturers, or other entities under the control of the City." 2. Ali other terms and conditions contained in the Agreement that are not expressly amended or changed by this instrument shall remain in full force and effect. SIGNED effective as of the 2004· day of CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY By: Michael A. Conduff, City Manager BY: APPROVED AS TO LEGAL EORM: HERB~ff~ATTORNEY BY: MCDONALD TRANSIT _.._... ^s' '"PRESIDENT Page 2 of 3 C:~l)oc'u.u~nts alx[ Sel't{ug~ii01~m:ai 8elfillggT,~ r'~'y 1~ Fil~K43AVkle.D*amld P,n,~lg}ll~ RI -I um~'-a~e.I~ The University of North Texas ("UNT") has signed below evidencing its consent to the above amendment and agrees that the insurance requirements contained in the Intedocal Agreement between the City and UNT for bus services dated December 10, 2002 as amended by Inteflocal Agreements dated April 16, 2002 and July 16, 2003, may be provided by the City through a contract with the Texas Municipal League Intergovernmental Risk Pool by naming LINT as a covered governmental entity pursuant to an endorsement in substantially the same form as the document attached hereto and made a part hereof by reference as Exhibit "A". ATTEST: APPROVED AS TO FORM: GENERAL COUNSEL BY: UNIVERSITY OF NORTH TEXAS ~ Phillip C. Di~bel/ Vice President for Finance and Business Affairs Page 3 of 3 Description T~XA$ MUNICIi~AL L~AGU]g INTERGOV~~ RISK POOL 03/09/04 15:~? FAX 512 491 2404 TML-IRP UNDERWRITING ~002 Texas Municipal League Intergovernmental Risk Pool 1821 Rutherl'ordLane, Ftrst Floor · A~tin, Texas 78754 LIABILITY/PROPERTY INTERLOCAL AGREEMENT TI~ aa~_.r~i~ed Pool Mem~. ia accorda,¢e with ~ l*~l~g ~oa Ach T~. Go,'~ C~ ] 791.~1, ,t seq., ~ ~e ~t~on · ~fby ~ ~ Om~ of ~e ~ ~ T~ (Op~ ~-347, May 29, 1981), ~d ~ c~n of o~ ~Ud~ mb~v~ a. Board. Refers to the Boant of T-~s~ez of the Tnxas Municipal League lo,ut Self-Insurance Fund. b. Fund Y~ar, 12:01 a.m. Octob~ 1 through 12:0I am. the followiag October 1. Manual Rates. The basic ra~.~ a~licable to each Eabili~y classification promulgatt,:! by ti~ lasuran~ Serdce Offic~ or ~he Board of Trustees. ti. TML Mumcipal Liability Seg-Insumn~ Pla~ TI~ liability coverage docvm~m that sets forth in exact d~il the coverages provided as pm of the overall pla~ e. Adjus~mente. Refer~t~ny~*etst~ma~uaJpr~miumthat~tyr~s~l~r~m~heP~Member~selee~n~fdeduc~b~e$~ssexpe~e~ee or Fand Modifier whkh reflects the savings to the Pool Member by e~l~ing ham this Agreement f. TML Munklpal Prol:~n~y Sd.f-Insm-mcc Plan. The property co~rag~ documeat that sets fc~ in exact ~ the coverages provid.d ss part of the overall plan. , h-eaiiium and Con,la,ion. Used iaterehanSeably ia ~g ~ ~ ~$ ~ml~ A~ement. ~y ~f~ at ~y ~ ~ ~s ~l~fl A~t to ~n~ ~ b~ ~n~ ~ ~ ~-~ee ~ ~c~ w~ ~ cont~r ~e~ ~ea~ ~o o~ ~s~ble ~t~m~on su~ ~ but ~t Rei~v.~able Deduc6ble. 'Ihe amotmt that was dao~a by ~ P~ol Member to be applicable to the tim mom~ pai,d by the Fund effect judgmmt or settlement of any claim or suit_ The Pool Member, upon notification of the actio~ taken, ~hall l~omptly ~imburac the Fund for all or such part of~ ~iuctiblc amount a~ has been paid by th~ Fund. Furor, however, the Fund's obligation to pay ~mages shall be m~ect to the Limits of Liability stated ia thc Declarations of Coverage orEndorsements to tl,4s Intettocal Agmemeat le~s th~ stated d~duc~ible amount i. Fund Modifier. A pe~.entSge figure thatis applied to the manual rams by tl~ Fund t~ r~lee~ the s aviags ~o the Pool Member by eatering into ~c Iaterlocal Agr~t. j. Agrmm~tPeriocL Tbe~n~u~u~p~i~d~i~mth~P~Mer~berf~tb~am¢amemb~r~fthisF~mdexc~uding~h~wever~anyperi~d of periods of time tlmraia that the member did not pardcipa~ as a member of the Pool k. Declarations of Coverage, ~ specific indicalion of the coverages, limits, ~ducfihles, conm~ou~ions and special provisions by ~ i~flividual Pool Memb~. The ]D~larations of Coverages may b= mocliticd by Eadorsc~ea~. The Board of Tmst~.s, scthag thtottgh its age.ts and Fund staff, is r~spo~'ble ~or th~ administration of all Fund buslneas on bahalf of the Pool M~rnbel~. t R~vis,d 10/90 03/09/04 15:28 FAX 512 491 2404 TML-IRP [qqDERWRITING ~005 la consideratioo of the execution of this A~mnnt by ~ ~m~ ~ ~ol ~ ~ ~e ~d ~d of ~ ~~ of~ ~l MemO, ~ cov~ ~ec~d ~ ~ P~I ~m~r is ~d ~c~g to ~ ~ of ~c ~ L~ ~-~ P~ ~ ~ ~ S~-~su~ce ~ ~ ~ ~on of ~nm~o~ md li~ ofh~ ~ ~ D~l~om of Corse Each PoolMtm'.b~agrccs to ~dopt a~d accep~ the coverages, provisions, ~ condificm, exclusions sndliroimions ~ funhcrprovided for in ~e TML Self-Imvrance Pla.~s or as specifically modified by the Pool Member's Declta'afions of Coverage, This In,.local A~reeraem shah be consu-u~d to iacorpolau~ the TML Liabili~ Self-Insur~c~ Plaa and/or the TML Property Self-Insur',mce Plan, Declarations of Coverage, and Endorsements and .,~ldenda whether or no~ physically attached hereto. It is tmd~tood that by paniclpafl~g in dlis risk sharing mcc.~ni~m to c over liitnlivy exposures, the Pool M~mber does not intend ~o waive any of ~he illunuoifies d~ ks officer~ o~ its employees now possess, 'l'be Pool Memb~ recognizes the Texas Ton Clslms Act and ir~ limitations re certain govemmenlal func~ct as well ~ i~s monetary timi~i~s and that by exccu~ug this Agreernen[ do~s not a?jee to expand gause lin'ge, dons, The Pool Memb~. upon thc cxccmion of h'gs Agreement. shall supply ~he Fund with a cut, em copy ofi~s charier pwvisiom or cl'dinance that sen out its requlrem~t as to ~e number of days in which a third patty liability claim must be made against it. If the Pool M~mb~r does t~ot have such an orclinan~ pr~vision that ~slabllsl~s ~ set number of days or if it has an onliaance provision which provid~ for less d~n sixty (60) days ~otice and for good cause shown up to six (6) mo,,ths no~e die Pool Member agrees ~o adopt a~ ordinance p~oviding for such aofice~eaSonably describing tl~ damage or i~jury claimed and the time, wan~or ,~d place ofth~ incident from which it arose. The ~otice requ;.,,aem shall not be changed by the Pool Member widiout first giving the Fund thirty (30)days wri~n ooOce. Violafioo of this provision may. a~ the Fund's discrmion, void this In~edocal Agreement Thc ~eim of this A~r~nent and the self-insarax~ pwvided ~ ~ P~I Mem~ s~ ~ con~uous ~dng 12:01 m ~ ae ~ ~gs~a~d ~ ~s ~e~n~ un~ ~d ~ ~vid~d b~ow. ~ou~ ~e ~-~ ~ded for ~ ~s A~eem~ ~ ~ ~uous ~ t~a~ ~e ~ d ~W of ~eFund ~d~ ~ cove~s ~at ~c P~t M~b~cl~ts sh~ ~ ~ ~g ~y F~ Ye~ ~o ~e ~o~t s~d ~ ~e ~l~ons of Cov~ f~ ~t F~d Ye~. This Agreeme~ may bc ~'miaated by ei~t~ puny giving to rig other sixty (60) days prior wriuc,~ notice of in~nt to terminate except the PoolMember may ~daa~e this Agg~m~n~; and its coverages the, t~under vathou! giving the sixt~ (60) days noli~ ffthe re.on is In, cause ofachange by the Fund in the PoolMembeFs contribution, coverage, or other clumgein the limlt~ ofliability, terms, condMom, exclusions ~ iimiu~tlom pwvidcd fvr in thc Texas Municipal League Self-l. nsurame Pl~ms provided fi-at no t~minafion by li~e Member shall be eff~cfivcprior ~o ~he date that wfieen notice oftemin~e~ is actually received in d~e offices of ~e Texas Municipal League loint $~Af-Iusurance Fund and provided ~ the Pool Memb~ agrees to and ~ pay the applicable premium and con~ib,~ion for ~hos~ covewges it is lm~narlng u~gl the date d~e a~ce of ~'nin~fiou is actually received by d'~ Fund. 'Fne Fund shall provide dg Pool Member with Dechrafions of Coverag~ and any Endors~m~ms that dctea'mlne the appligability of thc Texas Mxmicip~l League Self-Insurance Plans anuually by December 1. Such Declarations of Coverage shall include, but not be limited to, the eov~age period which shall be the applkable Fund Year, limits, deductibles, contfibuiions, special provi'sions and limitationS. Cha~es made during the F~d Year, whether request~ by thc Pool M~nnb~[ o~ r~quir~d by the Fund, will bc hfmdlcd by Endorsement. It is the intention of the parties ~at ~he Pool Member's coverages under this Agl~ement shall remain in full force and effect from Fumi Year to Fund Year, subject to the llm;is of llabili~y that the Fund c~ pr~de ~h Fund Year and the m'ms, conditions, limitalioas that the Fund muy reqai~ to progct its solven~ and to comply with ~ins~'an~ r~uiremea~ until notice of tovMnation is givgn as hgzeia provi~d. Reali~'ing that the Pool Member n~eds the esxliest possibl~ infommtion concerning ~ Fund eove~ges, limits, and exclusions alld the Pool Member's contribation thag will be rcquire, d for any ~w Fund Year, the Ftlnd will endeavor to provige this illfoimation as soon as pos.~ble b~fol~ the b~ginrfing of each Fund Year. Th~parties r~coguiz~, howgv~r, that cooditio~ in the reinsurance industry are such that the Fu~lmay not be able topmvid~ this infommzion to thePoolM~mber befm-~ the b~ginaing ora Fund Year for various r¢~ons including {he hilum ofth~ Pool Memlx'r to timely aubmit ~he aplx~p~te cxposw~ smmmary or detays on the pa~-t ofreinsarers in getting illformaRon to the Fund, and so, to protee~ ~ Pool Member fi'om gaps in its coverage and ~o ia'ot<t the solvency of the Fund, tl~ parties agg~ ~ follows: If.. for any reason other than the Peal Member's failure to provide the information requtsted in the expo~re ~ummacy. the F~nd has not been ah& to provide the Poet Membo'wlth information concerning ctvailable coverag~ for a new Fund Year or advi~e the Pool Member of the amount of it~ con~bution for the new Fund Year by the begimu'ng of rh~ Fund Year. the Fund ~hall never~heless conrinut the Pool Member'z coverages at the same limits of li,bility ( ~f ~lt available and if no~ tlnm at the highest limit of liability available for the new ' - Fund Year) so that the Pool Member rhall at all rimes remain covered as herein provided and the Pool Member's intgal conrriburion~ for ~he n~w Fund Year shall be determlned by a "tentative contribution' as determmed by the Board ~th th~ Pool Mernb~r'$ actua~ annual Revised 10/90 03/09/04 1S:29 F~ $~2 491 2404 TML-IRP UNDERWRITING ~004 10. 11. conoClnaion ts be credited l~y die amount paid in accordance with the tenfative contributWn and adjusted during the Fund Year In event the Pool Member does not wish to have it~ coverages e.~eruie, d or renewed at the end of any Fw~cl Year, the burden shall be upon the Pbol Mernbsr to gfi~ wrf~n notice to the Fund ~ pro~ided hereinabove and the Pool Member agrees to lmY as hereinabave stated all contributions or pro rata contributions until the date ~uch written no,ce i~ r tc~ived In the offices of the Fund or the date of t~rrn~nation of th~ Agreeme~. whichever i~ later. Commensurate with ~¢ axecuao~ of this Agreement and annually that'S'r, the Pool Member shall comptet~ the appmpfiate exposure surmmty and deliver k or cause i~ ~o be delivered to the F~nd, or, Lf so insm~cted, to a demobbed cou~ractor, no later ~ Septembe~ 1 of each yea~ and new a~nual centn'b~iom shall be calculated using manua~ rotes t~mes exposure, lc~s any adjusm~cms, lntenaonal or reckless misstatements on the exposure summary shall be g~ouads for canc¢]Llalion. Ia the eveat that the Pool Member fails t~ refuses to sabot the appropriate exposttte summaxy, theFund zes~ves the right to tet'l~tna~e such Pool Member by giviag tbigty (30) days w~t~n no,ce and to collect ~y and all con~ibufions that a~ eame. d pm tala fo~ th~ pex~od preceding co~ttact ~tion. '1~ Pool M~abar agrees to pay the annual conMbution ~o ~e F~d in f~ (4) ~ quay m~, M Mv~, co~nc~g at ~e ~nln~ of~ A~nt wi~ ~b~nt ~llm~ ~ ~ ~ qu~ ~r. P~I Memb~ w~ e~t a ~le ~ ex~ of$~,~ ~ ~ply wi~ ~ ~mhly pa~t sc~e outlined to ~m ~ ~v~ of ~su~ su~ a l~e ~ ~ev~t ~s ~is ~~ ~ ~ ~F~d sb~ p~fly ~yto ~ePool M~b~ ~y such ~ ~ ¢o~fi~ pro~ ~ of~ ~ of ~in~ ~d ~e P~I M~ ~ d~ ~ ~ offs A~ement ~ pro.fly pay a~ mm~le ~b~ ~on ~eei~ of At the end of each and every Fond Year, the Fund may r~quim tl~ Pool Membe~ to submit the actual da~a requeswA on the exposure summary as ~efle, c~d by the books and ~cords of the Pool Member. The Fuad reserves the right to audit the ~cords of any Pool Member and adj~t con~'butlons accordingly. In l~e event that the Pool Member fa~Is or refuses to make the payments, including acc~uedintcreat, az h~rrAn provided, the Fund reserves the right to tetmina~ such Pool Member by giving them ten (10) days wtinen notice and to collect any and all amotm~s that ate earned pro rata for the period preceding aoattact termination. If the amomlls owed, including reimbtu'sabl¢ deductibles, have to be collected by suit, the Pool Member acres to pay ar/o~ey~' f~es and costs loom:zed in such suit. The Pund shall ~n;ntain adequate pto~e~tion fi-om cataaa'ophic losses to pt"otect it~ financial integrity. Aggregate protection shall also be maintained, Thc Member's ;on~bu~ions shall be Ua~ited to that amount as calculated under this Agteeanent. Notwiths~m6tng the provisions of the foregoing paragraph, k is agreed the Board s~udJ, have the fight to adjust the ~na~aal protection outli~d above and/or amend coverages as it finds available o~ deems accessory to rmintain ~ fiscal soundmss of the Fund at the be~nning of or during any Fund Ye~. The ]Fund will make available loSS comwl servi~$ to the Pool Membe~ to assist thereto fol~owbag a plan of loss corm-ol that may result ~x reduced losses. Thc Pool Member at,ecs tlmt it will cooperate in instituting any and all reasonable loss consol recommenda6ons. Ln the event thaz th~ recommendatiom submitted seem untraceable, th~ Pool Member has a right to appeal to the Boarct of TrtUteeS. The Board shall bear ~e objegtien~ of the Pool Member at its next resularly scheduled meeting and im de~Asions will be final and bindi~ on all ps. es. Any Pool Member who does not agree to follow the decislo~ of the Board shall be withdrawn from the Ful~d immediately. ~ PooX Member agrees that it will appoint a contact of d~partmeat head r~-t-. ~ ~ F~d ~1! not ~ r~d to c~ct my o~ ~d~ ex.pt ~s o~ ~u, ~y n~ce m ~ ~ a~m~ wi~ ~e ~t ~ be b~g up~ ~e ~ol Mem~. ~ Pool Me~~ ~ fi~t ~ ~ ~ ~n~ct ~m ~ ~ ~ by ~ng ~Um no~ to ~c ~ The Fur~ agrees to handle all liability and ptopexW dahm. and provide a cL-fens~ for any ~d all Uabitity cl~im.~ covered, under this Agreement a~ter pmrapt notlcc has b~n gives. Thc Pool Member hereby appoblts the Fund sta~ and Contractors as its agents to a~t tn a. ll malzers pertaining m processing aad hamt[i~ of claims covea~ed trader this Agreement and shall coopera~ fully in ~upplying any informnfion needed or helpfvl in settlement or defeasc of such.claims. Aa ze~p~cts liability clahm, the Fua~d staff and Contractors shall carry on all n~gotiations with the claimant and his attorney a~d xegotinte withia author~ pt~'viously granted by the Fuad* ~f a p~soaal appeara~tce by the Pool Membe~ or an employee is arc.sexy, the expense of this appearazlca will not be the x-e~ponaibility of~e Fond, Wi~b thc advi~e md consent of the l:,,,a, the Fund staff and the Contracxers will ~e~n and supervise kgal counsel for the prosecution and cl~ense of any li6ga6on. All de~ision~ on individual cas~s shall be made by 11~ Ftmd through the Fund ~aff and the Conu'actox~, which ix~udes thc decision to appeal or noi to appeal, l-Xoweve~, any Pool Member shall have the right in any case to consu~ with the Rind on :my decision made by the Fund sta~ or Cc~ra;tora, The Board shall he~ the objec6ons of the Pool Member at its next reguhdy sehc&~led a'e:efiag and its dec~ion will be final and binding on ali pax'lies. Any ~att broaght or defended by ~ Fund shall be brought cz defended op. ly in dxe came of flee Pool Member and/or its oflicexs or employees. There sh~ be Sul~li~d g~odically to each Pool Member a compute~ printout Lnvolving a atatemen~ of daixm. As r~spects the TML Municipal Liability Self-insur~c~ Plan, the Fund 03/09/04 15:29 FAX 512 491.__ 240_4 TML-IRP UNDERWRITING ~005 16. dmIi htve pr/odp/m enforcingits sulxogadon claims agahst rbeclaims ofPoolMe~cxcepias m cl~ of tho T~ M~d~e Workers' Compema/on Joint I. muranco Fund, which shall t,~ l~q~v, nce. The Pool l~lember aclmowledges thai it hsf r~.~ived a copy of fl~ Bylaws of t/~ Fund and agrccs m tbide by ~ Bylaws and any ~onts d~rem. Thg Fund agrees tJuat all Pm~d transactions will be annually audi~l by a nationally recognized cer~ed public accounting firm. If lcgally required, thc Fund shall cause to be filed the necessary ~c forms with ~ In~rnal Revenue The Fund shall maint~ cas~ r~erves and supplem~ reserves ~ ~ ~ce ~ s~ ~ p~cipI~. ~g ~m a~ ~t~c~ ~ o~ ~t~ de~ m ~ cJ~m~ ~vel~ment ~ cl~im~ ~ ~t ~o~ y~ ~d, ~ ~ ~ ~ be eye.lc ~.~ ~c~ ~i~ ~ ~y ~o~ ~e. ~ F~d sh~ ~o cs~sh ~d m~n~ a ~c f~ R~ ot'~n~bud~ m ~r ens~ ~ ~ ~ of ~ F~d ~ ~ e~t ~ a pot~d~ ~c loss ~v~t. O~y ~nt Pool Memb~s ~y The Pool IVt~nb~r may cica m pnrdcipa~/n ~he P~md ady ~o the ext~nt of obtaining admiaistradve sggvices, and, ff desired and available, rcimurmce. In tha~ cvc~, the Pool M~mber shall not malco contriburlom as provided in Paragraph 5 nor receiv~ the covera~s provided /or in the TlVlL Self-Imurance Pisa, nor shall the TML Ioin~ Seff-lmuran~e Fund be liable for thc payment of claims agaimt gtc Pool Member. TheFund shall only handle andservice cl~i,~ for thePoolMember andpay ~am~out offundstobe depositedby thePoolMembe~ ia a sepal'at~ accoun! admini~eted by thc Fond for the payment ofcl~;m~ andjudgum~ts only agaimr ~ Pool Member as herinafter pr~vi&d. Notwithstanding thc provisions of any other Scclion of ~his h~flocal Agreement, a Pod Member who elects lo receive Aclmini.~6vc Sor~.' c~s Only as specif~l in the attached Declaraltons (hereinafter interred to as tl~"ASOPool Memb~") sballt~ subjcctto th~ following reqturemea~s and oond/fons: Although thc ASO Pool Member will receive coverage doo,men~z seliing forth thc coverages, provisiOnS, te~ns, conditions, cx~hsions md limlc~ie~s pmv/d~d for in rbe TML Self-Insurance Plans, these docunmm are not inwmdcd ~o and flldl not ct~t~ an insured.insurer rehdonship b~tween thc Fund or any o~i~s other Pool l~mber~ aad ch~ AS 0 Pool Member, bm rather are provided solely for tbepurpo~c~ of:. (1) defining ~he scope of claims theFund willb,,nme on betudfofh'~ AS O Pool Membcr, and (2) defufing the narae ~d scopg of claims and condifiom applicable thereto thai will be covel~d by reimurance, if avaihble and ob~ned by the A$O Pool Meanb~r, beyond ~he ASO Pool Member's self. insured i~enlion. ~ Fund-~hsl! noi i~elf be liable for the payment ofcl~im~ orjudgmenrs ag~in_¢i the elg~ing A$O Pool Member, nor to provide the electing A$O PoolMen~,r w-ich a ddeme of any such claims or suits a~ the expense or' the Fund. 'I~ Ftmd will ody msY. e paymems ~m behalf of the A$O Pool Meml~-r out of th~ A$O Pool Member's claims account 'I~e A$O POol Mem~ s~ co~ly ~th all requixemenrs of any r~insurer including but nor llmi~.d ro fumishingtimely claims repo~, propo~dsev, lemems that wouldimpac~the reinsurer as well as progress r~pons involving litigation. The A$O Pool Member fiuther agrees io hold tbe Fu~d harmlrss from any and all cla/m~ (including atwme¥ fees) ~ may be assorted agaim~ the Fund for the non-paymen~ of any claims due ~othe failure ofche ASO 1%ol Member to maintain adequsm reserves for the payr~ of clailnz aS wcll al clzlm~ ba.s~d upon breach of a duty of good faith and fair de~lln~ becaus~ of the ASO Pool Member's or their agents' conduc~ toward the ¢iaiman£. B. In coun~ion with claims within ~he scope of the coverage documents, the Fund shall provide the following services or on behalf of the ASO Pool Member as coufirrncd speoifically in ~he attached Dcclla'atioos: L Overall cominco and claims administration; 2. Loss ¢omml se. rvic~s ~o the ASO Pool Member ~o assist it in &v¢loplng aplan of loss tonal to aimmp~ ~o control or reduce the ~requcncy and scvc~i~ of ctaims against it; Rcvis~l 10/90 03/09/04 15:30 FAX 512 491 2404 TML-IRP UNDERWRITING ~005 3. Claims s~rvicing hicluding iuvesfi~alion and,zeomm~ndmion by il~ Fund's couu~u~rs; periodic m~e~s with time A$O Poo! 'Mtmb~$ cl~{,,,~ official or claims corneille ~nded by ~xcsenmfives of Couua~rs; Storage and reu~ntiou of claims records; periodic MIS repor~ d~ling claims ~ud loss intonua~iou and history. The Feud sh~ll charge lime AS0 Pool Membe[ its usual and customary cha~es fo~ The a~o~esaid services based on actual scl'vices provided. Alloca~d ¢iuim expenses, ~cluding cideuse auoruey'm ~es, discoveiT fee~, expert mud WilAeSS fees and cou.n costs shall be paid by dee Fuud ou behalf ~the ASO Pool Member out of the ASO Pool Member's ~]nirn~ accouu[ ~ pan of th~ adminisl~afi~e services l:m'ovided by the Pool, but sh',Ol never be an exp~n~- or liability of ~ Fund but rat~xcr is solely that of fl~e AgO Pool Member. Th~ Fu~d shall haudle all liability and uu~)mohil~ physical damage claims and ova, co~xdinate md make ruc~mm~da~ions hi ¢ouumcfion wiTh ihedefause ofiuy iud allliabiiRy lawsuiis cow~l u~cl~ ikls A~rm~m~ut ai~luumpi no~icehas been ~iven. The ASOPooI Memb~hereby appo[ntsFuudsu~ffand Cuuwac£ors asiis ag~nt~toaciin allmau.~r~p~ai~ingto prucessiug and handling of clsims ~uv~ed ~ A~t and shall cooperate fully in supplyiAg auy infom'~on nc~d~d or helpful in serd~m~t or d~use of such ¢]aim~. A~ ~$pects liability ~laims. The Fund suiff and Conwactors shall cant on ell nc~ialiou6 with cbe etaiman! or his attorney, but no setTlemenT shall be made wiThout ex-pl~ss ptlor approval of the/V.qO Pool Mernb~. All claims will be discussed wiTh The ASO Pool Member's claims official or claims ~ommiuee oa a periodicbssis. As ilffcmmafion oa each claim develops, The Fuad s~affand Contractors shall mak~ r~¢on'uncadafions ¢ouogning ¢laimtescrv~, seul~ncut and wh~h~r or not a ~ase should be ~e,d or $~ded or a judgn'~nt should t~ apl'~aled, but mil d~cisiom on individual cases shall be mad~ by the ^SO Pool Member. In thc event of liiigation, the i:tmd staff ~d Contractors will retain on behalf ot the A$O Pool M~ub~r legal counsel approved by thc A$O Pool Member u) r~Ftes~t i~ and will supervis~ ~h¢ d~fcus¢ of ~h¢ litigation, including arty appeals. The ASO Pool Member shall establish in iu name a"cl aim ~ account" at a bank designated by the Fund, out of which Th~ Fund, d-Jrough its agents, shall pay on behalf of tl~ ASO Pool Mvmber qual~fied ¢lahm or {oss~ and allocated clahn~ exp~nse including court costs, thes and expeu.¢es of a~meys, independent i~wstiga~ors, exper~ oad wim~s~¢s and all other costs, cha~ges or expense p~op~rly chargeable to a qualified claim o~ to~s. Funds shaU b~ provided at tl~ incep~on of the ASO ~'s selbinsurance program md promptly from following furmula based on ~fima~.~ ~umished by th~ Fund of the m~ipau~t or actual l=vol and volum~ of quali~d allotted =~peuses: The ASO Pool Member ~hall ti=posit inm the account ini~ia{.]y an amounl equal I~ o~u~-foui~h (~,) o~ thc ~sdma~ed volume of qualified clai~ or losses aud allocated chum eXl~Us~s duriag the 'filet twelw (! 2) months of Rs sul~-in.v~c~ program and each mou~h ~. ur soou~ ~f necess,~, shall deposit into The a¢couut an amotm~ suff~e,x to ~xor~, main~n or in~rease ~he account balance amoun~ equal ~o oae-fou~ QA) of the ~sBmated volumc of qon]~ed ¢lali~ o~ losses mmd allocated claim =xpeus=s dming thc new ~vclve (12) months. The FuAd shMl account m rheAS0 Pool Memb~rrnonthly for ~~ ~ ~8c1~ ~co~t, ~ my~ ~ cl~ acco~tb~e ~ps ~ ~low ~ p~r (50%) of ~ ~mC~ ~n~y c~ed ~ ~ ~ a~vc fo~ ~ ASO P~I M~ s~ ~o~fly ~R ~fio~ ~& W ~to~ ~ ~ b~. ~g ~y ~ of ~e ~ ~ C~S ~o~t ~ ~ ~ ~t (5~) ~Iess of~ ~y c~ ~m u~ ~ fo~ oily ~d fl~ ~ ~ be ~d ~t ~d ~ ~0 P~I M~ &~ ~fly pay qu~d cl~ or ~s~s out ~o~r ~s ~ it ~osi~ ~ ~ c~ ~o~nt ~ ~o~ aec~s~ ~ z~to~ ~ ac~ ~ i~ ~ bfl~ce, ~ ~ ~t ~ ASO Pool M~ber lhall ~ p~y n~ad ~d ~ ~m pry ~e ~d c]~ ~ loss ~cfly out of o~ ~ ~ ~t ~to ~ I~ is expressly u~datsmod that the Fund sha)l not be ~quired to ~dvmce it~ ov~ [mu,& or ~hom of&o Joint Seff-Imur~u~ Fund ~o pay claims or los~s or al]ocatod ~xpenses hereuuder, or coniinue to perform my services h~mmder }grime ASO Pool Member fails to provide necessary ~1 a~luam funds as he~in se~ for~. I'. shall be ~ sole responsibility of ~he ASO Pool Membe~ to ~s~blish ~ maintain adequat~ reserves in addilion ~o the limited ~unds in th~ C}~{m~ account for paymem of all claims, including catasu'ophic clainu. The Fu1~l will pmvid~ reserve recommendahons a~d estimatei of liabil~ exposures, bu~ both parties realize Thetju c~s mci juries b ave wide discretion in assessing damage awards and the award iA any particular case may be g;[eatly in excess of or greatly leas than a recommer~ded reserve. 03/09/04 15:30 FAX 512 491 2404 TML-IRP UNDERWRITIN~ ]iithcr psrty to this a~emem may at any rlrr~ tmminam it ttpOu Sixty (60) days wrla~ no, ce for any reason as to either all pendiv.g z.~ad futura ~'~m% O~ almr,~fively, only as to futm~ el.i-,,, In ~ event canc. dlatio~ is with respect to both pending and fature claim~ the loager be obligated to ImfOrm the semces outlin~ in ~s Agm~t and shall promptly and in an or~ly manner fm'wa.~ te thr ^SO Pool Meml:~ orits desi~ all pmdlng ~aim file~. In the event lzrminalion is only as to f~l~ clai~, gai$ AiI~merR shall ~ in full force ,md eifect with respect to allpending claimsamt ~ occul~g butflotrcported prior to c-~llalion until concluded. In eith~ Pool M~abe= shall be ¢otitlexi, i~ it so reque~ and at its own extm~ to have th~ Closed claim filed r~rleved ~ smea~ and delivered to it In thc event the ASO Pool Member docs not re~u~ clo$~l flies in the notice of canceilalion, bOWeV~, they will b¢ al th~ FRnd's option ~ tha ASO Pool Member 'ahall have no r~cotlrs¢ asaillsi the l:Mnd for fail~c to ~ them. TO BE COMPLETED BY Mlr. MBER: ._ EMPLOYER MEMBEi~' FUND CONTACT (Sec Section 10); Mcml~ Name Name of Contact Title Mailing Aiklr~$ Address (if different from above) City Zip Phone $IGNATIfR~ OF AUTHORIZED MEMBER OFFICIAL Tide Member's Pederal Tax LD. Numbar __ - This InFormation is MANDATORY mm lmm Ill! · I Il J. IJI Dam TO BE COMPLETED BY FUND: (OFFICE USE ONLY) 10/90 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance approving a Commercial Operator Airport Lease Agreemem between the City of Demon and Group CBS, inc. BACKGROUND Group CBS, Inc. wishes to lease a parcel of land totaling approximately 16,200 square feet at the Denton Airport. The terms of the lease will obligate Group CBS, Inc. to construct a 6,400 square foot hangar and office facility within 720 days. This facility will be constructed for the purpose of conducting commercial aviation activities. Mr. Ledbetter's original request was to divide the 32,400 square foot lot into one 14,400 square foot lot and one 18,000 square foot lot. The Airport Board recommends that in order to sustain future development viability on the unused portion of the divided lot, the lot be divided evenly into two 16,200 square foot lots. Mr. Ledbetter is proposing to relocate his avionics repair and installation business, which includes three employees from Gainesville to Denton. OPTIONS I. Approve the lease as proposed. ii. Provide staff direction with additional lease options. RECOMMENDATION The Airport Advisory Board recommends approval of the proposed lease 6 to 1. ESTIMATED SCHEDULE OF PROJECT The lease would become effective April 1, 2004 and continue through the 31st day of March 2034 (30 years). The lease also provides for two successive option terms often years each. PRIOR ACTION/REVIEW The City Attorney's Office has reviewed the proposed lease. FISCAL INFORMATION The lease rate for the identified site is $0.17 per square foot per year. The lease rate for the first two years will total $2,754 per year. The lease agreement provides for rate adjustments, Consumer Price Index adjustments, every other year for the term of the lease as per FAA requirement. EXHIBITS Ordinance Lease Agreement Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Our Documents\Ordinances\04\Group CBS Airport Lease.doc ORDINANCE NO. AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND GROUP CBS, INC.; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a airport lease agreement for commercial operator between the City of Denton and Group CBS, Inc., in substantially the form of the Airport Lease Agreement which is attached to and made a part of this ordinance for ali purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AIRPORT LEASE AGREEMENT COMMERCIAL OPERATOR This Lease Agreement is made and executed to be effective this First day of April, 2004 (the "Effective Date") at Denton, Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", and Group CBS, h~c, hereinafter referred to as "Lessee". WITNESSETH: WHEREAS, Lessor now owns, 'controls and operates the Denton Municipal Airport '(the "Airport") in the City of Denton, County of Denton, State of Texas; and WHEREAS, Lessee desires to lease certain premises at the Airport and construct and maintain an aircraft hangar and related aviation facilities thereon; NOW, THEREFORE, for and in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows: I. CONDITIONS OF 1~ .F,A RF. AGREEMENT NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS SECTION SHALL BE BINDING. activities agreeing: PRINCIPI,ES OF OPFR ATIONS. The right to conduct aeronautical and related for furnishing services to the public is granted to Lessee subject to Lessee 1. To furnish said services on a fair, equal and not unjustly discriminatory basis to ail users thereof; and o To charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, that Legsee may be allowed .to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. NON-DIgCRIMINATION: Lessee, for itself, its personal representatives, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the !and that: 1. No person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; 2. In the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department o£ Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi- nation in Federally assisted programs of the Department of Transportation - Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. C. RIGHT. OF INDIVIDIIALS TO MA1NTA1N AiRCRAFT_ It is clearly understood by Lessee that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform. D. NON-F, XCLIJSIVE RIGHT. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Title 49 U.S.C. Appendix § 1349. E. PIJ~I,TC AREA~S. Lessor reserves the right to further develop or improve the landing area of the Airport as it sees. fit, regardless of the desires or views of Lessee, and without interference or hindrance. Lessor shall be obligated to maintain and keep in good repair the landing-area of the Airport and all publicly owned facilities of the Airport, together with the · right to direct and control all activities of Lessee in this regard. During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the Airport which, in the opinion of Lessor, would limit the usefulness or safety of the Airport or constitute a hazard to aircraft or to aircraft navigation. 5. This Lease Agreement shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States or agency thereof, FINAL LEASE AGREEMENT GROUP CBS, INC - Page 2 relative to the operation or maintenance of the Airport. II. I.EA~qED PREMTSER Lessor, .for and in consideration of the covenants and agreements herein contained, to be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease from Lessor, for the lease tem~ described in Article llI, the following described land situated in Denton County, Texas: A. l.and. A tract of land, being approximately 90 feet by 180 feet, 16,200 square feet, or 0.3119 acres, drama and outlined on Attachrnent "A", and legally described in Attachment "B," such attachments being incorporated herein by reference (the "Leased Premises"). Together with the right of ingress and egress to the Leased Premises; and the right in con'nnon with others so authorized of passage.upon the Airport property generally, subject to reasonable regulations by the City of Denton and such rights shall extend to Lessee's employees, passengers, patrons and invitees. For purposes of this agreement, the term "Leased Premises" shall mean all property located within the metes and bounds described and identified within Attachment "B", including leasehold improvements constructed by the Lessee, but not including certain easements or property owned and/or controlled by the Lessor. A legal 'description of the leased premises is not currently attached as Attachment "B". Lessee shall deliver to Lessor no later then 30 days after the date of this Agreement a legal description of the leased premises accurately describing the leased premises that is acceptable to Lessor. If Lessee fails to do so,. Lessor at its option may terminate this Agreement, in which case it will have no further force and effect. The approved legal description will be attached to this Agreement as Attachment "B". B. IMPROVEMENTS PROVIDED BY I.ERSOR: NONE: There will be no improvements provided by Lessor, except as set forth in Article [I.E. "Access to Utilities" below. For the purpose of this Lease Agreement, the term "Lessor improvements" shall mean those things on or adjacent to the Leased Premises belonging to, constructed by, or to be constructed by the Lessor, which enhance or increase, the value or quality of the Leased Premises. Unless otherwise noted herein, all Lessor improvements are and will remain the property of Lessor. All Lessor improvements must be described in detail above, or above referenced and attached to this Agreement in an exhibit approved by Lessor. C.. IMPROVEMENTS PROVIDED PlY I.E~qEE. On the Leased Premises, Lessee shall construct a hangar/office facility not less than 6,400 square feet with taxiway access and appropriate culverts or drainage as required by City ordinances in the utility right of way south and north of the proposed hangar as well as other improvements as determined necessary by City ordinances (the "Lessee's Improvements"). The Lessee's Improvements FINAL LEASE AGREEMENT GROUP CBS, INC - Page 3 shall be completed not more than 720 days from the Effective Date of this Lease Agreement as evidenced by the issuance of a certificate of occupancy (the "Construction Period"). Notwithstanding anything contained in this Lease Agreement to the contrary, a failure to complete the Lessee's Improvements within the Construction Period may, at the sole option and discretion of the Lessor, result in the immediate termination and cancellation of this Lease Agreement upon 30 days written notice of cancellation to Lessee. in such case Lessee's rights under the Lease Agreement will immediately cease and be forfeited, and all of Lessee's Improvements shall immediately become the property of Lessor at no cost, expense or other compensation paid by Lessor to Lessee; and Lessee shall immediately vacate the Leased Premises. D. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the Leased Premises, easements for public access on roads and taxiways. E. ACCESS TO 11TII.ITIES Lessor represents that there are water, sewer and 3- phase electricity lines within close proximity to the Leased Premises available to "tap-in" by Lessee, and that the same are sufficient for usual and customary service on the Leased Premises. III. TERM The term of this Lease Agreement shall' be for a period of thirty (30) years, com- mencing on the 1st day of Apr/l, 2004 and continuing through the last day of March of 2034, unless earlier terminated under the provisions of the .Lease Agreement (the "Lease Term"). Any attempt by Lessee to renegotiate this Lease Agreement shall be in writing addressed to the. City Manager 0r his designee at least one hundred eighty (180) days before the expiration of the Lease Term, and at least 180 days before the expiration of any additional renegotiated period. Lessee has the option to renew for two (2)additional ten (10) year terms. The rental and terms to be negotiated shall be reasonable and consistent with the then value, rentals and terms of similar property on the Airport. IV. PAYMENTS; RENTAl ,S AND FEES Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement, the following payments, rentals and fees: A. LAND RENTAl, shall be due and payable in the sum of $0.17 per square foot or $2,754 per year (the "Original Rent"), payable in twelve (12) equal monthly installments in the sum of Two Hundred and Twenty Nine and fifty cents ($229.50) in advance, on or before the 1st day of each and every month during the term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in whole on or before the 1st day of April, at the beginning of the City's fiscal year, each and every year of this Lease Agreement. Notwithstanding the foregoing, the annual'lease rental will be reduced by the current lease FINAL LEASE AGREEMENT GROUP CBS, INC - Page rate per square foot, as adjusted by the CPI-U referenced in Section IV.C., times the number of square feet comprising all easements established in accordance with Article It (D). B. I.ESSOR IMPROVEMF. NT,~ RENTAl,R. NONE: improvements on the Leased Premises. There are no Lessor C, PAYMENT: PENAl .T¥, AD/[ ~STMF, NTS. All payments due Lessor from Lessee shall be made to Lessor at the offices of the Finance Department of the City of Denton, Customer Service Division, 60I West Hickory, Denton, Texas, unless otherwise designated in writing by the Lessor. If payments are not received on or before the 15th day of the month, a five percent (5%) penalty will be due as of the 16th. If payments are not received by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid rental/fee amount will be due. A one percent (1%) charge will be added on the first of each subsequent month until the unpaid rental/fee payment is made. The Original Rent for the Leased Premises shall be readjusted at the end of each one year period during the Lease Term on the basis of the proportion that the then current United States Consumer Price Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics bears to the previous odd month 2004 index, which was ~ (1982-84 --= 100). Each rental adjustment, if any, shall occur on the 1st day of April, beginning 2006, and every other year thereafter on such date. The adjustments in the yearly rent shall be determined by multiplying the Original Rent by a fraction, the numerator of which is the index number for the last month prior tO the adjustment, mhd the denominator of which is the index number applicable at the execution of this Lease Agreement. If the product of this multiplication is greater than the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of the next rental adjustment as called for in this section. If the product of this multiplication is less than the Original Rent there shall be no adjustment in the annual rent at that time, and Lessee shall pay the previous year's annual rent until the time .of the next rental adjustment as called for in this section. In no event shall any rental adjustment called for in this section result in an annual rent less than the previous year's annual rent. The adjustment shall be limited so that the annual rental payment determined for any given two-year period shall not exceed the annual rental payment calculated for the previous CPI adjustment by more than twenty percent (20%) percent. If the consumer price index for ail urban consumers (CPI-U) for the Dallas-Fort Worth geographical region, as compiled by the U.S. Deparm~ent of Labor, Bureau of Labor Statistics, is discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the formula set forth above, but by substituting the index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For All Items For All Urban .Consumers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas- Fort Worth geographical region and the U.S. City Average are discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the United States Department of Labor that are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical FINAL LEASE AGREEMENTGROUP CBS, INC - Page 5 region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics concerning the purchasing power of the consumer dollar during the Lease Term, the remaining rental adjustments called for in this section shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor. V. RIGHTS AND O1:1¥ JGATIONS OF LESSEE A. IISE OF I,EA,qRD PRF. MI,qF,~S. Lessee is granted the non-exclusive privilege to engage in or pr°vide the following: 1. Hangar .qpaee !.ea.qina~ Lessee is granted the non-exclusive right to rent hangar space. Office Space Lexqing_ Lessee is granted the non-exclusive fight to rent office space. Avh~nics Repair and Installation. Lessee is grax~ted the non-exclusive fight to install, remove and repair of radio, GPS equipment, electronics and avionics equipment on Lessees and General Aviation aircraft upon the leased premises. Avionics and F, qnipment Sales_ Lessee is granted the non-exclusive fight to engage in the sale and/or brokering of aircraft avionics, GPS equipment, electronics and radio components. 5. T/e-Down ~qervice~. Lessee is granted the non-exclusive right to charge for tie- down services on Lessee's property. Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct any services not specifically listed in this Lease Agreement. The use of the Leased Premises by Lessee, its tenants, employees, invitees or guests shall be limited to only those private, commercial~ retail or industrial activities having to do with or related to airports and avia- tion. No person, business or corporation may operate a commercial, retail or industrial business upon the Leased Premises or upon the Airport without a lease or license fi.om Lessor authorizing such commercial, retail or industrial activity. The Lessor shall not unreasonably withhold authorization to conduct aeronautical or related services. B. STANDARDS. Lessee shall meet or exceed the following standards: 1. ~ Lessee shall file with the Airport Manager and keep current its mailing addresses, telephone numbers and contacts where it can be reached in an emergency. 2. l,ist. Lessee shall file with the Airport Manager and keep current a list of its tenants and sublessees. FINAL LEASE AGREEMENT GROUP CBS, INC - ?age 6 3. C, arxdu~. Lessee shall contractually require its employees and sublessees (an.d sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee shall promptly enforce its contractual rights in the event of a default of such covenants. 4. lJtilities; Taxes and Fees_ Lessee shall meet all expenses and payments in connection with the use of the Leased Premises and the rights and privileges herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed. 5. I,aws. Lessee shall comply with alt current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, including rules, regulations and ordinances promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place ail necessary and/or required licenses or permits. 6. Maintenance of Property. Lessee shall be responsible for the maintenance, repair and upkeep of all property, buildings, structures and improvements, including the mowing or elimination of grass and other vegetation on the Leased Premises, and shall keep the Leased Premises neat, clean and in respectable condition, free from any objectional matter or thing, including trash or debris. Lessee agrees not to utilize or permit others to utilize areas on the Leased Premises which are located on the outside of any hangar or building for the storage of wrecked or permanently disabled aircraft, aircraft parts, automobiles, vehicles of any type, or any other equipment or items which would distract from the appearance of the leased premises. Lessee agrees that at no time shall the Leased Premises be used for a flea market type sales operation. Painting of Buildings. During the Lease Tem~ of this Lease Agreement and during each extension, Lessor shall have the right to require, not more than once every five years, that the metal exterior of hangar(s) or building(s) located on the Leased Premises be repainted. The Lessor may require Lessee to repaint said exteriors according to Lessor's specifications (to specify color of paint, quality of workmanship and the year and month in which the hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete the painting in accordance with such specifications within one (1) year of receipt of notice from Lessor. Lessee agrees to pay all costs and expense involved in the hangar or building painting process. Failure of Lessee to complete the painting required by Lessor, within the one (1) year period shall constitute Lessee's default under this Lease Agreement. 8. l lnanthorized use of l.eased Premises_ Lessee may not use any of the Leased Premises for any use not authorized herein unless Lessor gives Lessee prior written approval of such additional use. Without limiting the foregoing the Leased Premises shall not be used for the operation of a motel, hotel, FINAL LEASE AGREEMENT GROUP CBS, INC - Page 7 10. restaurant, private club or bar, apartment house, storage of recreational vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail, or other purposes, except as authorized herein. Dwell/n?. It is expressly understood and agreed that no dwelling or domicile may be built, moved to or established on or within the Leased Premises nor may lessee, its tenants, employees, invitees, or guests be permitted to reside or remain as a resident on or within the Leased Premises or other Airport premises. Quit possess/an. Lessee shall quit possession of the Leased Premises at the end of the Lease Term or any renewal or extension thereof, or upon cancellation or termination of the Lease Agreement, and deliver up the Lease Premises to Lessor in as good condition as existed when possession was taken by Lessee, reasonable wear and tear excepted. lndernnity, Lessee must indemnify, hold harmless and defend the Lessor, its officers, agents and employees, from and against liability for any and all claims, liens, suits, demands and/or actions for damages, injuries to persons (including death), property damage, (including loss of use), and expenses, including court costs, attorneys' fees and other reasonable costs, occasioned by or incidental to the Lessee's occupancy or use of the Leased Premises or the Airport and/or activities conducted in connection with or incidental to this Lease Agreement, including all such causes of action based on common, constitutional or statutory law, or based in whole or in part upon the negligent or intentional acts or omissions of Lessee, its officers, agents employees, invitees or other persons. Lessee must at all times exercise reasonable precautions on behalf of, and be solely responsible for, the safety of its officers, employees, agents, customers, visitors, invitees, licensees and other persons, as well as their property, while in, on, or involved in any way.with the use of the Leased Premises. The Lessor is not liable or responsible for the negligence or intentional acts or omissions of the Lessee, its officers, agents, employees, agents, customers, visitors and other persons. The Lessor shall assume no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects, whether real or alleged, which may now exist or which may hereafter arise upon the Leased Premises, responsibility for all such defects being expressly assumed by the Lessee. The Lessee agrees that this indemnity provision applies to ail claims, suits, demands, and actions arising from all premise defects or conditions. THE I.ESSOR AND THF. I.ES.qEE EX'PRF. SRI,Y INTEND TH[q INDEMNITY-PROVISION TO REQIITRE I,ESSEE TO 1NT)EMN1FY AND PROTECT THE I.RSSOR FROM THE CONSRQIIENCES OF THE I.ESSOR'S OWN NEGT.TGENCE kVHTI.E T,R,q~qoR TS PARTICIPATING IN THIS T.EASE AGREEMENT WHERE THAT NF, GI,IGENCE IS A CONCIFRRING CAILqE OF THF. INJITR¥: DEATH; OR DAMAGF.. FINAL LEASE AGREEMENTGROUP CBS, INC - Page 8 NOTWITHSTANDENG THE TERMS OF THE PRECEDING SENTENCER; THIS 1NDF, MNITY PROVISION DOF. S NOT APP],¥ TO ANY CI,AtM; I.OSS: DAMAGE: CAIISE OF ACTION; SIIIT AND T.IARiI.IT¥ WHERE THE INJI FRY: DEATH, OR DAMAGE RESIII~TS · EROM THE SOl,lq. NRGIJGENCE OF THE I,ESSOR OR ANY OE ITS EMPl ,OYEES: CONTRA CTOR S: OR AGENTS: I ~qMIXED WITH THE EAIII,T OF ANY OTHER PERSON OR ENTITY. t2. Chemicals. Lessee agrees to properly store, collect and dispose of ali chemicals and chemical residues; to properly store, confine, collect and dispose of all paint, including paint spray in the atmosphere, and paint products; and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints. Further, the Lessee shall be solely responsible for all discharges, whether accidental or intentional, of any chemical and for the costs associated with the cleanup, remediation and disposal of said chemicals: 13. H~z~rdmm Activities. Should Lessee violate any law, role, restriction or regulation of the City of Denton or the Federal Aviation Administration, or any other regulatory authority, or should the Lessee engage in or permit other persons or agents to engage in activities which could produce hazards or obstruction to air navigation, obstructions to visibility or interference with any aircraft navigational aid station or device, whether airborne or on the ground, then Lessor shall state such violation in writing and deliver written notice to Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the Leased Premises who are causing said violation(s), and upon delivery of such written notice, Lessor shall have the fight to demand that the person(s) responsible for the violation(s) cease and desist from all such activity creating the violation(s). In such event, Lessor shall have the right to demand that corrective action, as required, be commenced immediately to restore the Leased Premises into conformance with the particular law, role or aeronautical regulation being violated. Should Lessee, Lessee's agent, or the person(s) responsible for the violation(s) fail to cease and desist from said violation(s) and to immediately commence correcting the violation(s), and to complete said corrections within twenty-four (24) hours following written notification, then Lessor shall have the right to enter onto the Leased Premises and correct the violation(s) at the sole cost and expense of Lessee, and Lessor shall not be responsible for any damages incurred to any improvements on the Leased Premises as a result of the corrective action process. In addition, such violation shall be considered a material default by Lessee authorizing Lessor, · at its .sole. option and discretion, to immediately terminate and cancel this Lease Agreement. FINAL LEASE AGREEMENT GROUP CBS, INC - Page C..qlGNS. No signs, posters, or other similar devices ("Signage") shall be placed on the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport property without the prior written approval of Lessor. Lessee, at its sole expense, shall be responsible for the creation, installation and maintenance of all such Signage. Lessee shall pay to Lessor any and all damages, injuries, or repairs resulting from the installation, maintenance or repair of any such Signage. Any Signage placed on the Leased Premises shall be maintained at all times in a safe, neat, sightly and good physical condition. All Signage shall be removed.fi.om the Leased Premises by Lessee immediately upon receipt of instructions for removal of same from Lessor, including without limitation, upon expiration or termination of this Lease Agreement. if Lessee fails to remove the Signage then Lessor may do so at the sole cost and expense of Lessee. D. ENTRY. Lessor and its designees shall have the right to enter the Leased' Premises upon reasonable advance notice (written or oral) and at any reasonable times for the purposes of inspecting the Leased Premises, performing any work which Lessor elects to perform under this Lease Agreement, and exhibiting the Leased Premises for sale, lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any work, which under any other provision of this Lease Agreement Lessee is required to perform, and any performance by Lessor shall not constitute a waiver of Lessee's default. VI. COVENANTS BY Lessor hereby agrees as follows: A. PEACEFI IL F. NJC)YMF. NT_ Upon on payment of all rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the Leased Premises and all fights and privileges herein granted; B. COMPIJANCF.. Lessor warrants and represents that in the establishment, construction and operation of the Airport, that Lessor has heretofore and at this time is complying with all existing rules, regulations, and criteria distributed by the Federal Aviation Administration, or any other governmental authority relating to and including, but not limited to, noise abatement, air fights and easements over adjoining and contiguous areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for any action of trespass or similar cause of action by virtue of any aerial operations of adjoining property in the course of normal take-off and landing procedures from the Airport; Lessor further wan-ants and represents that at all times during the Lease Term, or any renewal or extension of same, that it will continue to comply with the foregoing. VII. SPECIAl. coNDITION.q It is expressly understood and agreed by and between Lessor and Lessee that this Lease Agreement is subject to the following special terms and conditions. FINAL LEASE AGREEMENT GROUP CBS, INC - Page I~I~N-WAYS AND TAXIWAYS. Because of the present thirty thousand (30,000) pound continuous use weight bea~ing capacity of the runway and taxiways of the Airport, Lessee herein agrees to limit all aeronautical activity including landing, take-off and taxiing, to aircraft having an actual weight, including the weight of its fuel, of thirty thousand (30,000) pounds or less, until such time that the runway and desigu~ated taxiways on the Airport have been improved to handle aircraf~ of such excessive weights. It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that Lessee agrees to abide by any such changes or revisions as such studies may dictate. "Aeronautical activity" referred to in this clause shall include any activity of the Lessee or its agents or subcontractors, and its customers and invitees, but shall not include those activities over which it has no solicitory part or control, such as an unsolicited or unscheduled or emergency landing. A pattern of violating the provisions of this section on two or more occasions shall be sufficient to cause the immediate termination of this entire Lease Agreement and subject Lessee to liability for any damages to the Airport that might result. VIII. I,EASF. HOI D IMPROVEMENTS A. REQIIIREMENTS: Before commencing the construction of any improvements on the Leased Premises including Lessee's Improvements (the "Lease Improvements'), Lessee shall submit: Documentation, specifications, or design work, to be approved by the Lessor, which shall establish that the improvements to be built or constructed upon the Leased Premises are in conformance with the overall size, shape, color, quality and design, in appearance and structure of the program established by Lessor on the Airport. 2. All plans and specifications showing the location upon the Leased Premises of the proposed construction and improvements; 3. The estimated cost' of such construction. No construction may commence until Lessor has approved the plans and specifications and the lOCation of the Lease Improvements, and the estimated costs of such construction. Approval by the Lessor shall not be unreasonably withheld. Documentary evidence of the actual cost of construction on public areas only (such as taxiways) shall be delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he shall have found to have been paid by Lessee, and the findings of the City Manager when endorsed by him upon said contract shall be conclusive upon alt parties for ail purposes of this Lease Agreement. No later than 30 days after completion of the Lease Improvements, Lessee shall submit to Lessor detailed as built plans of the Lease Improvements and documentary FINAL LEASE AGREEMENT GROUP CBS, INC - Page evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements ("Cost to Construct Lease Improvements"). B. ADDITIONAL CONSTRIICTION OR IMPROVEMFNTS: Lessee is hereby authorized to' construct upon the Leased Premises, at its own cost and expense, buildings, hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this Lease Agreement, provided however, Lessee shall comply with all of the requirements of Section VIII.A., above. Such additional improvements shall be a part of the Lease Improvements. C. OWNERSHIP OF IMPRC)VF, MF. NTS: Except as otherwise provided in this Lease Agreement, the Lease Improvements constructed upon the Leased Premises by Lessee shall remain the property Of Lessee during the Lease Term subject to the following conditions, terms and provisions: 1. Removal af gnildings. No building or permanent fixture may be removed from the Leased Premises. Assumption. The Lease Improvements shall automatically become the property of Lessor absolutely free, without any cost to Lessor, at the end of the Lease Term, or any extension thereof. FMlure to Comnlete 1 ~qsee',g Improvement.q, The Lease Improvements shall immediately become the property of Lessor at no cost, expense, or compensation to Lessee should Lessee fail to complete the Lessee's Improvements within the Construction Period as provided in Section II.C of this Lease Agreement. C,~nc, e, ll~t{an or Termination, Should this Lease Agreement be cancelled or tenrfinated before the end of the Lease Term, or extension thereof, Lessor shall have the right to purchase all of the Lease Improvements. In the event of a cancellation or termination, other then due to a default by Lessee that has not been cured as provided below, the purchase price shall be equal to the most recent value of the Lease Improvements as determined by the Denton County Central Appraisal District ("Value of the Lease Improvements") reduced by 1/30 for each year of the Lease Term that has expired as of the date of termination (the "Purchase Price"). Should the Denton County Central Appraisal District not determine a separate value for the Lease Improvements then the Purchase Price will be determined taking the Cost to Construct the Lease Improvements reduced by 1/30 for each year the Lease Term has · expired as o.f the date of termination, if the termination or cancellation is due to a default by Lessee that has not been cured within 30 days after written notice of default to Lessee, then the Purchase Price as determined above shall be reduced by 50%. IX. SIIBROGATION OF MORTGAGEE FINAL LEASE AGREEMENT GROUP CBS, INC - Page 12 Any person, corporation or institution that lends money to Lessee for construction of any hangar, structure, building or improvement and retains a security interest in said hangar, structure, building or improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon the Leased Premises and operate or manage said hangar, structure, building or improvement according to the terms of this Lease Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the lom~ is paid in full, whichever comes first, but in no event longer than the Lease Term. It is expressly understood and agreed that the right of the mortgagee referred to herein is limited and restricted to those improvements constructed with funds borrowed from mortgagee, those improvements purchased with the borrowed funds, and those improvements pledged to secure the refinancing of the improvements. X. RIGHT OF EASEMENT Lessor shall have the right to establish easements,, at no cost to Lessee, upon the Leased Premises for the purpose of providing underground utility services to, from or across the Airport property or for the construction of public facilities on the Airport. However, any such easements shall not interfere with Lessee's use of the Leased Premises and Lessor shall restore the property to the original condition as is reasonable practicable upon the installation of any utility services on, in, over or under any such easement at the conclusion of such construction. Construction in or at the easement shall be completed within a reasonable time. XI. ASSIGNMENT_©E LEASE Lessee expressly covenants that it will not assign this Lease Agreement, convey more than fit2y percent (50%) of the interest in its business, through the sale of stock or otherwise, transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose, except for rental of hangar space or tie-down space for storage of aircraft only, without the written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval of such sale, sublease, transfer, license, or assignment of the facilities for Airport related purposes; provided however, that no such assignment, sublease, transfer, license, sale or otherwise shall be approved if the rental, fees or payments, received or charged are in excess of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or otherwise. The provisions of this Lease Agreement shall remain binding upon the assignees, if any, of Lessee. XtI. tNSI IR ANC, F, A. RF. QIIIRED INSIIRANCE: Lessee shall maintain contim~ously in effect at all times during the term of this Agreement, at Lessee's expense, the following insurance coverage: FINAL LEASE AGREEMENTGROUP CBS, INC - Page 13 1. Comprehensive general liability covering the leased premises, the Lessee or its company, its persmmel, and its operations on the airport. Aircraft liability to cover all flight operations of Lessee. Fire and extended coverage for replacement value for all facilities used by the Lessee either as a part of this Agreement or erected by the Lessee subsequent to this Agreement. 4. Liability insurance limits shall be in the following minimum amounts: Bodily Injury and Property Damage: One Million Dollars ($1,000,000) combined single limits on a per occurrence basis. All policies shall name the City of Denton as an additional named insured and provide for a minimum of thirty (30) days written notice to the City prior to the effective date of any cancellation or lapse of such policy. 6. All policies must be approved by the Lessor. 7. The Lessor shall be provided with a copy of all such policies and renewal certificates. During the term of this lease, Lessor herein reserves the right to adjust or increase the liability insurance amounts required of the Lessee, and to require any additional rider, provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by Lessor; provided however, that any require- ments shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal Airport in size and in scope of aviation actiVities, located in the southwestern region of the United States. Lessee herein agrees to comply with all increased or adjusted insurance requirements that may be required by the Lessor throughout the original or extended term of this lease, including types of insurance and monetary amounts or limits of insurance, and to comply with said insurance requirements within sixty (60) days following the receipt of a notice in writing from Lessor stating the increased or adjusted insurance requirements. Lessee shall have the right to maintain in force both types of insurance and amounts of insurance which exceed Lessor's minimum insurance requirements. In the event that State law should be amended to require types of insurance and/or insurance amounts which exceed those of like or similar public use airports in the south- western region of the United States of America, then in such event, Lessor shall have the right to require that Lessee maintain in force types of insurance and/or mount of insUrance as specified by State law. FINAL LEASE AGREEMENT GROUP CBS, INC - Page 14 Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease. XIII. CANCFJJ,ATTON BY In the event that Lessee shall file a voluntary petition in bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought trader the provisions of any Federal reorganization act, or Lessee shall be divested of its estate herein by other operation of law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or conditions herein contained, or on its part to be perforated, the Lessor may give Lessee written notice to correct such condition or cure such default and, if any condition or default shall continue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may terminate this Lease Agreement by written notice to Lessee. In the event of default, Lessor has the right to purchase any or all of the Lease Improvements under the provisions of Section VtlI.C.4. hereof. XIV. CANCEl J,ATtON BY 1 Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of its obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of m~y one of the following events: (1) issuance by any court of competent juris- diction of a permanent injunction in any way preventing or restraining the use of the Airport or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or agreements contained herein and the hilum of Lessor to remedy such breach for a period of ninety (90) days after receipt of a written notice of the existence of such breach; (3) the inability of Lessee to use the Lease Premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, rule or regulation of any appropriate governmental authority having jurisdiction over the operations of Lessor or due to war, earthquake or other casualty; or (4) the assumption or recapture by the United States Government; or any authorized agency thereof, of the maintenance and operation of said airport and facilities or any substantial part or parts thereof. Upon the happening of any of the four events listed in the preceding paragraph, such that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its terms, except, however, that the use of the Leased Premises shall not be limited to aviation purposes, their use being only limited by such laws and ordinances as may be applicable at that time. XV. MI.qCRI J ANEC)I IS PR OVISIONS FINAL LEASE AGREEMENT GROUP CBS, INC - Page 15 A. ENTIRE AGI~F. EMENT. This Lease Agreement constitutes the entire understanding between the parties and as of/ts Effective Date supersedes all prior or independent Agreements between the parties covering the subject matter hereof. Any change or modification hereof shall be in writing signed by both parties. B. BINDING EFFF~CT. All covenants, stipulations and agreements herein shall extend to, bind and inure to the benefit of the legal representatives, successors and assigns of the respective parties hereto. C. SEVF. RABII.FFY. If a provision hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Lease Agreement shall not be void; but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. D. NOTICE. Any notice given by one party to the other in connection with this Lease Agreement shall be in writing and shall be sent by certified mail, return receipt requested, with postage fees prepaid or via facsimile as follows: 1. If to Lessor, addressed to: City Manager City o f Denton 215 E. McKinney Street Denton, Texas 76201 Fax No.940.349.8596 2. If to Lessee, addressed to:' Mr. Finley Ledbetter Chief Executive Officer Group CBS, Inc. P.O. Box 1557 Gainesville, Texas 76240 Phone (800) 232-5809 Fax No. (940) 665-4681 E. HEADINGS. The headings used in this Lease Agreement are intended for convenience of reference only and do not define or limit the scope or meaning of any provision of this Agreement. F. GOVERNTNG I.AW AND VENII;rF.. This Lease Agreement is to be construed in accordance with the laws of the State of Texas and is fully performable in Denton County, Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease Agreement shall be a court of competent jurisdiction in Denton County, Texas. FINAL LEASE AGREEMENT GROUP CBS, [NC - Page 16 G. NO WAIVF. R. No waiver by Lessor or Lessee of any default or breach of covenant or term of this Lease Agreement may be treated as a waiver of any subsequent default or breach of the same or any other covenant or term of this Lease Agreement. H. ]gD_AG.E~Z~. During all times that this Lease Agreement is in effect, the parties agree that Lessee is and shall not be deemed an agent or employee of the Lessor. IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the ]Effective Date first above written. CITY OF DENTON, TEXAS, LESSOR BY: MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~ GRouP CBS, ]NC. ~ LEDBETTER, CHIEF EXECUTIVE OFFICER FINAL LEASE AGREEMENT GROUP CBS, INC - Page 17 ACKNOWLEDGMENTS THE STATE OF TEXAS . § COUNTY OF DENTON § This instrument was acknowledged before me on the __ day of Michael A. Conduff, City Manager of the City of Denton, Texas, municipality. ~ 2004, by on behalf of said NOTARY PUBLIC, STATE OF TEXAS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the II day of ~A ~ · Finley Ledbetter, Chief Executive Officer, Group CBS, Inc. ,2004 by ~. ' P U~ LI~,, ' S TA"T'E'"o~TExAs FINAL LEASE AGREEMENT GROUP CBS, INC - Page 18 ' ATTACHMENT A Group CBS, Inc. intends to lease lot 1.12. Ye~tcourt Road I t __ _1 t __ J t __ J 5 2 102 3 U ~: I -1 t L I 1,,12 I I I I 1.39 I [ 1 · .._-~ Segcmented ~ind~ock AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT: Consider adoption of an Ordinance amending Chapter 13 Food and Food Service Establishmems of the City of DeNon Code of Ordinances by making conforming changes in accordance with the Texas Food Establishment Rules promulgated by the Texas Department of Health; providing a severability clause; providing a savings clause; providing for a penalty not to exceed $2,000 for violations of this ordinance; and providing for an effective date. BACKGROUND Chapter 13 of the DeNon Code of Ordinances sets forth standards and fees for food service establishments. The State of Texas promulgates rules for food service establishments and from time to time amends those rules. This amendment to Chapter 13 would adopt by reference the Texas Food Establishmem Rules (TFER); the currem DeNon Code references the 1977 TFER. TFER proposed for adoption by reference is the 1998 version. This ordinance rescinds several sections that are appropriately covered in the TFER. In addition to referencing the TFER, Chapter 13 of the Denton Code has historically set some standards that are peculiar to Denton and in some instances these amendments are more restrictive than TFER. This is a summary of the amended sections: 13-2 13-2. 13-2 13-2 13-2 13-5 13-6 (a) This section is amended so that the Building Official is the administrator of Chapter 13. (e) This amendmem adds the language "and requires immediate corrective action". This means that a critical violation of the TFER or City Code will require the establishment to correct the violation immediately. (g) The section stating "Organizations that serve only their own membership and immediate guests and other structured groups of persons who gather occasionally for fellowship and society that provide food from amongst their members;" is deleted because this is adequately covered in the TFER. The sections on potable water and provisional permits are deleted because they are in the TFER. (p) Removes the words "or partially" cooked. Seasonal food service is removed because it is in the TFER. This amendmem deletes sections which address hermitically sealed comainers because they are in TFER. This section deals with registration of food service establishmems based outside the city. This amendment deletes subsections relating to registration and fee. References to temporary food vendors are removed here and placed in Section 13-23 of this Chapter. 13-20 In this section reference to the content of the form was deleted. The content of the form does not need to be addressed in the ordinance. 13-22 Permit issuance. This amendment deletes a section that defined part time and full time employees for the purpose of calculating fees. This section is deleted because it is no longer used as the standard for calculating fees. This section also amends the time frame from 30 to ten days for seeking a permit after a change of ownership. This section also adds language describing the permit expiration date. 13-23 Temporary Food EstablishmeNs: This amendmeN adds a new section (1) (e) as follows: "Permits for temporary establishments that are not operating in conjunction with a special even or community-based even shall be limited to three (3) per year per establishmeN." Staff agrees with the many communities that limit the number of events for temporary establishmeNs. This amendmeN also adds clarifying language to section (2) that describes poteNially hazardous foods as "open and prepared on site". This amendmeN also removes sections (3) (b) (ii) through (4) (d) as redundaN to TFER. This amendmeN adds language to require compliance with City of DeNon solid waste regulations and fire codes. This section also requires temporary food establishments to comply with the requirements of the TFER. 13-24 This section eliminates provisional permits and proposes standards for new or remodeled restaurants and for those restaurants seeking a new certificate of occupancy. These standards address the absorbency and commercial grade of floors and walls, the location of auxiliary equipmeN and ice machines, unobstructed aisles and working spaces, mandatory sneeze guards and height of such guards, wood shelving in storage rooms, access to toilets, sink locations, commercial grade equipment, utensils, refrigerators and walk-in coolers, and the size of water heaters by type of establishment. Denton staff and other cities find that setting a clear standard concerning the use of commercial grade materials and equipmeN provides a safer and healthier food establishmeN. If the Council chooses not to include this amendment, then the existing standards from the TFER and the building code and the fire code would apply. 13-25 This eliminates the section that required payment of fees assessed during previous year and establishes a late fee. The city's billing system tracks paymeNs and helps keeps permit holders up to date in payments. 13-29 This section changes the name of the board hearing appeals from the Denton Restaurant Association (that no longer exists) to the Construction Advisory and Appeals Board. 13-33 This section addressing correction of violations is deleted in its eNirety since it is covered by the TFER. 13-34 (d) This is amended to require re-inspection within 14 calendar days of the initial inspection. The original language required re-inspection on the 14th day. This gives more flexibility to permit-holders and to the inspectors. 13-35 The reference in this section is changed to the updated TFER. 13-39. This section which set standards for litter at drive-ins is removed in its eNirety because litter coNrol is more appropriately handled by Code EnforcemeN and is not covered by the TFER. 13-40 The amendments change the reference in this section from "permit" to "card" in order to differentiate the card from the actual establishment's health permit. 13-41 This adds a three-year card option making it more convenient for food service workers. This will not affect revenue to the City of Denton. 13-42 This amendmeN would remove the section requiring attendance at a food handling school. This is removed because there is no longer a class or school to attend. Applicants watch a one-hour video and then take the test. This also removes the restriction or exclusion of sick employees because this exclusion is in the TFER. 13-43 This amendment allows food handler cards to be "available" as opposed to displayed or posted. 13-44 This amendment changes the reference in this section from "permit" to "card" in order to differentiate the card from the actual establishment's health permit. Adds exemption noted in section 13-41. 13-53 This amendment eliminates the standards (a) and (c) through (j) for mobile food establishment units since these standards are covered in the TFER. 13-61 This language is changed from the consumer health division to the "Building Official". 13-62. Conditions under which a health officer may close an establishment without warning are set forth in this section. Sub-sections (4) and (5) are added to allow that non-functioning ware-washing machines or non-functioning sinks for manual washing are conditions for closure. This is added because some establishments have only ware-washing machines and no set up for manual ware washing. Subsection (4) adds the wording "or hot water" to the existing section that allows closure for an establishment found without running water for a period of more than one hour. A subsection concerning sewage backup is removed from the closure conditions since that is covered in the TFER. Regulations on outdoor smokers, correction of violations, and revocation of health cards are proposed to be removed in their entirety since they are appropriately regulated in the TFER. None of the fee amounts are recommended for amendment. Two meetings were held for food service establishment owners and managers. No one attended the first meeting and seven interested parties gave supporting statements at the February 25th meeting. Staff briefed City Council on the proposed changes at the March 2nd City Council Work Session. OPTIONS 1. Approve 2. Approve with conditions 3. Deny Prepared by: Judie Talbot & Laurie Pearson Health Inspectors Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development S:\Our Documents\Ordinances\03~Food Service Ord 2.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 13 FOOD AND FOOD SERVICE ESTABLISHMENTS OF THE CITY OF DENTON CODE OF ORDINANCES BY MAKING CONFORMING CHANGES IN ACCORDANCE WITH TEXAS FOOD ESTABLISHMENT RULES PROMULGATED BY THE TEXAS DEPARTMENT OF HEALTH; PROVIDING A SEVERABILITY CLAUSE; PROVIDI2qG A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1: That Chapter 13 FOOD AND FOOD SERVICE ESTABLISHMENTS* is hereby amended as follows: *Editor's note--Ord. No. 93-058, § I, adopted April 6, 1993, amended former Ch. 13, relative to food and food establishments, in its entirety to read as herein set out. The provisions of former Ch. 13 derived fi:om Code 1966, §§ 11-20--11-25, 11-36--11-42 and Ord. No. 90-147, § I, adopted Oct. 2, 1990. Cross reference(s)--Health and human services generally, Ch. 14. State law reference(s)--Seizure and destruction of unwholesome food, Vemon's Ann. C.C.P. art. 9.06; unwholesome food, drink or medicine, V.T.C.A., Penal Code § 32.42; milk grading and sanitation, V.T.C.A., Health and Safety Code § 435.001 et seq.; Texas Food, Drug and Cosmetic Act, V.T.C.A., Health and Safety Code § 431.001 et seq.; regulation of food service establishments, V.T.C.A., Health and Safety Code § 437.001 et seq. ARTICLE I. IN GENERAL Sec. 13.1 The Texas Food Establishment Rules as amended by the Texas Board of Health found in 25 Texas Administrative Code, Chapter 229, sections 161 through 171 and 173 through 175 regarding the regulation of food establishments in this jurisdiction is hereby adopted as the minimum standards for food service operations within the corporate limits of the City of Denton, Texas. Wherever in said rules the words "municipality of Denton" appear, they shall be understood to refer to the City of Denton and the words "regulatory authority" shall refer to the City of Denton. A copy of these rules shall be kept on file in the office of the city secretary. Any revision, add/tion, or deletion to the Texas Food Establishment Rules by the Texas Department of Health or the United States Food and Drug Administration shall be deemed to be an amendment to this article and adopted as of the time it goes into effect or is published. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-2. Definitions. (a) Administrator shall mean the Building Official, or their designated employee, of the City of Denton. (e) Critical violation shall mean violation of 4-point or 5-point weighted items on the inspection report form utilized by the city's health officer and shall require immediate corrective action. (g) Food service establishment shall mean any restaurant, cafe, hotel dining room, grocery store, meat market, soft drink stand, hamburger stand, ice cream wagon, day care center, nursing home, private club or any place where food or drink for human consumption is offered for sale, given in exchange or given away. The term does not include the following operations and establishments, provided that the operations do not expose the public to a substantial and imminent health hazard as determined by the city health officer: (1) An establishment which handles only fresh unprocessed fruits, nuts, and vegetables and which operates from a unit, which is mobile in nature. (2) The sale, distribution, or service of food at an event, party or other special gathering that is not open to persons other than the members or invited guests of the sponsor, provided that there is no public advertisement of the event, public solicitation of fimds at or for the event, or participation by the general public in the event. (i) Health officer shall mean a sanitarian or health inspector of the City of Denton. (j) Health or regulatory authority shall mean the City of Denton. Delete sections (o) and (p) and reletter the remaining sections as follows: (n) Seasonal food service establishment shall mean any food service establishment which operates from a fixed location for a period not to exceed four (4) consecutive months provided that such operation shall occur only once during any twelve (12) consecutive month period. (o) Smoker shall mean any unit, whether mobile or fixed in nature, which uses wood or wood products to provide smoke for the purpose of slow cooking meats intended for human consumption, whether such unit is inside an enclosed building or in an outdoor area. (p) Temporary food service establishment shall mean any food service establishment which operates from a fixed location for a period not to exceed fourteen (14) consecutive days. (q) Wholesome shall mean in sound condition, clean, flee from adulteration, and otherwise suitable for use as human food. Food which is packaged shall be deemed wholesome if it meets the foregoing requirements and it is used or sold prior to the expiration date marked on the package. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § I, 4-1-97) -2- Cross reference(s)--Definitions and roles of construction generally, § 1-2. Sec. t3-5. Sale or other disposition of unwholesome food prohibited. It shall be unlawful for any person, association of persons, firm, food service establishment, temporary food service estabhshment or corporation to offer for sale, sell or give away any food or drink for human consumption which has been pronounced by the city health officer to be unfit for such use. (Ord. No. 93-058, § i, 4-6-93) Sec. 13-6. Registration of food service establishments based outside city. A food service establishment or commissary operating from a facility located outside the city that sells, distributes or transports food inside the city may not conduct operations inside the city unless the food service establishment: (1) Furnishes the health officer with a certificate from a health authority having jurisdiction over the establishment indicating that the establishment complies with applicable health laws; or (2) Furnishes the health officer other information that the administrator determines is necessary to enforce the provisions of this chapter or otherwise protect the public health or safety. (Ord. No. 93-058, § I, 4-6-93) ARTICLE II. FOOD SERVICE ESTABLISHMENTS Sec. 13-20. Permit required. It shall be unlawful for any person, association of persons, firm or corporation to operate a food service establishment in the city without having obtained a permit under the terms of this section. (Ord. No. 93-058, § I, 4~6-93; Ord. No. 97-114, § II, 4-1-97) Sec. 13-22. Permit Issuance. (a) Upon receipt of an application and payment of the applicable fee, the health officer shall make an inspection of the premises where the business is to be conducted. If the premises comply with the terms of this article and with all current requirements of the zoning ordinance, other ordinances and state law, a permit shall be issued to the applicant upon payment of the permit fee. The applicable fees shall be set by city council by ordinance and the fee schedule shall be available for public inspection at the offices of the city secretary or the health officer. -3- The applicant shall submit the applicable nonrefundable fee as set forth by city council before a permit will be issued. Notwithstanding any other provision of this chapter, the payment of any fees set under this section is not applicable to the City of Denton or any political subdivision or agency of the State of Texas and the United States of America. (b) In the event a food permit application is rejected, the administrator shall notify the applicant of the rejection in writing. The notice shall specify the reasons why the permit is denied. The decision of the administrator is final unless the applicant shall file an appeal as provided in section 13-28. The decision of the administrator shall continue in effect until the final decision of the committee. (c) Permits shall not be transferable. A person who acquires an existing food service establishment shall not operate the establishment without obtaining a new permit within ten (10) days from the date of the change of ownership. (d) Each food service estabhshment shall display a valid permit in public view in the establishment. (e) A permit will be good for a period of twelve (12) months with the expiration date being the last day of the month the permit was issued; temporary, and seasonal permits shall expire in accordance with their terms. (f) Acceptance of a permit issued by the administrator constitutes agreement by the establishment to: (1) Comply with all conditions of the permit and all applicable provisions of this chapter; and (2) Allow the lawful inspection of its facility and operations. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 95-182, § I, 9-12-95; Ord. No. 97-241, § I, 9-2-97) Sec. 13-23. Temporary food service estabhshments (e) Permits for temporary food service establishments that are not operating in conjunction with a special event or community-based event shall be limited to three (3) permits per year per establishment. (2) The term temporary food service establishment shall not include concession stands, which operate at a fixed location in conjunction with scheduled, community-based sporting or recreational events provided that the preparation and serving of potentially hazardous foods shall be restricted to only those pre-cooked, pre-packaged potentially hazardous food products that have been properly prepared in accordance with all Texas Department of Health and local requirements and are properly stored, handled, and served in the unopened, original package from said concession stands. In such instances where open potentiallY hazardous foods are -4- prepared on site from a concession stand, these shall be evaluated on a case-by-case basis and a determination shall be made as to requirements. (3) A temporary food service establishment shall not:. (a) officer; or Prepare, serve, sell or distribute any food not approved in advance by the health (b) Prepare potentially hazardous food; except, that the establishment may prepare potentially hazardous food that is approved in advance by the health officer and does not require substantial preparation prior to consumption (including, but not limited to, a hamburger or frankfurter) or may prepare potentially hazardous food that is obtained by the establishment in individual servings; (4) A temporary food service establishment shall comply with liquid waste disposal ordinances, solid waste disposal ordinances and fire codes. (5) A temporary food service establishment shall comply with Section 229.170 a-k of Texas Food Rules and any other requirement that the administrator determines is necessary to protect the public health or safety and imposes as a condition to the lawful operation of the establishment. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-24. Plans and permits. (a) The owner shall submit plans and specifications for construction of work areas intended for use in the operation of a food establishment, and the location, size, and type of fixed equipment and interior finishes of such areas to the City of Denton for approval before work is begun, when a food service establishment is constructed, or: (1) The nature of the operation changes; (2) The establishment is extensively remodeled; or (3) When an existing structure is converted for use as a food service establishment. (b) In a food service establishment, the food preparation area shall be of adequate size and shall constitute a minimum of twenty-five (25) percent of the total square footage of the occupied permitted area. (c) In a food service establishment, dry storage areas shall be of adequate size and shall constitute a minimum of fifteen (15) percent of the total square footage of the food preparation area. -5- (d) The minimum requirements specified in subsection (b) of this section shall be applicable to all establishments for which building permits are issued after April 18, 1993. (e) Construction Standards for New or Remodeled Food Establishments. All plans submitted shall include information on the following specifications: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) Floors: In food preparation areas, storage areas, utensil washing areas, restrooms, and dressing rooms, floors shall be constructed of smooth, durable, easily cleanable, non- absorbent materials of commercial grade. Flooring must be light colored, without texture or patterns that create difficult places to clean. In addition to the kitchen areas of day care centers, floors in food service areas of classrooms shall meet these requirements. Walls/Ceilings: in food preparation, storage, utensil washing areas, and restrooms, walls and ceilings must be smooth (not textured), easily cleanable, non-absorbent, light in color, and durable. Wall areas behind sinks or places that receive heavy use must be finished with FRP, ceramic tile, epoxy type paint or similar materials to withstand moisture. Bathroom walls shall be finished (as those listed above) behind plumbing fixtures to a height of at least four (4) feet up from the floor. Heavy food preparation areas behind stoves, grills, and fryers shall be of stainless steel from floor to ceiling. Auxiliary Equipment: water heaters, washing machines, dryers, remote connected refrigerators, compressors, and air conditioners must be located outside of food preparation areas. Ice Machines: are to be of adequate size and located in areas that meet the wall, floor and ceiling design standards for food preparation areas. Do not locate an ice machine near sources of potential contamination, such as exposed sewer lines, open stairwells, etc. Aisles and Working Spaces: shall be unobstructed and of sufficient width to permit employees to readily perform their .duties without contaminating food or food contact surfaces by clothing or personal contact. Sneeze Guards: required for all buffet and salad bars. Average height is four feet six inches (4'6") to five feet (5') from the floor. Storage Rooms: wood shelving is allowed for dry storage use only if finished with varnish or high gloss type paint to make sure it is smooth, non-absorbent, and easy to clean. Toilet Facilities: public access cannot be through the kitchen. Sinks: shall be the number required by law. A handsink shall be located within every 25 linear feet of unobstructed space in food preparation and utensil washing areas so it is convenient for employees to wash hands as often as necessary. If sink is too close to other equipment or sinks, a splashguard may be required. Sinks are to be of adequate size to allow for the thorough washing of hands and forearms. Blower dryers shall not be allowed as a means of drying hands in food preparation areas. Note: at the discretion of the City of Denton, additional sinks such as pot sinks, produce washing sinks, etc. may be required. Equipment and Utensils: all equipment is to be NSF approved or commercial grade. Refrigerators/Freezers: must be of commercial type, and each unit must have a numerically scaled indicating thermometer. Walk-in coolers must be commercially built and have interiors of impervious, non-absorbent materials. Wood and marlite surfaces in -6- (12) (13) walk-ins are not allowed. Shelves must be resistant to rust. Mechanical refrigeration is required on salad bars, etc. for holding cold foods cold; holding foods in ice will not be acceptable. Water Heater: must be of adequate size to provide enough hot water for all hand washing, ware washing, and cleaning. Minimum sizes: 50 gallons in heavy food preparation establishments; 30 gallons in light food preparation establishments; and 20 gallons in no food preparation establishments. Kitchens in day care centers shall comply with all rules of this code except that the size of the kitchen may be determined on a case-by-case basis as approved by the City of Denton. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-I14, § III, 4-1-97) Sec. 13-25. Expiration and renewal of permits. (a) A permit lapses and is void unless the applicable permit fee is received by the City of Denton before the expiration date of the existing permit. (b) A permit lapses and is void if the food service establishment operating under the permit constructs a new facility or changes ownership. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § IV, 4-1-97) Sec. 13-29. Hearing. A hearing of the appeal shall be conducted by the Building Construction Advisory and Appeals Board. The hearing shall be held at a time and place designated by the Building Construction Advisory and Appeals Board. The Building Construction Advisory and Appeals Board shall hear and consider evidence offered by any interested person. Based upon the recorded evidence of such hearing, the Building Construction Advisory and Appeals Board shall sustain, modify or rescind any notice or order considered in the hearing by a majority vote and provide a written report of the hearing decision to the holder of the permit. The decision of the Building Construction Advisory and Appeals Board is final as to administrative remedies, and no rehearing may be granted. Once the decision of the Building Construction Advisory and Appeals Board is final under this section, the applicant or permit holder may appeal the decision to the state district court or court of appropriate jurisdiction. (Ord. No. 93-058, § I, 4-6-93) Delete Section 13- 33 Correction of Violations. Sec. 13-34. Reinspection. (d) Re-inspection for failure to meet required score shall be performed within fourteen (14) calendar days immediately following the original inspection, or as soon as possible thereafter, -7- except that where an establishment is closed due to a score below sixty (60), pursuant to section 13-62, the original inspector shall determine the time of the re-inspection. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § VI, 4-1-97) Sec. 13-35. Fee for re-inspection. (a) The fee for re-inspection shall be one-half the annual permit fee of the establishment receiving the re-inspection. (b) A re-inspection fee wilt be charged for each re-inspection necessary to bring the food establishment's score above seventy-five (75). (c) Payment of the re-inspection fee shall not void, or in any way affect, the responsibility of the owner or permit holder for payment of any fines for any other violations of this chapter. (d) The person, partnership, or corporation listed as "owner" on the original application shall be responsible for payment of any and all fees, including re-inspection fees. The administrator shall send an invoice requesting payment of the re-inspection fee and the permit holder shall pay within thirty (30) days of the date of the invoice. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-36. Examination and condenmation of food. Food may be examined or sanapled by the health officer as often as necessary for enforcement of any provision of this chapter. The health officer may, upon written notice to the owner or person in charge specifying with particularity the reasons therefore, place a hold order on any food, which he believes is in violation of Section 229.171 2 (N) of the Texas Food Establishment Rules or any other provision of the rules. The health officer shall tag, label, or otherwise identify any food subject to the hold order. No food subject to a hold order shall be used, served, or moved from the establishment. The health officer shall permit storage of the food under conditions specified in the hold order, unless storage is not possible without risk to the public health, in which case immediate destruction shall be ordered and accomplished. (Ord. No. 93-058, § I, 4-6-93) ARTICLE iV. REGULATION' OF FOOD HANDLERS* *Cross reference(s)--Licenses, permits and business regulations generally, Ch. 16. State law reference(s)--Regulation of food service employees, V.T.C.A., Health and Safety Code § 438.031 et seq. -8- Sec. 13-40. Food handler's card required. (a) Every person whose work brings them into contact with the handling of food, utensils, or food service equipment must possess a valid food handler's card. (b) Every person who owns, manages, or otherwise controls any food service establishment shall not permit any person to be employed therein who does not possess a valid food handler's card within ten (10) days from the date of their employment. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-41. Exemptions. (a) Every person who possesses a current and valid State approved certificate shall be exempt from the requirements of section 13-40. (b) Three year card: Foodservice workers who have received a food handler's card for three (3) consecutive years may apply for a card that would be effective for the next three (3) years. (Ord. No. 93-058, § I, 4-6-93) See. 13-42. Food handler's card. In order to receive a food handler's card, every person must achieve a score of seventy (70) or above on the basic knowledge test administered by the City of Denton. This requirement must be met upon expiration of a food handler's card and upon application for a new food handler's card. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § VII, 4-1-97) See. 13-43. The permit holder of the food service establishment shall make food handler cards and food manager certificates available for immediate inspection upon request by the regulatory authority. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-44. Duration of food handler card. Any food handler's card issued under the provisions of this article shall remain in full force and effect twelve (12) months from the date of issuance, unless exempt under Section 13-41. (Ord. No. 93-058, § I, 4-6-93) Sec. 13-45. Same-nontransferable. Every food handier card issued under the provisions of this chapter shall be nontransferable. (Ord. No. 93-058, § I, 4-6-93) -9- ARTICLE V. VENDORS, CATERING TRUCKS, MOBILE UNITS AND OUTDOOR SMOKER UNITS, AND SNOW-CONE VENDORS Sec. 13-51. Requirements for snow cone vendors. (a) A snow cone vendor shall be limited to the sale of snow cones and pre-packaged items only and shall have a: (1) (2) towels. Commercially approved source for ice and syrup; Hand wash sink with hot and cold running water under pressure, soap, and paper (3) At least a two (2) compartment sink (with hot and cold nmning water under pressure) for washing and sanitizing utensils. (4) Waste-water holding tank of adequate size for operation or be connected to an existing sanitary sewer. (b) A snow cone vendor may also be required to meet any and all provisions required for.a food service establishment, which the administrator deems necessary to protect the public health and safety. (Ord. No. 93-058, § I, 4-6-93) Sec. t3-53. Requirements for mobile un/ts. (a) All mobile units originating from or serving food within the city must have a valid food service permit, which must be kept in the vehicle at all times. The permit must bear the name of the registered owner of the Ixuck and truck license plate number. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § VIII, 4-1-97) Delete Section 13-55. Outdoor Smoker Units. ARTICLE VI. ENFORCEMENT Sec. 13-61. Violations. (a) The Building Official of the City of Denton, or any of his designated employees, shall have the responsibility and power to enforce all provisions of this chapter within the corporate limits of the City of Denton, Texas. (b) Whenever the health officer determines that there has been a violation of any provision of this chapter, which in his judgment can jeopardize the public health, or for violation of any items, which have been noted as problems on two (2) or more consecutive inspection reports, the health officer may issue a written citation for said person to appear in court. (c) It shall be unlawful for any person to knowingly give the health officer a false name when such officer requests the name of said person for purposes of enforcing the provisions of this chapter. (Ord. No. 93-058, § I, 4-6-93; Ord. No. 97-114, § IX, 4-1-97) Sec. 13-62. Authority to close. (a) The health officer shall close without warning any building or place described in this chapter and prevent its use for the storage, manufacture, or sale of food or drink for human consumption whenever: (1) The health officer, upon inspection of an establishment, finds sufficient violations, which cause the rating score of said establishment to be below a total of sixty (60) points; (2) The health officer finds that an establishment is operating with no working refrigeration units; (3) The health officer finds that an establishment is operating without running water or hot water for a period of more than one (1) hour; or (4) The health officer finds an establishinent is operating without a functioning warewashing machine or adequate sinks for manual warewashing. (b) It shall be the duty of the health officer to post a notice of closure for such conditions at the entrance of such building or place and to maintain the same until such conditions or practices have been removed or abated. (c) No person shall remove or alter in any way a sign, which has been posted by the health officer. (Ord. No. 93-058, § I, 4-6-93) SECTION 2: The Health Permit Fee Schedule set forth in Exhibit "A", attached hereto and made a part hereof for all purposes, is hereby adopted and authorized to be imposed for the purposes of application for, and issuance of, permits required for compliance with the provisions of Chapter 13 "Food and Food Service Establishments". SECTION 3: This ordinance shall repeal every prior ordinance in conflict herewith, but only insofar as the portion of such prior ordinance shall be in conflict; and as to all other sections of the ordinance not in direct conflict herewith, this ordinance shall be and is hereby made -11- cumulative exeept as to such prior ordinances or portions thereof as are expressly repealed hereby. SECTION4: Any person violating any provision of this ordinance, shall upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5: If any provision of this ordinance or application thereof to any person or circumstance is held invalid by any court, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares that it would have enacted the remaining portions despite any such validity. SECTION 6: Save and except as amended hereby, all the sections, subsections, and clauses of Chapter 13 Food and Service Establishments of the Code of Ordinances of the City of Denton, Texas shall remain in full force and effect. SECTION 7: This ordinance shall become effective, after its passage and approval, on ,2003, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ~ day of ~ 2004 EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY -12- Exhibit A: Health Permit Fee Schedule: Type of Establishment Fe_~e One year Food Handler Card Three Year Food Handier Card $ 15.00 $ 45.00 2. Pool Manager's Certification $ 35.00 Wine and Beer Inspections (#s 3 - 7) 4. 5. 6. 7. Beer and Wine Permit - New Application Processing Fee Wine and Beer Retailer's Permit On Premises Wine and Beer Retailer's Off Premises Retail Dealer's On Premise License Beer only Retail Dealer's On Premise Late Hours License $ 25.00 $ 87.50 $ 30.00 $ 75.00 $125.00 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. Annual Swimming Pool Permit Restaurants _< 2,000 square feet Gross floor area Restaurants > 2,000 square feet Gross floor area Grocery Store _< 12,000 square feet Gross floor area Grocery Store > 12,000 square feet Gross floor area Convenience Store Without Deli Convenience Store With Deli Concession Stand, snow cone stand, or similar structure Daycare Facility Nursing Home / Bar/Bakery Seasonal Permit Fee Temporary Permit Application Fee for New Establishments, not including Temporary Establishments Replacement Cards $160.00 $310.00 $485.00 $325.00 $45O.00 $250.0O $300.00 $175.00 $150.00 + $1.00/each child licensed $275.O0 $ 75.0O $ 20.00 $250.00 $ 5.00 - 13- AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 23, 2004 Parks and Recreation Department Howard Martin ~ SUBJECT Consider recommending an ordinance of the City of DeNon, Texas amending Section 22-32 of the Code of Ordinances of the City of DeNon relating to the possession and consumption of alcohol in the Civic CeNer Park and buildings; providing for a penalty of a fine not to exceed five hundred dollars for each offense in violation of the ordinance; providing a severability clause and an effective date. BACKGROUND Recently, the Parks and Recreation Department has seen an increase in the number of complaints and incideNs related to the use of alcohol in Civic CeNer Park. CurreNly, Civic CeNer Park is the only park in DeNon in which a person can legally consume or possess an alcoholic beverage. The purpose of allowing this use in Civic CeNer Park resulted from legitimate reNals and special evens that are held in the park or park buildings and are authorized to consume, possess and/or sell alcoholic beverages, like the Denton Arts and Jazz Festival, Cinco de Mayo, and Fuego y Alma. In addition, the Civic CeNer and Senior CeNer allow alcohol to be served at reNals, requiring appropriate levels of police security. Use of alcoholic beverages in these situations is highly regulated and appropriate levels of supervision and security are required to protect participants, the City, and the event organizers. To provide a safer park environment, the Parks and Recreation Department is proposing to prohibit the possession or consumption of alcoholic beverages in the Civic CeNer Park, Civic CeNer building, Senior Center, the Emily Fowler Library except when the activity, event or rental of space is approved for the possession or consumption of alcoholic beverages in advance by the City of DeNon. Special events such as the Denton Arts and Jazz Festival, Cinco de Mayo and Fuego y Alma would not be affected by this prohibition, because they receive approval from the City of DeNon in advance for this use. Anyone violating this new ordinance would be fined up to $500, if convicted. OPTIONS The City Council may choose to · approve the revision to this ordinance as submitted, · oppose the revision, allowing the current ordinance to remain in place, thus possession and consumption of alcoholic beverages in Civic Center Park · request additional changes to the ordinance. allowing the RECOMMENDATION Staff of the Parks and Recreation Department and the Library recommends approval of this revision to the ordinance. ESTIMATED PROJECT SCHEDULE The ordinance will take effect 14 days after adoption. PRIOR ACTION/REVIEW At the March 1, 2004, meeting the Parks, Recreation and Beautification Board unanimously recommended approval of this item. FISCAL INFORMATION This action will have no impact on the City's General Fund budget. Standard "Park Rules" signs, which prohibit alcohol in the park, are currently in stock and will be posted in Civic Center Park. Exhibits 1. Ordinance 2. Parks, Recreation and Beautification Board minutes of March 1, 2004 Respectfully submitted: Janet Simpson, Director Parks and Recreation Department Prepared By: Emerson Vorel Park Superintendent DRAFT Parks, Recreation and Beautification Board Minutes March 1, 2004 Members preseN: Teresa Andress, Dale Yeatts, Geri Aschenbrenner, Chuck Smith, Reggie Heard, Ross Richardson and Jo Kuhn. Staff present: Janet Simpson, Emerson Vorel, Bob Tickner and Janie McLeod. Others present: Gary Calmes, Utilities Department Chairman Teresa Andress called the meeting to order at 6:03 p.m. AWARDS AND RECOGNITION - None APPROVAL OF MINUTES - The minutes of the February 2, 2004, meeting stood as distributed. ACTION ITEMS Consider a request from the Denton Festival Foundation to Sell Alcohol Beverages at Denton Arts and~lazz Festival. Janet said the Denton Festival Foundation has celebrated the Denton Arts and Jazz Festival in the Civic Center Park for several years and is consistent with all other events in requesting permission from City Council to sell alcoholic beverages at the eveN. The request is to sell alcohol at the festival for the next three years (2004-2007). The Arts and Jazz Festival follows the required Texas Alcoholic Beverage Commission (TABC) standards. Action: Ross Richardson made a motion to recommend City Council's approval of the DeNon Festival Foundation's request to sell alcohol beverages at the Denton Arts and Jazz Festival. Geri Aschenbrenner seconded the motion and it passed unanimously. Consider a Recommendation Prohibiting the Possession or Consumption of Alcoholic Beverages in Civic Center Park, with Exceptions. Janet stated that the current ordinance reads that alcoholic beverages could be possessed or consumed in the Civic CeNer Park at anytime during regular park hours. The new ordinance proposing to prohibit the possession or consumption of alcoholic beverages in the Civic CeNer Park, Civic CeNer Building and the Senior CeNer except when the activity, even or renal of space is approved for the possession or consumption of alcoholic beverages in advance by the City of DeNon. She added that special evens such as the DeNon Arts and Jazz Festival, Cinco de Mayo and Fuego y Alma would not be affected by this prohibition, because they receive approval from the City of DeNon in advance for this use. Action: Dale Yeatts made a motion to accept the recommendation of prohibiting the possession or consumption of alcoholic beverages in the Civic CeNer Park with exceptions. Geri Aschenbrenner seconded the motion and it passed unanimously. DISCUSSION ITEMS Civic Center Concept Plan. Bob showed a power point presentation of the proposed renovations to the Civic CeNer. The plans include: ADA improvemeNs for accessibility and restroom improvements; Fire Protection upgrades required by code; improvements to the electrical, HVAC and plumbing to make the building more useable and efficient; create additional meeting rooms to enhance the usability of the main rotunda room by conferences, small conveNions, EXHIBIT 2 DRAFT banquets, performances, and shows; provide for adequate office and workspace for Civic Center staff; develop additional community use spaces for major special events; upgrade the appearance of the facility to attract new users and events. She added that other items being considered in the project include: two meeting rooms in the back area most recently used as office space; upgrade the back restroom with new ADA accessible facilities and space; add acoustical sound walls in the rotunda for better sound performance during meetings and concerts; upgrade the kitchen area into a large catering kitchen with new equipment; enlarge and create storage rooms to move equipment off the show floor and away from emergency exits; add controllable lighting in the rotunda area for shows and performances; replace rusting and leaking windows with new energy efficiency windows. Open Space Master Plan. Janet showed a slide presentation and discussed the plan. The plan defines existing open space in public and private ownership that provide both environmental and social importance in areas of urban development including, local parks, state and federal lands, golf courses, ranches, farms and other agricultural lands. The Board requested that this item be brought to the April meeting as an Action Item. DIRECTOR'S REPORT Parks Maintenance Overview. This item was presented at the November meeting. Project Status Report. Bob gave an update on the public meeting held for input on the Lake Forest Park. Keep Denton Beautiful Report. There were no questions on the distributed report. Items for Next Meeting. Open Space Master Plan as an Action Item. There being no further business, the meeting was adjourn at 7:27 p.m. S:\Our Documents\Ordinanccs\04~lcohol in Civic Center Park. DOC ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING SECTION 22-32 OF TI-IE CODE OF ORDINANCES OF THE CITY OF DENTON RELATING TO THE POSSESSION AND CONSUMPTION OF ALCOHOL IN THE CIVIC CENTER PARK AND BUILDINGS; PROVIDING FOR A PENALTY OF A FINE NOT TO EXCEED FIVE HUNDRED DOLLARS FOR EACH OFFENSE IN VIOLATION OF THE ORDINANCE; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. WHEREAS, Section 22-32 of the Code of Ordinances of the City of Denton, Texas currently permits the possession and consumption of alcohol in the Civic Center Building and the portion of the Civic Center Park not enclosed within the fence surrounding the city swimming pools; and WHEREAS, the City Council finds that Section 22-32 should be amended to restrict such possession and consumption of alcohol to City approved activities, events and rentals; and WHEREAS, the City Council of the City of Denton, Texas finds that it is in the public interest to adopt this ordinance; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The f'mdings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. Section 22-26 of the Code of Ordinances of the City of Denton, Texas is hereby amended in its entirety to read as follows: Sec. 22-32. Possession and Consumption of Alcoholic Beverages. (a) It shall be unlawful for any person to consume or possess any alcoholic beverage while on the premises of any: (1) City park; (2) Public Improvement located within a city park; or (3) Vehicle Parking area of any city park. (b) The prohibition contained in Section 22-32(a) shall not apply to the possession or consumption of an alcohohc beverage in the Civic Center Park, Civic Center Building, Emily Fowler Library and Senior Center during a City approved activity, event or rental of space where approval for the possession or consumption of alcoholic beverages is given in advance by the City. EXHIBIT 1 (c) For purposes of this section, the term "alcoholic beverage" is as defined in the Texas Alcoholic Beverage Code. SECTION 3. Any person violating any provision of this ordinance shall, upon conviction, be fined a stun not exceeding $500.00. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 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 (I0) days of the date of its passage. PASSED AND APPROVED this the __ day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: March 23, 2004 DEPARTMENT: ACM: Parks and Recreation Department Howard Martin, Assistant City Manager SUBJECT Consider recommending approval of a resolution allowing Denton Festival Foundation to be the sole proprietor allowed to sell alcoholic beverages at the Denton Arts and Jazz Festival on April 23 - 25, 2004, upon certain conditions; execute a three year agreement in conformity with this resolution; and providing for an effective date. BACKGROUND The Denton Festival Foundation, made up of community volunteers and city staff, has requested to sale of alcohol at the Denton Arts and Jazz Festival, allowing Denton Festival Foundation to be the sole proprietor of this product. Denton Festival Foundation will be responsible for rental of the booth space, obtaining the temporary license, and securing the temporary permit. The Festival Foundation provides police security at the event. The annual Denton Arts and Jazz Festival event promotes cultural enhancement and is co- sponsor by the City of Denton Parks and Recreation Department. It is held in Civic Center Park and includes over 1,300 professional and amateur performers, local and statewide vendors, children's activities, art exhibits, and various entertainers. The three-day free event runs from Friday, 5 p.m. to 10 p.m., Saturday, 10 a.m. to 10 p.m., Sunday, 11 a.m. to 7 p.m. The event continues to experience growth each year in community participation through national and local vendors and entertainment. Last year's event hosted aroundl00,000 participants with 247 booths and six entertainment stages. OPTIONS: The City Council may approve the request from the Denton Festival Foundation as submitted, request changes to the ordinance, or deny the request for the sale of alcohol. RECOMMENDATION Staff recommends approval of this request. ESTIMATED SCHEDULE OF PROJECT The Denton Arts and Jazz Festival three-day free event runs from Friday, April 23rd from 5 p.m. to 10 p.m., Saturday, April 24~h from 10 a.m. to 10 p.m., and Sunday, April 25th from 11 a.m. to 7 p.m. PRIOR ACTION/REVIEW At their March 1, 2004, meeting the Parks, Recreation and Beautification Board unanimously recommended approval of this item. FISCAL INFORMATION This action has no impact on the City's General Fund budget. All costs and revenue from this action will be solely the responsibility of the Demon Festival Foundation. BID INFORMATION Not applicable EXHIBITS 1. Resolution 2. Contract 3. Parks Board Minutes of March 1, 2004 Prepared by: RESPECTFULLY SUBMITTED: Janet Simpson, Director Parks and Recreation Department Janie McLeod, Management Assistant Parks and Recreation Department DRAFT Parks, Recreation and Beautification Board Minutes March 1, 2004 Members preseN: Teresa Andress, Dale Yeatts, Geri Aschenbrenner, Chuck Smith, Reggie Heard, Ross Richardson and Jo Kuhn. Staff present: Janet Simpson, Emerson Vorel, Bob Tickner and Janie McLeod. Others present: Gary Calmes, Utilities Department Chairman Teresa Andress called the meeting to order at 6:03 p.m. AWARDS AND RECOGNITION - None APPROVAL OF MINUTES - The minutes of the February 2, 2004, meeting stood as distributed. ACTION ITEMS Consider a request from the Denton Festival Foundation to Sell Alcohol Beverages at Denton Arts and Jazz Festival. Janet said the Denton Festival Foundation has celebrated the Denton Arts and Jazz Festival in the Civic Center Park for several years and is consistent with all other events in requesting permission from City Council to sell alcoholic beverages at the eveN. The request is to sell alcohol at the festival for the next three years (2004-2007). The Arts and Jazz Festival follows the required Texas Alcoholic Beverage Commission (TABC) standards. Action: Ross Richardson made a motion to recommend City Council's approval of the DeNon Festival Foundation's request to sell alcohol beverages at the Denton Arts and Jazz Festival. Geri Aschenbrenner seconded the motion and it passed unanimously. Consider a Recommendation Prohibiting the Possession or Consumption of Alcoholic Beverages in Civic Center Park, with Exceptions. Janet stated that the current ordinance reads that alcoholic beverages could be possessed or consumed in the Civic CeNer Park at anytime during regular park hours. The new ordinance proposing to prohibit the possession or consumption of alcoholic beverages in the Civic CeNer Park, Civic CeNer Building and the Senior CeNer except when the activity, even or renal of space is approved for the possession or consumption of alcoholic beverages in advance by the City of DeNon. She added that special evens such as the DeNon Arts and Jazz Festival, Cinco de Mayo and Fuego y Alma would not be affected by this prohibition, because they receive approval from the City of DeNon in advance for this use. Action: Dale Yeatts made a motion to accept the recommendation of prohibiting the possession or consumption of alcoholic beverages in the Civic CeNer Park with exceptions. Geri Aschenbrenner seconded the motion and it passed unanimously. DISCUSSION ITEMS Civic Center Concept Plan. Bob showed a power point presentation of the proposed renovations to the Civic CeNer. The plans include: ADA improvemeNs for accessibility and restroom improvements; Fire Protection upgrades required by code; improvements to the electrical, HVAC and plumbing to make the building more useable and efficient; create additional meeting rooms to enhance the usability of the main rotunda room by conferences, small conveNions, EXHIBIT 3 DRAFT banquets, performances, and shows; provide for adequate office and workspace for Civic Center staff; develop additional community use spaces for major special events; upgrade the appearance of the facility to attract new users and events. She added that other items being considered in the project include: two meeting rooms in the back area most recently used as office space; upgrade the back restroom with new ADA accessible facilities and space; add acoustical sound walls in the rotunda for better sound performance during meetings and concerts; upgrade the kitchen area into a large catering kitchen with new equipment; enlarge and create storage rooms to move equipment off the show floor and away from emergency exits; add controllable lighting in the rotunda area for shows and performances; replace rusting and leaking windows with new energy efficiency windows. Open Space Master Plan. Janet showed a slide presentation and discussed the plan. The plan defines existing open space in public and private ownership that provide both environmental and social importance in areas of urban development including, local parks, state and federal lands, golf courses, ranches, farms and other agricultural lands. The Board requested that this item be brought to the April meeting as an Action Item. DIRECTOR'S REPORT Parks Maintenance Overview. This item was presented at the November meeting. Project Status Report. Bob gave an update on the public meeting held for input on the Lake Forest Park. Keep Denton Beautiful Report. There were no questions on the distributed report. Items for Next Meeting. Open Space Master Plan as an Action Item. There being no further business, the meeting was adjourn at 7:27 p.m. S:\Our Documents~Resolutions\04kArts & Jazz Festival Res.doc RESOLUTION NO. A RESOLUTION ALLOWING DENTON FESTIVAL FOUNDATION, INC. TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE DENTON ARTS & JAZZ FESTIVAL APRIL 23-25, 2004, UPON CERTAIN CONDITIONS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEMENT IN CONFORMITY WITH THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton ("City") is the owner of the Civic Cemer Park and through the City of Denton co-sponsors the Denton Arts & Jazz Festival at the Civic Center Park; WHEREAS, the consumption of alcoholic beverages is allowed in the Civic Center Park pursuant to City of Denton Code, §22-32 (b); WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages at the Denton Arts & Jazz Festival; and WHEREAS, Denton Festival Foundation, Inc. has requested that they be sole participant allowed to sell alcohohc beverages for three consecutive years at the Denton Festival Foundation; and WHEREAS, the Parks, Recreation and Beautification Board has recommended that Denton Festival Foundation, Inc. be the sole participant allowed to sell alcoholic beverages at the Denton Arts & Jazz Festival; and WHEREAS, the City agrees with the recommendation of the Parks, Recreation and Beautification Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. Denton Festival Foundation shall be the sole participant allowed to sell alcoholic beverages at the Denton Arts & Jazz Festival for three consecutive years, first being April 23-25, 2004 at the Civic Center Park upon the following conditions: They shall be responsible for rental of any booth space necessary; They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; They shall provide the security necessary for the sale of alcohohc beverages; They shall provide general comprehensive liability insurance from a responsible carder, with the City as an additional insured, in the amount of $500,000.00. EXHIBIT 1 Agrees to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Denton Arts & Jazz Festival. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with th/s resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~ CMC CENTER AGREEMENT FOR DENTON FESTIVAL FOUNDATION, INC. STATE OF TEXAS COUNTY OF DENTON § This Agreement', made this ~ day of ,2004, by and between the City of Denton, a municipal corporation, hereinafter referred to as the "CITY" and the Denton Festival Foundation, Inc. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to DENTON FESTIVAL FOUNDATION, INC. the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the Denton Arts and J~z~. Festival celebration on April 23-25, 2004, to be held at the Civic Center Park. Attached hereto and made a part hereof by is a copy of the resolution passed by the City Council of Denton, Texas authorizing this privilege. This privilege extends three years beyond the date of the Denton Arts and Jazz Festival celebration set for the year 2004. ARTICLE 2 SCOPE OF SERVICES DENTON FESTIVAL FOUNDATION, INC. in order to exercise the privilege to sell alcoholic beverages must perform the following: DENTON FESTIVAL FOUNDATION, INC. shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the Denton Arts and j_a?.z Festival. DENTON FESTIVAL FOUNDATION, INC. shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the Denton Arts and J_a. zz Festival. DENTON FESTIVAL FOUNDATION, INC. shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the Denton Arts and l~.zz Festival. DENTON FESTIVAL FOUNDATION, INC. 's failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the Denton Arts and Jazz Festival. EXHIBIT 2 ARTICLE 3 LOCAL RUI.ES AND REGULATION DENTON FESTIVAL FOUNDATION, INC. agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, the Denton Civic Center Rules and Regulations, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. DENTON FESTIVAL FOUNDATION, INC. shall pay alt taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. DENTON FESTIVAL FOUNDATION, INC. will exercise reasonable care and due diligence in their sale of alcoholic beverages at the Denton Arts and Ja_.zz Festival. ARTICLE 4 iNDEMNITY AGREEMENT DENTON FESTIVAL FOUNDATION, INC. shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of DENTON FESTIVAL FOUNDATION, INC. or it officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' 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 5 INSURANCE During the performance of the Agreement, DENTON FESTIVAL FOUNDATION, INC. shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carders of at least an A- or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. DENTON FESTIVAL FOUNDATION, INC. shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance Denton Arts and lazz Festival Celebration A~lmement- Page 2 policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and DENTON FESTIVAL FOUNDATION, iNC. In such event, DENTON FESTIVAL FOUNDATION, INC. shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTiCLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three O) days' mailing: To DENTON FESTIVAL FOUNDATION, INC.: DENTON FESTIVAL FOUNDATION, INC.: Carol Short, Festival Director Denton Festival Foundation, Inc. 525 Ft. Worth Dr. Denton, Texas 76201 (940) 565-0931 To CITY: CITY OF DENTON: City Manager 215 E. McKinney Denton, TX 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and __ exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ,ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. Denton Arts and Jazz Festival Cel~ration Agreement - Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services requked hereunder, DENTON FESTIVAL FOUNDATION, INC. shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL DENTON FESTIVAL FOUNDATION, INC. 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; or have any contractual relations with the CITY. ASSIGNABILITY DENTON FESTIVAL FOUNDATION, INC. shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODI~CATION No waiver or modification of this Agreemem or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to'be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 15 MISCELLANEOUS The following exhibits are attached to and made a part of this Agreement: (list exhibits) Exhibit "A" Resolution No. Venue of any suit or cause of action under this Agreemem shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. 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. Denton Arts and Sazz Festival Celebration Agrcem~t - Page 4 IN WITNESS HEREOF, the City of Demon, Texas has caused this Agreement to be executed by its duly authorized City Manager, and DENTON FESTIVAL FOUNDATION, INC. has executed this Agreement through its duly authorized undersigned officer on this the day of ,2004. CITY OF DENTON, TEXAS MICHAEL A~ CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBER~~3T~A~O~Y BY: ~ ~/] DENTON FESTIVAL INC. FOUNDATION, BY: CAROL SHORT, Festival Director WITNESS: BY: Denton Arts and Jazz Festival Celebration Agr~ment- PaRe 5 AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET March 23, 2004 Economic Development Mike Conduff//~ SUBJECT Consider adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to submit for a grant with the US Department of Housing and Urban Development for a Continuum of Care Homeless Assistance Grant; as authorized and required by the McKinney-Vento Homeless Assistance Act of 1987 as amended and authorizing the City Manager to take all necessary action to obtain the grant; and providing for an effective date. BACKGROUND In June of 2003 HelpNET submitted an application to the US Department of Housing and Urban Development to fund a Homeless Management Information System for Denton County. HelpNET worked with the Denton County Homeless Coalition Steering Committee and the City of Denton to develop the project and complete the application. Development and use of a Homeless Management Information System (HMIS) is required of those communities that wish to receive homeless assistance grant funds. HelpNET was awarded a Continuum of Care Homeless Assistance grant of $202,000 to set up and manage the HMIS for a three-year period. Since HelpNET is no longer an active agency, the Denton County Homeless Coalition Steering Committee requested that the City of Denton assume responsibility as fiscal agent for the grant. The US Department of Housing and Urban Development has given the authorization for the City of Denton to accept the Continuum of Care Homeless Assistance grant and act as fiscal agent. HOPE, Inc. has agreed to manage development and operations for the HMIS. The Denton Housing Authority Board of Commissioners has also voted to donate office space for the HMIS. The donated office space will be used as match for the grant. ESTIMATED PROJECT SCHEDULE The grant will provide funding for a three-year period. Grant funds should be available by July 2004. PRIOR ACTION/REVIEW (Councils, Boards, Commissions) The Human Services Advisory Committee recommended the transfer of the funding balance from HelpNET's 2003-'04 contract to HOPE, Inc. for development and administration of the HMIS. FISCAL INFORMATION The City's Human Services Coordinator will manage the grant funding. HelpNET's 2003-'04 funding in the City' s Human Services Budget has a balance of $18,050 that can be used for the project. This is consistent with the original intent of the funding allocated to HelpNET. additional City funds will be used for the project. EXmBITS 1. Ordinance No Respectfully submitted: Linda Ratliff Director of Economic Development Prepared by: Barbara Ross Community Development Administrator S:\Our Documents\Ordinances\04\Sumission for HelpNet grant. DOC ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO SUBMIT FOR A GRANT WITH THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FOR A CONTINUUM OF CARE HOMELESS ASSISTANCE GRANT; AS AUTHORIZED AND REQUIRED BY THE MCKINNEY- VENTO HOMELESS ASSISTANCE ACT OF 1987 AS AMENDEDAND AUTHORIZING THE CITY MANAGER TAKE ALL NECESSARY ACTION TO OBTAIN THE GRANT; AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City of Denton, Texas is concerned with the provision of services to residems who are homeless and with providing decem housing, a suitable living environmem, and assisting homeless households to achieve self sufficiency; and WHEREAS, the City of Demon, Texas, has developed and adopted a Cominuum of Care plan as part of the City's Consolidated Plan for Housing and Community Developmem to support services for homeless and potemially homeless households; and WHEREAS, the Cominuum of Care plan includes developmem of a Homeless Management Information System and continuation of the existing supportive housing programs; and WHEREAS, HelpNET, the current recipient of the grant desires to make a change in the program because it seeks to be released from its obligations under the gram and the City of Demon seeks to assume responsibility for those obligations; and WHEREAS, the City needs to make a technical submission to the Department of Housing and Urban Development to obtain the grant funds; and WHEREAS, the City of Denton, Texas, intends to sub-contract with local social service agencies to provide services through the Continuum of Care grant program; and WHEREAS, the City Council deems it in the public imerest to authorize the City Manager to make submission for this Grant; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council of the City of Demon, Texas, authorizes the City Manager to sign and submit to the U.S. Department of Housing and Development and all appropriate officials thereof, a gram submission and application, together with all necessary certifications, grant agreements and other documents as well as appropriate resources for entitlement of funds under the Stewart B. McKinney Homeless Assistance Act of 1987, as amended, as necessary to obtain the Continuum of Care Homeless Assistance Grant to provide services to homeless residents of Denton. S:\Our Documents\Ordinances\04\Sumission for HelpNet grant. DOC SECTION 2. That the City Manager is authorized to take all other actions necessary to obtain and administer this grant. SECTION 3. That the Community Development Administrator is authorized, under the supervision of the City Manager, to handle all fiscal and administrative matters relating to the application and the administration of the Continuum of Care Homeless Assistance Grant, and all other matters connected therewith. SECTION 4. That the City Secretary is hereby authorized to furnish true, complete, and correct copies of this ordinance to all interested parties. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 23, 2004 Parks and Recreation Howard Martin, Assistant City Manager SUBJECT Consider adoption of an ordinance of the City of DeNon, Texas, authorizing the City Manager to submit an application under the National School Lunch Act to obtain funding for the 2004 Summer Food Service Program; if such funding is grained, the City Manager is authorized to execute the Summer Food Service Program agreement with the Texas Department of Human Services and execute a contract with the Denton Independent School District and all additional documents and agreements, as required; authorizing the expenditure of funds to administer the program; and providing an effective date. BACKGROUND This free lunch program is designed to serve children in areas of low-income populations during the summer months when traditional school lunch programs are not in effect. This program is sponsored and funded by the United States Department of Agriculture, Food and Nutrition Service. The Summer Food Service Program is a continuation of the free lunch program that is offered during the school year. The Texas Department of Human Services has made an effort through outreach to increase the number of cities participating in the program. Cold sack lunches will be prepared by the Denton Independent School District and served at the following locations: 1) MLK Recreation Cemer, 2) Phoenix Park, 3) Denia Park, 4) Civic Cemer Park, 5) Owsley Neighborhood, 6) Fairway Villas, 7) Village East Apartmems, 8) Fred Moore Park, 9) Borman Elememary Summer School, 10) Lee Elememary Enrichmem Program, 11) Wilson Elememary Summer School, 12) Church of Christ, 13) Mack Park Apartmems, 14) Ryan High School, 15) American Legion Hall Cemer. The total estimated cost for this program is approximately $70,000 which is reimbursed by the Texas Departmem of Human Services. The Parks and Recreation Department first offered the Summer Food Service Program in 1992 at Denia Park, Phoenix Park, Fred Moore Park, Civic Cemer Park, and two summer school locations. At these six locations, a total of 14,776 lunches were served to children 1 through 18 years of age. Last summer, 25,402 lunches were served at 14 sites at a cost o1'$52,561. OPTIONS City Council may approve the contracts with the United States Department of Agriculture, Food and Nutrition Service and Denton Independent School District in its entirety, make recommendations for changes or deny the ordinance. RECOMMENDATION Staff recommends approval of the proposed ordinance. ESTIMATED SCHEDULE OF PROJECT Summer lunches will be served from June 1, 2004, to August 6, 2004. No lunches will be served on Monday, July 5, 2004, in observance of the Independence Day Holiday. PRIOR ACTION/REVIEW The Denton Independent School District recommended approval to contract the preparation of cold sack lunches for this program when the issue was presented to their Board on February 24, 2004. The program is scheduled for implementation on June 1, 2004. FISCAL INFORMATION The Texas Department of Human Services will reimburse all costs associated with the program, which administers this grant. BID INFORMATION Not applicable. EXHIBITS 1. Ordinance 2. Food Site Location Map 3. DISD Agreement 4. Texas Dept. of Human Services Agreement 5. Certificate of Authority Respectfully submitted: Janet Simpson, Director Parks and Recreation Department Prepared by: Kathy Schaeffer, Youth/Teen Services Manager Parks and Recreation Department S:\Our Documents\Ordmances\04\Summer Food Service 2004.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO SUBMIT AN APPLICATION UNDER THE NATIONAL SCHOOL LUNCH ACT TO OBTAIN FUNDING FOR THE 2004 SUMMER FOOD SERVICE PROGRAM; IF SUCH FUNDING IS GRANTED, THE CITY MANAGER IS AUTHORIZED TO EXECUTE THE SUMMER FOOD SERVICE PROGRAM AGREEMENT WITH THE TEXAS DEPARTMENT OF HUMAN SERVICES AND EXECUTE A CONTRACT WITH THE DENTON INDEPENDENT SCHOOL DISTRICT AND ALL ADDITIONAL DOCUMENTS AND AGREEMENTS, AS REQUIRED; AUTHORIZING THE EXPENDITURE OF FUNDS TO ADMINISTER THE PROGRAM; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas will submit an application for funding under the National School Lunch Act, to the Texas Department of Human Services for the purpose of making meals available to eligible children at the City's Summer Action Site programs; and WHEREAS, pursuant to the grant, if received, the City will contract with the Denton Independent School District to provide the meals at the various sites; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to execute, on behalf of the City, an application for funding under the National School Lunch Act, and if funded, the Summer Food Service Program Agreement with the Texas Department of Hman Services, a copy of which is attached hereto and incorporated by reference herein, along with any other documents and certificates necessary to obtain such funding. SECTION 2. The City Manager is hereby authorized to execute a contract with the Denton Independent School District, substantially in the form of the contract which is attached to and made a part of this ordinance for all purposes, to provide meals for eligible individuals at the various sites, and such other documents and certifications as are necessary to carry out the 2004 Summer Food Service Program, if such program is funded per the terms set forth in Section 1 above, and to handle all fiscal and administrative matters relating to the application and the program. SECTION 3. The expenditure of funds necessary to administer the 2004 Summer Food Service Program is hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ~ 2004. EULINE BROCK, MAYOR EXHIBIT 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 Bo~n Elem Optimist CI.b ~Ua~e East: Apt. E~ Ma~k App~creek Ap~ Apt. EXHIBIT 2 State of Texas County of Denton AGREEMENT TO FURNISH FOOD SERViCE CITy. OF DENTON .. ~ and DENTON INDEPENDENT SCHOOL DISTRICT FOOD SERVICES THIS AGREEMENT is made and entered into by and between the Denton Independent School District and the City of Denton both of whom are local governmental entities authorized to enter into interlocal agreements under Chapter 791 of the Texas Government Code. (Vernon 1994) Whereas, the interlocal agreement contemplates the performance of ftmcfion or services that each party to this contract is authorized to perform individually. :. Whereas, that the City of Denton is making payment under this agreement which it is fimding from payments from current revenue; whereas, the payments provided by the City of Denton are in an amount that fairly compensates the Denton Independent School District for the services that it is performing. Witnesseth: I. Provision of Meals agrees to supply unitized meals inclusive of milk and juice Denton Independent School District to the City of Denton Parks and Recreation Department, at the MLK Recreation Center, Phoenix Park, Denia Park, Civic Center, Owsley Neighborhood, Optimist Club, Mack Park, Church of Christ, Fairway Villas, Village East Apartments, and 3 elementary schools and one high school to be listed by March 1. Any'additional sites will added by March 15. Breakfast ...... $ 0.00 each Lunches..; .... $ 1.90 each Snacks ......... $. 0.00 each Supper ......... $. 0.00 each EXHIBIT 3 II. Menu Records It is further agreed that the Denton Independent School District pursuant to the provisions of the Summer Food Service Program Regulations, a copy of which is attached as Exhibit "A" and is part of this agreement, will assume that said meals meet the minimum requirements as to nutritive value and content as outlined in the U.S.D.A.'s sponsor Meal Preparation Handbook, and will maintain full and accurate recordings of such, including the following: 1. Menu Records, including amount of food prepared. 2. Meals, including daily number of meals delivered by type. III. Retention of Records These records must be reported to the institution promptly at the end of each week. Denton Independent School District agrees also to retain records required under the preceding clause for a per/od of three years and 90 days after the end of the contract period. If audits, claims or litigation have not been resolved, all records must retain beyond the required time period until all issues are resolved in accordance with the Summer Food Service Program Agreement between The City 6fDenton and The Texas Department of Human Services. IV. Compliance With Immigration Laws The Denton Independent School District agrees to comply with the requirements of the Immigration Reform Control Act of 1986 regarding employment verification and retention of verification forms for any individuals hired atter November 6, 1986 who will perform labor or services under this contract. V. Audit The Denton Independent School District agrees to allow for purposes of audit, examination, excerpt, and transcription: the USDA, the Comptroller of the United States, D.S. and any of their authorized representatives to have access to any of the contractor's books, documents, papers, and records that are pertinent to the contract. VI. Energy Efficiency The Denton Independent School District .agrees to comply with the required mandatory standards and policies concerning energy efficiency contained in the Texas Energy Conservation Plan issued in compliance with the Energy Policy and Conservation Act (P.L. 94-163). VII. Remedies For Breach of Contract The Denton Independent School District agrees that except for small purchase contracts, it will comply with and enforce provisions that allow for administrative, contractual, or legal remedies if contractors violate or breach contract terms, and any appropriate sanctions and penalties. VIII. Compliance With Labor Regulations The Denton Independent School District agrees to be in compliance with Section ~103 of the contract Work Hours and Safety Standards Act (40 USC 327-330) as supplemented by the Department of Labor regulations (29 CFR, Part 5). Under this Act, contractors must compute the wages of mechanics and laborers on the basis of standard workday of eight hours and a standard workweek of 40 hour~. Work that exceeds the standards must be compensated at least 1½ times the basic pay rate for overtime hours worked. These requirements do not apply to the purchase of supplies or materials ordinarily available on the open market or contracts for transportation. IX. Equal Emplovrnent...Op. portunity The Denton Independent School District agrees to comply with Executive Order 11246 entitled "Equal Employment Opportunity" as amended by Executive Order 11375 and as supplemented in Department of Labor regulations (41CFR, Part 60). X. Compliance With Laws The Denton Independent School District agrees to comply with all other applicable laws, including without limitation, any additional applicable Federal Laws or regulations contained in the Summer Food Program Agreement between the City of Denton and the Texas Department of Human Services. XI. Remedy For Breach If the Denton Independent School District fails to provide services in accordance with the provisions of this contract, the City of Denton may, upon written notice of default'to the contractor, immediately terminate the whole or part of this contract. XIt. Consideration The Cit..y of Denton agrees to pay Denton Independent School District for all meals ordered on daily basis at the rate agreed upon in this contract. XIII. Term The agreement shall be effective as of June 1, 2004 and shall have the same term as the Summer Food Program Agreement between the City of Denton and the Texas Department pf Human Services. It may be terminated by notice in writing given by any party hereto to the other parties at least 30 days prior to the date of termination. XiV. Venue This agreement shall be interpreted in accordance with the laws of the State of Texas. Any litigation filed with regard to this contract shall be tried in a court of competent jurisdiction setting in Denton County, Texas. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the dates indicted below: Agreed to this date Sponsor Official Agreed to this date DISD Spon~ Title; ............ City Manager Title School Board President The location of the food preparation site will be: Rivera Elementary School 701 Newton Denton, Texas 76205 APPROVED AS TO LEGAL FORM: STATE OF TEXAS § COUNTY OF TRAVIS § TEXAS DEPARTMENT OF HUMAN SERVICES SPECIAL NUTRITION PROGRAMS AGREEMENT The Texas Department of Human Services, hereinafter referred to as TDHS, City of Denton, Texas, A Texas Municipal Corporation at 321 E. McKinney St, Denton, Texas 76201 hereinafter referred to as the Contractor, do hereby make and enter into this contract, as required by the National School Lunch Act and the Child Nutrition Act, as amended, and the following program regulations: the National School Lunch Program (NSLP), 7 Code of Federal Regulations (CFR) Part 210; the Special Milk Program (SMP), 7 CFR Part 215; the School Breakfast Program (SBP), 7 CFR Part 220; the Summer Food Service Program (SFSP), 7 CFR Part 225; and the Child and Adult Care Food Program (CACFP) 7 CFR Part 226. This agreement establishes or continues the fights and respongibilities of TDHS and the Contractor pursuant to the Contractor's participation in one or more of the above named programs as stipulated herein. If this agreement continues an existing agreement, all existing terms, conditions, liabilities and obligations of the parties under the prior agreement remain in full force and effect, except to the extent that those terms, conditions, liabilities and obligations conflict with this agreement, in which case 'this agreement takes precedence. By signing this agreement, both parties are bound by its terms and conditions from its beginning effective date, or the beginning effective date of any prior agreemenffs continued by this agreement, until terminated in accordance with this agreement. MUTUAL AGREEMENTS Thc Parties mutually agree: If the Contractor fails to provide services in accordance with the provisions of this contract, TDHS may, upon written notice of default to the Contractor, immediately temfinate the whole or any part of this contract, including refusal to pay claims for. reimbursement, and such termination shall not be an exclusive remedy but shall be in addition to any other rights and remedies provided by law or under this contract. If federal or state laws or other requirements are amended or judicially interpreted so that the continued fulfillment of this contract, on the part of either party, is substantially unreasonable or impossible, or if the parties are unable to agree upon any amendment which would therefore be needed to enable the substantial continuation of the services contemplated by this contract then, the parties shall be discharged from any further obligations created under the terms of this contract, except for the equitable settlement of the respective accrued interest or obligations, including audit findings, incurred up to the date of termination. This contract may be canceled by mutual consent. However, if such mutual consent cannot be attained, then and in that event, either party to this contract may consider it to be canceled without cause by giving thirty (30) days notice in writing to the other party and this contract shall thereupon be canceled upon the expiration of such thirty (30) day period. Nothing in this paragraph shall be construed to prohibit immediate cancellation pmsuant to above paragraphs A and/or B. EXHIBIT 4 CONTRACTOR PROGRAM ADMINISTRATION AND FINANCIAL MANAGEMENT The Contractor will comply with the applicable regulations for its designated program, as well as 7 CFR Parts 245 and 250, as amended, the Uniform Federal Assistance Regulation (7 CFR, Part 3015, as amended), Audits of State, Local Governments, and Non-Profit Organizations (7 CFR 3052, as amended)and state policies and procedures as issued and amended by TDHS. The Contractor further aga:ees to perform as described in its application (including its Policy statement and supporting documents, and approved amendments t.o the application) for participation in the designated program. Bo Eo Ao Bo Co D The Contractor accepts final administrative and financial responsibility for food service operations in each school, summer feeding site, and child and/or adult care facility, hereinat~er referred to as a site, operated or sponsored by the Contractor. The responsibility includes any audit exceptions or payment deficiency in the program covered by this contract, and all subcontracts hereunder, which are found at~er monitoring or auditing by TDHS or USDA and will be responsible for the collections and payback of any amount paid in excess of the proper claim amount. The Contractor submits for TDHS approval only those applications for sites which have delegated the authority for the administration of food service operations to the Contractor or which have executed subagreements with the Contractor for the administration of food services operations. Contractors participating in the NSLP agree · - 1. that the official signing the Claim for Reimbursement will be responsible for reviewing and analyzing meal counts to ensure accuracy and compliance with federal regulations 2. to enter into an agreement to receive donated foods as required by federal regulations, and 3. to price lunch as a unit Contractors participating in the CACFP provide or accept responsibility for the provision of organized, non-residential child day care and will mediately report to The Texas Department of Protective and Regulatory Services (TDPRS) Licensing or Child Protective Services staff, any suspected violations of TDPRS Licensing standards or suspected abuse of children in sponsored centers or day homes. me RECORD KEEPING The Contractor will keep financial and supporting documents, statistical records, and any other records pertinent to the services for which a claim was submitted in the manner and detail prescribed by TDHS. The records and documents will be kept for a minimum of 3 years and 90 days after the termination of the federal fiscal year for the relevant program. If any litigation, claim, or audit involving these records begins before such period expires, the Contractor will keep the records and documents for not less than 3 years and 90 days and until all litigation, claims or audit findings are resolved. The case is considered resolved when there is a final order issued in litigation, or a written agreement is entered into between TDHS and the Contractor. The Contractor will keep records of non-expendable property acquired under the contract for 3 years and 90 days at, er final disposition of the property. The Contractor and its subcontractors will allow TDHS and USDA officials and other appropriate officials determined by TDHS to inspect facilities and records and to audit, examine, and copy records at any reasonable time. This includes access to all records of costs paid, even in part, by TDHS. The Contractor and its subcontractors will establish a method to secure the confidentiality of records and other information relating to clients in accordance with the applicable federal law, roles, and regulations, as well as the applicable state law and regulations. The provision shall not be construed as limiting the Department's right of access to recipient case records or other information relating to clients served under this contract. The Contractor certifies that the goods and/or service(s) covered by this contract are designated to be used prior to, during, and after calendar year 2000 AD. The goods and/or service(s) will be operated during such time periods without error relating to date which represents different centuries or more than one century. CIVIL RIGHTS POLICY COMPLIANCE A. The Contractor agrees to comply with Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and all requirements imposed by the regulations of the Department of Agriculture (7 CFR Part 15), Department of Jnstice (28 CFR Parts 42 and 50) and FNS directives or regulations issued pursuant to that act and the regulations. Section 504 of the Rehabilitation Act of 1973 (Public Law 93-112), the Americans with Disabilities Act of 1990 (Public Law 101-336), Title IX of the Education Amendments of 1972 (7 CFR Part 15a), the Age Discrimination Act of 1975 (Public Law 94-135), and all amendments to each, and all requirements imposed by the regulations issued pursuant to these acts. In addition the contractor agrees to comply with Title 40, Chapter 73, of the Texas Administrative Code. These provide in part that no person in the United States shall, on the ground of race, color, national origin, sex, age, disability, political beliefs, or religion be excluded fi.om participation in, or denied any aid, care, service or other benefits provided by federal and/or state funding, or otherwise be subjected to discrimination. The contractor also agrees to comply with Health and Safety Code Section 85.113 (relating to workplace and confidentiality guidelines regarding AIDS and HIV). The contractor hereby gives assurance that it will immediately take any measures necessary to effectuate this agreement. B. This assurance is given in consideration of and for the purpose of obtaining any and all federal financial assistance, grants and loans of federal funds, reimbursable expenditures, grant or donation of federal property and interest in property, the detail of federal personnel, the sale and lease off and the permission to use, federal property or interest in such property or the furnishing of services without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale, lease or furnishing of services to the recipient, or any improvements made with federal financial assistance extended to the program applicant by the TDHS. This includes any federal agreement, arrangement, or other contract which has as one of its purposes the provision of cash assistance for the purchase of food, and cash assistance for purchase or rental of food service equipment or any other financial assistance extended in reliance on the representation and agreements made in this assurance. ¢ C. The Contractor agrees to compile data, maintain records, and submit reports as required, to permit effective enforcement of the above Acts and permit authorized TDHS, USDA and FNS personnel during normal working hours to review such records, books, and accounts as needed to ascertain compliance with the above Acts. If there are any violations of this assurance, TDHS, USDA and FNS have the right to seek judicial enfomement of this assurance. This assurance is binding on the Contractor, its successors, transferees, and assignees as long as it receives assistance or retains possession of any assistance from the department. Thc person whose signature appears on this contract is authorized to sign this assurance on the behalf of the Contractor. Do A religious or charitable organi7ation is eligible to be a contractor on the same basis as any other private organization. The contractor retains its independence from State and local governments, including the contractor's control over the definition, development, practice, and expression of its charitable or religious beliefs. Except as provided by federal law, TDHS shall not interpret this contract to require a charitable or religious organization to alter its form of internal governance or remove religious art, icons, scripture, or other symbols. Furthermore, if a religious or charitable organization segregates the government funds provided under the contract, then only the financial assistance provided by these funds will be subject to audit. However, neither TDHS's selection ofa charitable or faith-based contractor of services nor the expenditure of funds under this contract is an endorsement of the contractor's charitable or religious character, practices, or expression. The purpose'of this contract is the provision of services; no State expenditures have as their objective the funding of sectarian worship, instructions, or proselytization. A charitable or faith-based provider of services under this contract shall reasonably apprise all assisted individuals of the following: "Neither TDHS's selection of a charitable or faith-based provider of services nor the expenditure of funds under this contract is an endorsement of the provider's charitable or religious character, practices, or expression. No provider of services may discriminate against you on the basis of religion, a religious belief, or your refusal to participate in a religious practice. If you object to a particular provider because of it~ religious character, you may request assignment to a different provider. If you believe that your rights have been violated, please discuss the complaint with your provider or notify yom local TDHS Special Nutrition Programs office. Section 104 of The Personal Responsibility and Work Opportunity Reconciliation Act of 1996.42 U.S.C. § 604a, sets fort[ certain additional rights and responsibilities for charitable and faith-based providers of services, certain additional fight: of assisted individuals, and certain additional responsibilities of TDHS to these providers and assisted individuals. Thi: contract is subject to those additional rights and responsibilities. TDHS CLAIMS PAYMENT Ao TDHS will, subject to the federal appropriation and availability to TDHS of sufficient funds lbr the applicable program, make program payment to the Contractor in accordance with the terms of this agreement. No reimbursement shall be made for performance under this agreement occurring prior to (a) the beginning effective date of this agreement or (b) a later date established by TDHS based on the date of receipt of a fully executed copy of this agreement. In accordance with Section 403.055(h) of the Governme. nt Code, as added by Act of May 19, 1999, 76th Leg. R.S., ch. 583, Sec. 1, 1999 Tex. Sess. Law Ser. 3125 (Vernon), any payments owing to the contractor under this contract will be applied toward elimination of the contractor's indebtedness to the state, delinquency in payment of taxes to the state, or delinquency in payment of taxes that the comptroller administers or collects until the indebtedness or delinquency is paid in full. This clause does not apply if federal law requires payment to be made to the contractor for goods and services provided in support of any of the USDA child and adult nutrition programs, and may not apply if federal law conditions the receipt of the money for these goods or services to the state on the basis of payment being made to the contractor. IMMIGRATION ': The Contractor agrees to comply with the requirements of the Immigration Reform and Control Act of 1986 regarding employment verification and retention of verification forms for any individuals hired at, er November 6, 1986, who will perform any labor or services under this contract. CERTIFICATION ~i~ Ao Regarding Debarment, Suspension, Ineligibility, or Voluntary Exclusion For Covered Contracts - The contractor certifies, by execution of this agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in this contract by any federal department or agency or by the State of Texas. By making this certification the contractor agrees to the following terms: The above certification is a material representation of fact upon which reliance was based when this contract was' entered into. If it is later determined that the contractor knowingly rendered an erroneous certification, in addition to other remedies available to the federal government, the Department of Health and Human Services, United State Department of Agriculture or other federal department of agency, or the Texas Department of Human Services may pursue available remedies, including suspension and/or debarment. The contractor shall provide immediate written notice to the person to which this certification is submitted if at any time the contractor learns that the certification was erroneous when submitted or has become erroneous by reason of changed circumstances. The words "covered contract," "debarred," suspended," "ineligible," "participant," "person," "principal," "proposal," and voluntarily excluded," as used in this certification have meanings based upon materials in the Definitions and Coverage sections of federal rules implementing Executive Order 12549. Usage is defined in the attachment. The contractor agrees by submitting this certification that, should the proposed covered contract be entered into, it shall not knowingly enter into any subcontract with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the Department of Health and Human Services, United States Department of Agriculture or other federal department or agency, and/or the Texas Department of Human Services, as applicable. CERTIFICATION (Continued) 'B. Co Do Eo The contractor further agrees by submitting this certification that it will include TDHS Form 2046 titled "Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion for Covered Contracts" without modification, in all covered subcontracts and in all solicitation for all covered subcontracts. A contractor may rely upon a certification of a subcontractor that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered contract, unless it knows that the certification is erroneous. A contractor must, at a minimum, obtain certificates from its covered subcontractor upon each subcontractor's initiation and upon each renewal. Nothing contained in all the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this certification document. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. Except for contracts authorized under paragraph 4 of these terms, if a contractor in a covered contract knowingly enters into a covered subcontract with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the federal government, Department of Health and Human Services, United States Department of Agriculture, or other federal department or agency, as applicable, and/or the Texas Department of Human Services may pursue available remedies, including suspension and/or debarment. Regarding Federal Lobbying - This certification applies only to this contract and is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The contractor certifies, to the best of his or her knowledge and belief, that: No federally appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, or the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. If any funds other than federally appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federally funded contract, subcontract, subgrant, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Forrr to Report Lobbying," in accordance with its instructions. The contractor shall require that the language of this certification be included in the award documents for all covered subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all covered subrecipients shall certify and disclose accordingly. The contractor certifies that if it is a corporation, it is either a for-profit corporation that is not delinquent in its franchise tax payments to the State of Texas, or is a non-profit corporation or is otherwise not subject to payment of franchise taxes to the State of Texas. The contractor certifies that all information submitted pursuant to this agreement is true and correct. The contractor understands that the deliberate misrepresentation or withholding of information is a violation of this contract and may result in prosecution under applicable state and federal statutes. Under Section 231.006, Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid, or application is not ineligible to receive the specified grant, loan, or payment and acknowledges tl~ VHI. EFFECTIVE DATE AND SIGNATURES The parties hereto in their capacities stated, afl.tx their signatures and bind themselves for the faithful performance of the terms of this contract pursuant to participation in the following program or programs: National School Lunch Program School: Breakfast Program Special Milk Program Cltv of D~nton Name of Contracting Organization (Please print or type) .... Child and Adult Care Food Program Summer Food Service Program contracts on behalf of the contracting organization. Mike Conduff Name of Official Signing (Please print or type) City Manaqer Title of Official (Please print or type) TEXAS DEPARTMENT OF HUMAN SERVICES 'TI~HS Representative until terminated. Date: Approved for Form by OGC: Si_enature on file Revised May 2001 Texas Department of Human Services SPECIAL NUTRITION PROGRAM CERTIFICATION OF AUTHORITY This is to certify that the following person(s): Name of Authorized Representative (please type or print) Title Michael A. Conduff Cit7 Mana~ler Form 4508 May 2000 X Signature - Authorized Representative Name of Authorized Representative (please type orpdnt) Kathy Schaeffer Title Program Area Manager Signature - Authorized Representative is (are) designated as an Authorized Representative of Name of Contracting Organization Cit~ of Denton Address (Street, City, State, ZIP) 321 E. McK nney St., Denton, TX 76201 The representative(s) designated above, and myself, acknowledge that each is individually authorized on behalf of the contracting organization to make written agreements with the Texas Department of Human Services to operate a food program, to sign documents or reports about the agreement, and to present claims for reimbursement, when appropriate, to the department. By signing this document, we certify individually and collectively that to the best or our knowledge and belief, all documents submitted physically or electronically on behalf of the above named Contracting Organization pursuant to our participation in any and all programs administered by Special Nutrition Programs, TDHS, arefwill be true and correct in all respects, that they are/will be completed according to the terms and conditions of existing agreements including amendments, that records are/will be available to support any and all claims, and that we will not submit claims {~xcluding amended/adjusted claims) for goods or services for which we have already received payment. We recognize that we are fully responsible for any excess amounts which may result from errors made in relation to the completion and submission of claims. We are also aware that deliberate misrepresentation or withholding of information may result in prosecution under applicable state and federal statutes. Name of Official of Contracting Agency (please type orprint) M chae A. Conduff Title C t¥ Manager X Signature - Official of Contracting Agency DELETED AUTHORIZED REPRESENTATIVES: A contracting organization may not have more than three (3) Authorized Representatives, including the Official of the Contracting Agency. If you are replacing or deleting an Authorized Representative, list the name(s) of the individual(s) to be removed as Authorized Representative(s) below: IName of Deleted Representative I Name of Deleted Representative Name of Deleted Representative I FOR DHS USE ONLY Contract No. 75- Received By Date Received EXHIBIT 5 CITY OF DENTON CITY COUNCIL MINUTES February 13, 2004 Join Meeting of the City of DeNon City Council and the DeNon IndependeN School District Board of Trustees on Friday, February 13, 2004 at 12 noon in the Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, Montgomery, and Thomson. ABSENT: Council Members McNeill and Redmon 1. Call to order; announce quorum, introductions. Mayor Brock called the meeting to order and announced that a quorum of the council was present. 2. The Council received a report and held a discussion regarding an update on the Natatorium including but not limited to actual performance numbers for the first season. Janet Simpson, Director of Parks and Recreation, reviewed the performance numbers for the first season of the Natatorium and Water Works. She presented attendance figures, financials and the adjustments that would be made in the operations such as hours in the next season of operation. Presentation by Charter Builders and VLK for the 2003 Design Award Program from the Fort Worth Chapter American Institute of Architects for the Natatorium. 3. The Council received a report from the DISD regarding their staff development award and Pat Sumurall production. Sharon Cox, Public Information Officer-DISD, made the presentations. The Texas Curriculum Council had recognized the DISD for its Salsa program started in the elementary schools to encourage science awareness. The DISD also was awarded the Pat Sumurall award. 4. The Council received a report and held a discussion regarding the appoiNmeNs of citizen committees for bond issues (City, February 2005; DISD, September 2004) Jean Schaake, School Board PresideN, stated that the DISD had started the process of putting together an advisory committee to assist with their upcoming bond election for future facilities the DISD would be requiring. She felt it would be wise to stagger the appointment of the bond committees for the City and DISD for the benefit of the community in order to have good participation on the committees. Mayor Brock stated that the City would begin formation of a citizens committee this summer for its bond program with the election to be held in February of 2005. A preliminary format for appointments would be for each council member to appoint 7 members to the committee. Consensus of the Council and DISD was to have join membership of city and DISD staff on the committees to assist with the development of the plans for the bond programs. 5. The Council received a report and held a discussion regarding the DISD Fiber Project. Dr. Braswell, SuperiNendeN of Schools, preseNed an update on the DISD's fiber project. He stated that the joint fiber project between the City and DISD was starting to present some challenges as the DISD fiber service area was now extending beyond the city service area. One City of DeNon City Council Minutes February 13, 2004 Page 2 option that the DISD was considering was to capitalize the fiber project, which would mean that the DISD would own the project. Issues to consider were how to work with the join project within the city limits and outside the city limits. Braswell reviewed the future locations for new elementary and high schools plus the athletic complex to be located at the site of the football stadium. The Council held a general discussion regarding jurisdictional overlap issues, especially as it related to growth. Council and DISD poiNs of discussion included: · MaiNain awareness of what each eNity was doing in regards to building projects (schools/roads) and bond projects. · Maintain mutual cooperation and respect between the two entities. · The DISD and City had a reputation throughout the State of having an excellent cooperative relationship. · Develop a dialog among the staff of the two entities in regards to daily operations. · Consider the impact of infrastructure development on the DISD. · Ask each entity-WVhat can I do to help you?'for mutual cooperation. · Consider school finances as it related to property tax. · Present a unified stance between the DISD and the City relative to tax-exempt property. · Continue with this type of discussion at upcoming meetings, especially in regards to impact fees. · Devise creative thinking relative to this discussion regarding impact fees. · Consider studeN safety and traffic-roads with jurisdictional overlap/transportation issues- crossing guards. 7. Council discussed a determination for the next meeting date. Consensus of the Council and DISD was to find a date, preferably at Friday, at the end of March or early April for an early morning meeting (7:30 a.m.) with the DISD hosting. 8. With no further business, the meeting was adjourned at 2:15 p.m. JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS EULINE BROCK MAYOR CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES February 17, 2004 After determining that a quorum was presem, the City Council of the City of DeNon, Texas convened in a Work Session on Tuesday, February 17, 2004 at 4:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None Item 3 was considered. 3. The Council received a report, held a discussion and give staff direction regarding the annual audit. Terry Kyle, Deloitte and Touche, presemed the details regarding the year-end audit. The audit was conducted in accordance with auditing standards generally accepted in the United States and the standards applicable to financial audits comained in Governmem Auditing Standards. The audit did not find any material weaknesses in internal controls. He stated that the audit was clean with no problems noted. He had reviewed all of the information on the audit in detail with the Council Audit Committee. Council returned to the regular agenda order. 1. The Council received a report, held a discussion and gave staff direction regarding DeNon Municipal Electric's (DME's) status as a non opt-in entity in retail electric deregulation. Sharon Mays, Director of Electric Utilities, presented details on DME's status as a non-opt-in emity in retail electric deregulation. Options included: (1) no change-remain the sole provider of transmission, distribution and energy to all retail customers within DME service territory; (2) Opt-in- Open DME service territory to retail competition for energy sales; provide only transmission and distribution service. That would require customers to purchase energy from other regional energy providers; provide both transmission and distribution service and sell energy in competition with other retail energy providers; or (3) sell the emire electric utility. A decision to opt-in would require a minimum of two years to implement and may not be reversed. The lowest cost, least risk option for Denton citizens was for DME to remain an opt-out entity. Opting in added costs to the DME transmission and distribution rate that all electric customers in Denton must pay, regardless of what company they purchased their energy from. Under either opt-in scenario, there was a risk that there would not be sufficient electric system revenue to cover contractual obligations to TMPA. General opt-in issues included increased noncompetitive transmission and distribution costs for Denton customers; exposure to cash flow problems and other ERCOT software errors or upgrades; provision of provider of last resort service; loss of ability to communicate directly with citizens who change energy providers. Rates with DME in an opt-out rate would be 9.6 cents per KWH. The opt-in rate initially was 10.1 to 10.8 cents per kwh after some period with lower rates available from other retail energy providers. Council would need to consider carefully how the policy guidelines and desired outcomes it developed would affect DME's ability to maimain competitive rates, DME's quality of service and the impact of DME rates on economic development in Denton. City of DeNon City Council Minutes February 17, 2004 Page 2 Council discussed having the Mayor write an article in the Denton Record-Chronicle relative to the opt-in/opt-out issue and finding alternative ways to communicate with customers 2. The Council received a report, held a discussion and gave staff direction regarding approval of a residemial renewable electric rate schedule RG. Glenn Fisher, Assistant Director of Electric Utilities, stated that by choosing the residential renewable electric rate, customers would be supporting cleaner renewable energy sources in the ERCOT power grid. The rate would be available for residential customers with expansion to the three phase residemial and small commercial sectors in early 2005. Wind generated energy would be used when available and when it was not, convemional methods would be used. Consensus of the Council was to proceed with rate proposal. 4. Staff responded for requests for clarification of consent agenda items listed on the consem agenda for February 17, 2004. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the items listed below under the Closed Meeting section of this agenda. 1. The Council considered the following in Closed Meeting: Consultation with the City Attorney-Under TEXAS GOVERNMENT CODE Section 551.071. Discussed status of litigation styled Ugwuh v. City of Denton, Cause No. 2002-41462-362 currently pending in the 362nd District Court of Denton County, Texas. Considered and discussed status of litigation styled Ortegren, et al. v. City of Denton, Cause No. 2002-30205-211, curremly pending in the 211th District Court of Denton County, Texas. Deliberations regarding economic developmem negotiations- Under TEXAS GOVERNMENT CODE Section 551.087 and Consultation with the City Attorney-Under TEXAS GOVERNMENT CODE Section 551.071. Deliberated and discussed commercial or financial information received from a business prospect and offers of financial or other incentives to the business prospect for the purposes of economic development negotiations with Fastenal Company, a Minnesota Corporation, regarding the construction of a facility to house regional headquarters, manufacturing, and distribution operations to be located generally near the intersection of Airport Road and Corbin Road within the City of DeNon. Also, receipt of legal advice from the City Attorney on matters in which his professional responsibility to the City Council requires private legal consultation. City of DeNon City Council Minutes February 17, 2004 Page 3 Regular Meeting of the City of Demon City Council on Tuesday, February 17, 2004 at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards There were no proclamations/awards presemed at this meeting. B. Recognition of staff accomplishments City Manager Conduffpresemed staff accomplishmems to the Council. 3. CITIZENS REPORTS A. The Council received citizen reports from the following: 1. David Wieland regarding a proposed apartmem developmem for Demon. Mr. Wieland stated he was proposing a developmem on McKinney Street that would require approval for tax credit units. He stated that as the city was over the state average for tax credit units, he would need council support to receive the credits. He felt that there was still a need for such a developmem. He had talked with the DISD and they felt the proposal would not negatively impact the ISD. 2. Petrina Washington regarding responsible and responsive governmem. Ms. Washington expressed concern regarding the manner of appoimmems to the Demon Housing Authority. She understood that the Mayor was the individual to make those appoimmems due to the way the Authority was set up in the legislation. 4. CONSENT AGENDA Council Member McNeill requested that Item F be pulled for separate consideration. Thomson motioned, Kamp seconded to approve the Consem Agenda and accompanying ordinances and resolutions with the exception of Item F. On roll vote, Burroughs"ayd; Kamp"ayd', McNeill"ayd; Montgomery"ayd', Redmon"ayd', Thomson"ayd'and Mayor Brock"ayd'. Motion carried unanimously. Council considered Item F. City of DeNon City Council Minutes February 17, 2004 Page 4 Council Member McNeill expressed concerns about the lack of wording in the ordinance as to how the permit process would affect local based businesses. He suggested a Legal review to determine if such an exception could be allowed. If so, he would recommend that it be added to the ordinance and if not, pass the ordinance as presented. Mayor Pro Tem Burroughs stated that at this time, no local business would qualify. He felt that this type of exception might attract such a business to Denton and he was not sure if there was a public need or necessity to have that kind of business located here. Mayor Brock raised a concern of favoritism. Momgomery motioned. McNeill seconded to adopt the ordinance subject to a review in one year. On roll vote, Burroughs'hyd', Kamp 'hyd', McNeill"ayd', Momgomery"ayd', Redmon"ayd', Thomson 'hyd'axtd Mayor Brock"ayd~ Motion carried unanimously. 2004-037 - An ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a professional services agreemem with Wolfe, Tidwell & McCoy, LLP, for professional legal services relating to litigation styled Ugwuh v. City of Denton, Cause No. 2002-41462-362 curremly pending in the 362nd District Court of Denton County; authorizing the expenditure of funds therefor; and providing an effective date. 2004-038 - An ordinance authorizing the City Manager to execute change order three to the contract between the City of Denton and Huitt-Zollars Inc.; providing for the expenditure of funds therefore; and providing an effective date (Ordinance No. 2001-375; PSA 2685-Professional Services Agreemem for Design of Solid Waste Facilities awarded to Huitt-Zollars, Inc. in the amount of $202,900, Change Orders One and Two in the amoum of $85,200, and Change Order Three in the amoum of $38,300 for a total amoum of $326,400). 2004-039 - An ordinance awarding a comract for the purchase of a CASE 590 loader/backhoe as awarded by the State of Texas Building and Procuremem Commission; providing for the expenditure of funds therefor; and providing an effective date (File 3137-Loader/Backhoe for Street Departmem awarded to Equipmem Support Services in the amoum of $60,935.24). 2004-040 - An ordinance of the City of DeNon, Texas authorizing the City Manager to execute an agreement for professional legal services with the law firm of Booth, Ahrens & Werkemhin, P.C., a Texas professional corporation for legal services pertaining to numerous listed water and wastewater issues; regulatory activities; and other related matters affecting the interests of Denton, Texas; authorizing the expenditure of funds therefor; providing for retroactive approval of the agreement; and providing an effective date. 2004-041 - An ordinance of the City of DeNon, Texas authorizing the City Manager to execute an agreement for Professional Legal Services with the Law Offices of Jim Boyle, PLLC. for professional legal and lobbying services related to interim matters preceding the 79 Regular Texas Legislative Session pertaining City of Demon City Council Minutes February 17, 2004 Page 5 to the City of Denton/Denton Municipal Electric; authorizing the expenditure of funds therefor; providing for retroactive approval thereof; and providing an effective date. Fo 2004-042 providing (Schedule Ordinance §24-69 of - An ordinance of the City Council of the City of Demon, Texas for the addition of the Collection and Transportation Services Permit SWP) to the schedule of rates for solid waste service comained in No. 2003-351; providing for re-titling, replacemem and amendmem of the City of Demon Code of Ordinances; providing for the amendmem of §24-70 of the City of Demon Code of Ordinances; providing for a repealer; providing for a severability clause; and providing an effective date. Go R2004-009 - A resolution of the City of Demon, Texas, authorizing the submission of a grant application to the Criminal Justice Division of the Office of the Governor, State of Texas, requesting funding for the Denton Teen Court Program for Juveniles; and providing an effective date. Ho 2004-043 - An ordinance of the City of Demon, Texas approving and authorizing the Mayor to execute an Interlocal Ambulance Agreement between the City of Denton and Denton County for Ambulance Services; and declaring an effective date. 2004-044 - An ordinance of the City of Demon, Texas approving and authorizing the Mayor to execute an Interlocal Fire Protection Agreement between the City of Denton and Denton County for Fire Protection Services; and declaring an effective date. Jo Approved an exaction variance of Section 35.20.2(L.2.) of the Code of Ordinances concerning perimeter paving. The 0.197-acre parcel was located on the southwesterly comer of Margie Street and McCormick Street. The property was located in a Dowmown Residemial 2 (DR-2) zoning district. A single-family residence existed and multifamily was proposed. The Planning and Zoning Commission recommended approval of the partial variance (7-0). (V03-0021) Ko 2004-045 - An ordinance by the City of Demon abandoning and vacating a portion of street right-of-way to the City of Demon, Texas recorded in Clerk's File No. 2003-R0018777 of the Real Property Records of Demon County, Texas, being part of the H.H. Haygood Survey, Abstract No. 517; and providing an effective date. (Coumry Club Village, Phase l-A, Partial Right-of-Way Abandonmem) Lo 2004-046 - An ordinance ordering an election to be held in the City of Demon, Texas, on May 15, 2004, and, if a runoff election is required, on June 19, 2004, for the purpose of electing Council Members to Places 5 and 6 and electing a Mayor to Place 7 of the City Council of the City of Demon, Texas, designating voting places and appoiming election officials, providing for bilingual notice of the election, ordering that an electronic voting system be used, making additional City of DeNon City Council Minutes February 17, 2004 Page 6 provisions for the conduct thereof, providing an open meetings clause, and providing for an effective date. 5. PUBLIC HEARINGS A. The Council held the first of two public hearings to consider the volumary annexation and service plan for approximately 80.3 acres of land generally located north of Pockrus Page Road, west of Swisher Road, and south of Edwards Road in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ETJ). (A03-0002, Village of Carmel Annexation) Kelly Carpemer, Director of Planning and Development, stated that applicant had withdrawn 44.87 acres from the request. She presented the details of the proposal. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. No action was necessary at this time on this item. B. The Council held the first of two public hearings to consider the volumary annexation and service plan for approximately 19.51 acres of land generally located north of Pockrus Page Road, east of Mayhill Road, and south of Edwards Road in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ETJ). (A03-0003, Flowers Baking Company Annexation) Kelly Carpemer, Director of Planning and Development, presented the details of the proposal. No development was proposed at this time. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. No action was necessary at this time on this item. C. 1. The Council held a public hearing and considered adoption of an ordinance amending Sub-Chapters 3 (Procedures), 16 (Subdivisions), 17 (Environmemally Sensitive Areas), and 22 (Gas Well Drilling and Production) of the Developmem Code associated with gas well drilling and production. (SI03-0024, Gas Well Amendments) 2. The Council considered adoption of an ordinance amending the Development Review Fee Schedule to add fees for Watershed Protection Permits, gas well inspections, and tree mitigation associated with gas well developmem. (SI04-0001, Fee Schedule Amendments) City of DeNon City Council Minutes February 17, 2004 Page 7 Larry Reichhart, Assistant Director of Planning and Development, stated that criteria had been developed to safeguard the environmem and allow gas wells in the flood plain. He reviewed the process that was involved in determining the proposals. There were four public hearings held regarding the proposed amendmems and a number of work sessions. Mayor Brock asked Ken Banks, Water Resource Program Manager, for a response on the safeguards proposed. Banks stated that a number of options had been considered in regards to the potential environmental impacts. One main issue was the production of a mud pit that was an open pit used to mix mud materials used in the drilling operation. The pits were open and there was a potential for materials to leak out of the pit. Standards were added to make sure all material levels would be lower than dangerous levels. A buffer would be in place for protection and outside the floodway. The proposed ordinance established a series of standards and inspections that would minimize the risk of this activity. Council discussion included: · Number of inspections · Enforcement provisions · Recem spill in DeNon and possible comamination of the adjacem soil · Discussion on public input and amount of that input The Mayor opened the public hearing. The following individuals spoke during the public hearing: Bob Cates, 4226 I35 North, Denton, 76207-favor Julie Smith, 532 W. Windsor, DeNon, 76207 - opposed Peggy LaPom, 1900 Highland Park Circle, DeNon, 76205-opposed Susan Apple, 8000 Woodcreek Circle, Argyle, 76226 - opposed A Commem Card was received from Patrice Lyke, 1109 Egan, DeNon, 76201 in opposition. The Mayor closed the public hearing. Council discussed the current specific use permit protections versus the new regulations and the differences between the two. Thomson motioned, Mayor seconded to reopen the public hearing to a hire consultant to provide an opinion on the protection aspects of the ordinance. Burroughs offered a friendly amendment to eliminate the outside consultant and schedule the item for the March 2nd agenda for consideration. Council Member Thomson and Mayor Brock agreed with the friendly amendmem. On roll vote, Burroughs "ayd', Kamp "ayd', McNeill "ayd', Momgomery"ayd', Redmon"ayd', Thomson"ayd'axtd Mayor Brock"ayd'. Motion carried unanimously. City of DeNon City Council Minutes February 17, 2004 Page 8 D. The Council held a public hearing and considered adoption of an ordinance regarding the rezoning of approximately 6.6 acres from Neighborhood Residemial 2 (NR-2) zoning district to Neighborhood Residemial 4 (NR-4) zoning district. The property was located approximately 350 feet south of Paisley Street, between Audra Lane and Mack Drive. Applicam proposed single-family uses. The Planning and Zoning Commission recommended approval (6- 1). [Super majority vote required for approval.] (Z03-0030, Laurel Oaks DevelopmenO Mayor Brock indicated that the supermajority vote was no longer required as some opposition had been withdrawn. Kelly Carpenter, Director of Planning and Development, presented the details of the proposal and discussed the removal of some of the opposition resulting in less than 20% opposition to the proposal. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Karen Mitchell, Mitchell Planning Group-favor Eric Janssen, 413 Fox Creek Court, Denton, 76209 - opposed The Mayor closed the public hearing. Council discussion included: · Was this reasonable zoning? · Was this a tactical procedure to cut out opposition for future zoning? · Concern regarding the emire parcel-was this done as a zoning creep? The following ordinance was considered: NO. 2004-047 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZON1NG CHANGE FROM NEIGHBORHOOD RESIDENTIAL-2 (NR-2) ZON1NG DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL-4 (NR-4) ZON1NG DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 6.6 ACRES OF LAND LOCATED APPROXIMATELY 350 FEET SOUTH OF PAISLEY STREET, BETWEEN AUDRA LANE AND MACK DRIVE 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. (Z03-0030) Burroughs motioned, Thomson seconded to adopt the ordinance. On roll vote, Burroughs"ayd', Kamp "ayd', McNeill "ayd~ Momgomery "nay', Redmon "ayd', Thomson "ayd' and Mayor Brock 'hay'. Motion carried with a 5-2 vote. City of DeNon City Council Minutes February 17, 2004 Page 9 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered approval of a resolution of the City of DeNon, Texas calling a public hearing to consider establishing a Reinvestment Zone VII for Fastenal Company; and declaring an effective date. Linda Ratliff, Director of Economic Development, stated that this resolution would formally call for a public hearing on the reinvestment zone for Fastenal. The following resolution was considered: NO. R2004-010 A RESOLUTION OF THE CITY OF DENTON, TEXAS CALLING A PUBLIC HEARING TO CONSIDER ESTABLISHING A REINVESTMENT ZONE VII FOR FASTENAL COMPANY; AND DECLARING AN EFFECTIVE DATE. Burroughs motioned, Momgomery seconded to approve the resolution. On roll vote, Burroughs '~d', Kamp"ayd', McNeill'hyd', Montgomery"ayd', Redmon"ayd', Thomson"ayd' and Mayor Brock"ayd'. Motion carried unanimously. B. The Council considered appoimmems to the Council Ethics Committee. The Council nominated Council Members Kamp and Thomson, Mayor Brock and Ex-Officio Member Charldean Newell to the Council Ethics Committee. McNeill motioned, Momgomery seconded to approve the nominations. On roll vote, Burroughs '~d', Kamp"ayd', McNeill'hyd', Montgomery"ayd', Redmon"ayd', Thomson"ayd' and Mayor Brock"ayd'. Motion carried unanimously. C. The Council considered nominations/appoimmems to the City's Boards and Commissions. No nominations were made at this meeting. D. The Council considered the appoimmem of an ad hoc Council Appoimee Performance Review Committee. Council nominated Council Members McNeill, Momgomery and Thomson as members of the Committee. On roll vote, Burroughs'hyd', Kamp"ayd', McNeill'hyd', Momgomery"ayd', Redmon"ayd', Thomson"ayd'and Mayor Brock"ayd'. Motion carried unanimously. E. New Business The following items of New Business were suggested by Council Members for future agendas: 1. Council Member Redmon asked to have the NRMU 12 zoning along McKinney Street studied. City of Demon City Council Minutes February 17, 2004 Page 10 2. Council Member Redmon asked about the role of the City in the Demon Housing Authority and how best to publicize that role. 3. Council Member McNeill asked for a report on Carroll Blvd in terms of how the comract was developed regarding the construction-whether only one block at a time would be done instead of large sections at one time. 4. Mayor Pro Tem Burroughs asked that an advertising sign on Teasley Lane be checked for compliance with the sign ordinance. 5. Council Member Thomson asked staff to investigate "quiet zoneg' at railroad crossings that would designate areas as quiet zones and install alternative protective crossing protection. 6. Council Member Montgomery asked that someone contact the contractor for U.S. 77 to fill in the trench on Sherman Drive. 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 8:35 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES February 24, 2004 After determining that a quorum was presem, the City Council convened in a Work Session on February 24, 2004 at 11:30 a.m. in the Engineering Conference Room, City Hall East. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Kamp, McNeill, Montgomery, Redmon and Thomson. ABSENT: None 1. The Council received a report and held a discussion regarding DeNon Developmem Code issues including but not limited to the formation of an NR-5 zoning category and Planned Developmem (PD) or overlay district instead of or in conjunction with Alternative Developmem Plans. Kelly Carpenter, Director of Planning and Development, reviewed the definition of the old planned development category and indicated that the new development plan did away with the planned development category as many of the old planned developmems were not flexible and smaller lots had to be zoned without a planned development. She stated that an alternative to the planned developmem would be the alternate developmem plan (ADP) that allowed for changes in the site plan but not in the use. Only site design use changes would be allowed. Mayor Brock indicated that some zoning categories allowed apartment uses and without a planned developmem, could presem a problem. She suggested allowing overlay zoning but not for apartments. Carpenter indicated that the current code allowed for overlay districts. Council discussion included: · Contractual zoning versus conditional zoning. · Separate out multi-family for revisions and leave the rest of the code intact. · What to include in"apartmenl~'category such as townhouses. · Consider a housing plan for the city to help maimain housing types in balance. · Consider neighborhood planned overlay districts. · Standards for infill development with overlay districts or alternate development plans. · Consider modifications of the alternate development plan to allow for modification of zoning. · Sharpen the language of the overlay district to encourage use. · Cominue encouraging neighborhood involvemem through the use of neighborhood plans for good solutions for acceptance of zoning issues. · Include certain limits of square footage for residences as part of the overlay plan. · Overlay districts would not be city-initiated; developers or neighborhoods would have to request such districts. · Consider the cost for developers to use overlays-don't make them cost prohibitive. Consensus of the Council was to consider zero lot line developments; encourage small area plans for neighborhoods; and consider building set backs. City of Demon City Council Minutes February 24, 2004 Page 2 Council Member McNeill brought forward commems relative to the Engineering Departmem. He felt there was not a prompt turnaround of projects and that not all projects were treated equally. With no further business, the meeting was adjourned at 1:15 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 23, 2004 Planning & Developmem Jon Fortune, Assistam City Manager SUBJECT A03-0002 (Villages of Carmel) Consider adoption of an ordinance on first reading to volumarily annex 35.43 acres of land generally located north of Pockrus Paige Road, west of Swisher Road, and south of Edwards Road in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ET J). The Planning and Zoning Commission recommends approval (6-0). (Village of Carmel Annexation, A03-0002) BACKGROUND Applicam: Harold Holigan/Rita Beck, Dallas, TX The applicam, Harold Holigan/Rita Beck, petitioned for the volumary annexation of approximately 35.43 acres of land imo the City. The 35.43 acres to be annexed are part of a larger mixed-use developmem (114 acres) consisting of single-family homes, loft apartmems, town homes, neighborhood retail, and walking trails; the Planning and Zoning Commission approved a General Developmem Plan for the project in December 2003. The City Council approved zoning changes at its November 18, 2003 public hearing by a 7-0 vote for the portions of this project that were already in the City of Demon. City Council held public hearings for the annexation on February 17, 2004 and March 2, 2004. The Planning and Zoning Commission held a public hearing for the annexation on March 10, 2004. OPTIONS 1. Proceed with annexation as presented. 2. Proceed with annexation with changes. 3. Discontinue annexation process. RECOMMENDATION The Planning and Zoning Commission recommends approval of the annexation petition. (6-0, Holt absem). ESTIMATED PROJECT SCHEDULE The annexation process will be completed by May 4, 2004 (see Attachmem 3). PRIOR ACTION/REVIEW Application Date 1 st CC Public Hearing 2nd CC Public Hearing P&Z Public Hearing 1 st Reading of Ordinance September 24, 2003 February 17, 2004 March 2, 2004 March 10, 2004 March 23, 2004 FISCAL INFORMATION Annexation and development of this property will increase the assessed value of the city, county, and school district. It will require no short-term public improvements that are the responsibility of the city. ATTACHMENTS 1. Location Map 2. Public Notification (Property Owner Notification Map and Property Owner Responses) 3. Annexation Schedule 4. Draft Annexation Ordinance Prepared by: Chris D. Hatcher, AICP Planner II Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director, Planning and Development ATTACHMENT 1 Location Map NORTH A03-0002 (Villages of Carmel) Location Map ATTACHMENT 2 Public Notification NORTH Notification Map Scale: None Newspaper Notification Date: February 29, 2004 Percem of land within 200' in opposition: 0% 200' Legal Notices* sent via Certified Mail: 11 500' Courtesy Notices* sent via 1st Class Mail: 21 · In Favor: 0 · Opposed: 0 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 3 ANNEXATION SCHEDULE A03-0002 The Village of Carmel Tuesday, 2/17/04 Tuesday, 3~2~04 Wednesday, 3/10/04 Tuesday, 3~23~04 Tuesday, 5/4/04 City Council conducts first public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. [] Annexation Study prepared and available for public review. [] Service Plan prepared and available for public review. City Council conducts second public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. Planning and Zoning Commission public hearings - make a recommendation to City Council regarding the proposed annexation and the proposed zonin,q. City Council by a four-fifths vote institutes annexation proceedings. First readinq of annexation ordinance. · Action must be more than 20 days after the second public hearing but less than 40 days from the first public hearing. City Council by a four-fifths vote takes final action. Second readinq and adoption of the annexation ordinance. City Council considers approval of zoning request. · Council action must be more than 30 days after publication of ordinance and less than 90 days after council institutes annexation proceedings (adopts ordinance on 1st reading). 5 S:\Our Document s\Ordinances\04kA03 -0002.doc ATTACHMENT 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ANNEXING APPROXIMATELY 35.43 ACRES OF LAND CONTIGUOUS AND ADJACENT TO THE CITY OF DENTON, TEXAS, LOCATED SOUTH OF EDWARDS ROAD, WEST OF SWISHER ROAD AND NORTH OF POCKRUS PAGE ROAD IN THE SOUTHEASTERN SECTION OF THE CITY OF DENTON EXTRATERRITORIAL JURISDICTION IN THE GIDEON WALKER SURVEY, ABSTRACT NO. 1330 DENTON COUNTY, TEXAS BEING TWO TRACTS OF LAND SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT NO. 1330, DENTON COUNTY, TEXAS AND BEING ALL OF A CALLED 8.834 ACRE TRACT OF LAND CONVEYED TO KLHB DEVELOPMENT OF DENTON, LLC, AS EVIDENCED IN A DEED RECORDED IN VOLUME 4889, PAGE I799, THE REMAINING PORTION OF A CALLED TRACT ONE, CONVEYED TO JOY POWELL AS EVIDENCED IN A DEED RECORDED IN VOLUME 1695, PAGE 0921, A PORTION OF A CALLED 4.75 ACRE TRACT CONVEYED TO POCKRUS PAGE RD., LTD., AS EVIDENCED IN A DEED RECORDED IN VOLUME 5328, PAGE 5082, A PORTION OF A CALLED 16.0 ACRE TRACT OF LAND CONVEYED TO RICHARD A. BARJA, AS EVIDENCED IN VOLUME 1329, PAGE 202, A PORTION OF A TRACT OF LAND CONVEYED TO SAID RICHARD ARLEN BARIA, ET UX, AS EVIDENCED IN A DEED RECORDED IN VOLUME 471, PAGE 235, THE REMAINING PORTION OF A CALLED 10.395 ACRE TRACT OF LAND CONVEYED TO W. E. BUCKALEW, AS EVIDENCED IN A DEED RECORDED IN VOLUME 530, PAGE 054, A PORTION OF THE REMAINING PORTION OF A TRACT OF LAND CONVEYED TO ED COWART, AS EVIDENCED IN A DEED RECORDED IN VOLUME 414, PAGE 447, A PORTION OF A CALLED 4.00 ARCE TRACT OF LAND CONVEYED TO CHARD TANNER COWART, ET UX, AS EVIDENCED IN A DEED RECORDED IN VOLUME 4784, PAGE 1256, ALL AS RECORDED IN THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; APPROVING A SERVICE PLAN FOR THE ANNEXED PROPERTY; PROVIDING A SEVERABmITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (A03-0002) WHEREAS, on or about September 24, 2003, the property owner, Harold Ffoligan/Rita Beck (the "Petitioner") petitioned for voluntary annexation of approximately 80.3 acres of real property located in the extraterritorial jurisdiction of the City of Denton, Texas; and WHEREAS, on or about February 3, 2004 the Petitioner reduced the size of the area to be annexed to approximately 35.43 acres of land as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on or about March 10, 2004, the Planning and Zoning Commission recommended approval of the annexation; and WHEREAS, the City Council finds that the Property contains fewer than 100 separate tracts of land on which one or more residential dwellings are located on each tract; and WHEREAS, this annexation is voluntary and is being made under Subchapter C-1 of Chapter 43 of the Texas Local Government Code; and WHEREAS, the City Council finds that all required notices were given in the time and manner required by law; and WHEREAS, public heatings before the City Council were held in the Council Chambers on February 17, 2004, and March 2, 2004, (both days being on or after the 20th day but before the 40th day of the date of the institution of the proceedings) to allow ali interested persons to state their viexvs and present evidence bearing upon this annexation; and WHEREAS, annexation proceedings were instituted for the property described herein by the introduction of this ordinance at a meeting of the City Council on March 23, 2004; and WHEREAS, this ordinance has been published in full one time in the official newspaper of the City of Denton on March 28, 2004, after annexation proceedings were instituted and 30 days prior to City Council taking final action, as required by City Charter; and WHEREAS, the City Council finds that the annexation will allow the city to ensure development consistent with The Denton Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Property is hereby annexed to the City of DentOn, Texas. SECTION 3. The service plan, a copy of which is attached hereto and made a part hereof by reference as Exhibit "B" (the "Service Plan") which provides for the extension of municipal services to the Property, is approved as part of this ordinance. The Service Plan was made available for public inspection and explanation to the inhabitants of the area being annexed at the above described public hearings. The Service Plan was consented to by the Petitioner. SECTION 4. Should any part of this ordinance be held illegal for any reason, the holding shall not affect the remaining portion of this ordinance and the City Council hereby declares it to be its purpose to annex to the City of Denton all portions of the Property lawfully annexed regardless of whether any other part of the Property is declared not to be lawfully annexed into the City. If any part of the Property is already included within the city limits of the City of Denton or within the limits of any other city, town or village, or is not within the City of Denton's jurisdiction to annex, the same is hereby excluded from the territory annexed as fully as if the excluded area were expressly described in this ordinance. SECTION 5: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~ day of ., 2004. 2 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3 EXHIBIT "A" BEING TWO TRACTS OF LAND SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT NO. 1330, DENTON COUNTY, TEXAS AND BEING ALL OF A CALLED 8.834 ACRE TRACT OF LAND CONVEYED TO KLHB DEVELOPMENT OF DENTON, LLC, AS EVIDENCED IN A DEED RECORDED IN VOLUME 4889, PAGE 1799, THE REMAINING PORTION OF A CALLED TRACT ONE, CONVEYED TO JOY POWELL AS EVIDENCED IN A DEED RECORDED IN VOLUME 1695, PAGE 0921, A PORTION OF A CALLED 4.75 ACRE TRACT CONVEYED TO POCKRUS PAGE RD., LTD., AS EVIDENCED IN A DEED RECORDED IN VOLUME 5328, PAGE 5082, A PORTION OF A CALLED 16.0 ACRE TRACT OF LAND CONVEYED TO RICHARD A. BARIA, AS EVIDENCED IN VOLUME 1329, PAGE 202, A PORTION OF A TRACT OF LAND CONVEYED TO SAID RICHARD ARLEN BARIA, ET UX, AS EVIDENCED IN A DEED RECORDED IN VOLUME 471, PAGE 235, THE REMAINING PORTION OF A CALLED 10.395 ACRE TRACT OF LAND CONVEYED TO W. E. BUCKALEW, AS EVIDENCED IN A DEED RECORDED IN VOLUME 530, PAGE 054, A PORTION OF THE REMAINING PORTION OF A TRACT OF LAND CONVEYED TO ED COWART, AS EVIDENCED IN A DEED RECORDED IN VOLUME 414, PAGE 447, A PORTION OF A CALLED 4.00 ARCE TRACT OF LAND CONVEYED TO CHARD TANNER COWART, ET UX, AS EVIDENCED IN A DEED RECORDED IN VOLUME 4784, PAGE 1256, ALL OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS (R.P.R.D.C.T.), AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: TRACT 1 BEGINNING AT THE NORTHWEST CORNER OF A CALLED 10.00 ACRE TRACT OF LAND, CONVEYED TO ALLEN P. LUBBERS AS EVIDENCED IN A DEED RECORDED IN COUNTY CLEARK'S FILE NO. 96-R0069629 R.P.R.D.C.T., AND THE NORTHWEST CORNER OF THE CURRENT CITY LIMITS LINE OF THE CITY OF DENTON AS DESCRIBED IN CITY ORDINANCE NUMBER 99-262, SAME BEING IN EDWARDS ROAD; THENCE SOUTH 02 DEGREES 16 MINUTES 53 SECONDS WEST, ALONG THE WEST LINE OF SAID 10.00 ACRE TRACT AND THE WEST CITY LIMITS LINE AS DESCRIBED IN SAID CITY ORDINANCE NUMBER 99-262, A DISTANCE OF 1336.22 FEET TO A CORNER, SAME BEING ON THE NORTH CITY LIMITS LINE AS DESCRIBED IN CITY ORDINANCE 84-17; THENCE NORTH 87 DEGREES 56 M1N'UTES 20 SECONDS WEST, DEPARTING THE WEST LINE OF SAID 10.00 ACRE TRACT AND ALONG SAID NORTH CITY LIMIT LINE, A DISTANCE OF 1193.51 FEET TO A CORNER, SAME BEING ON THE WEST LINE OF AFORESAID 16.0 ACRE TRACT; THENCE NORTH 02 DEGREES 37 MINUTES 25 SECONDS EAST, CONTINUING ALONG THE SAID WEST LINE, A DISTANCE OF 788.12 FEET TO A CORNER; 4 THENCE SOUTH 86 DEGREES 34 MINUTES 49 SECONDS EAST, DEPARTING THE WEST LINE OF SAID 16.0 ACRE TRACT, A DISTANCE OF 511.14 FEET TO A CORNER; THENCE SOUTH 87 DEGREES, 47 MINUTES 33 SECONDS EAST, A DISTANCE OF 302.42 FEET TO A CORNER ON THE WEST LINE OF SAID TED COWART TRACT; THENCE NORTH 02 DEGREES 11 MINUTES 11 SECONDS EAST, ALONG THE WEST LINE OF SAID COWART TRACT, A DISTANCE OF 569.08 FEET TO A CORNER, SAME BEING ON THE SOUTH CITY LIMITS LINE AS DESCRIBED IN CITY ORDINANCE 86- 15; THENCE SOUTH 86 DEGREES 59 MINUTES 34 SECONDS EAST, ALONG SAID CITY LIMITS LINE, A DISTANCE OF 378.63 FEET TO THE POINT OF BEGINNING AND CONTAINING 26.24 ACRES OF LAND. TRACT 2 BEGINNING AT THE NORTHEAST CORNER OF AFORESAID CONVEYED TO SAID KLH_B DEVELOPMENT OF DENTON, LLC; 8.834 ACRE, AS THENCE SOUTH 02 DEGREES 02 MINUTES 31 SECONDS WEST, ALONG THE EAST LINE OF SAID 8.834 ACRE TRACT, THE EAST LINE OF THE JOY POWELL REMAINDER, A DISTANCE OF 724.32 FEET TO A CORNER; THENCE NORTH 87 DEGREES 02 MINUTES 50 SECONDS WEST~ A DISTANCE OF 73.11 FEET TO A CORNER; THENCE SOUTH 02 DEGREES 00 MINTUES 40 SECONDS WEST, A DISTANCE OF 596.16 FEET TO A CORNER; THENCE NORTH 88 DEGREES 42 MINUTES 30 SECONDS WEST, A DISTANCE OF 208.69 FEET TO A CORNER, SAME BEING ON THE EAST CITY LiMITS LINE AS DESCRIBED IN CITY ORDINANCE NUMBER 84-17; THENCE NORTH 02 DEGREES 21 MINUTES 34 SECONDS WEST, ALONG THE SAID EAST CITY LIMITS LINE, A DISTANCE OF 165.27 FEET TO A CORNER; THENCE NORTH 00 DEGREES 00 MINUTES 13 SECONDS EAST, CONTINUING ALONG SAID EAST CITY LIMITS LINE, A DISTANCE OF 315.27 FEET TO A CORNER; THENCE NORTH 88 DEGREES 42 MINUTES 30 SECONDS WEST, CONTINUING ALNG SAID EAST CITY LIMITS LINE, A DISTANCE OF 497.34 FEET TO A CORNER; THENCE NORTH 10 DEGREES 22 MINUTES 22 SECONDS WEST, CONTINUING ALONG SAiD EAST CITY LIMITS LINE, A DISTANCE OF 354.20 FEET TO THE NORTHWEST CORNER OF SAID 8.834 ACRE TRACT, SAME BEING ON THE NORTH CITY LIMITS LINE AS DESCRIBED 1N SAID CITY ORDINANCE NUMBER 84-17; 5 THENCE SOUTH 88 DEGREES 12 MINUTES 56 SECONDS EAST, ALONG THE NORTH LINE OF SAID 8.834 ACRE TRACT, A DISTANCE OF 437.59 FEET TO THE POINT OF BEGINNING AND CONTAINING 9.19 ACRES OF LAND. LOCATION MAP EXHIBIT "B" CITY OF DENTON DRAFT ANNEXATION SERVICE PLAN A03-0002 (Village of Carmel) i. AREA ANNEXED THE ANNEXATION AREA IS LOCATED IN THE SOUTHEAST PORTION OF DENTON' S EXTRATERRITORiAL JURISDICTION AND CONTAINS APPROXIMATELY 35.43 ACRES GENERALLY LOCATED NORTH OF POCKRUS PAGE ROAD, SOUTH OF EDWARDS ROAD, AND WEST OF SWISHER ROAD. II. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Government Code, Sections 43.021, 43.065, and 43.065(b)-(o) (Vernon 1999, as amended). Municipal facilities and services to the annexed area described above will be provided or made available on behalf of the City in accordance with the following plan. The City shall provide the annexed tract the levels of service, infrastructure, and infi-astructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maintenance available in other parts of the city with similar topography, land use, and population density. III. AD VALOREM (PROPERTY OWNER) TAX SERVICES me Police Protection, Code Enforcement, and Animal Control Police service, including patrolling, response to calls, and other routine functions, will be provided to the property upon the effective date of the annexation using existing personnel and equipment. Code enforcement and animal control services will also be provided to the property upon the effective date of the annexation. Fire Protection Fire protection (within the limits of existing hydrants) and emergency medical services will be provided to the property upon the effective date of the annexation. The estimated emergency response time in this area is 12 minutes, which is similar to responses for surrounding properties within the city limits. The City of Denton will provide emergency medical services ("EMS"). Roads and Streets Roads and streets, which have been properly platted, duly dedicated, and accepted by the City of Denton and/or Denton County shall be maintained by the City of Denton on the effective date of the annexation. Installation and maintenance of street signs, street lighting and traffic control devices will be maintained by the City of Denton on the effective date of the annexation. 7 IV. D. Parks and Recreation Facilities Parks and recreational facilities in the area to be annexed will begin upon the effective date of the annexation according to the 2000 Parks and Recreation Master Plan. No parks are currently located within the proposed annexation area. Denton neighborhood park facilities are located within reasonably close distance of the proposed annexation area. Residents of the proposed annexation area will be able to use existing City of Denton park and recreation facilities and programs. Library Services Library services will be made available on the effective date of the annexation on the same basis and at the same level as similar library facilities are maintained throughout the city. Building Inspections and Consumer Health Services Building inspections and consumer health services will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maintained throughout the City. Bob services are provided on a "cost recovery" basis, and permit fees offset the costs of services delivered. Incomplete construction must obtain building permits from the Building Inspections Department of the City of Denton. Planning and Development Services Planning and development services will be made available on the effective date of the annexation. The Planning and Development Department currently services this property by way of administration of Chapter 34 of the Code of Ordinances, concerning subdivision and land development regulations. City Council adopted The Denton Plan, the city's 1999-2020 comprehensive plan, by Ordinance 99-439 on December 7, 1999. The Future Land Use Plan addresses both land in the city and its ETJ, and the subject tracts contain Neighborhood Centers and 100 year Floodplain/Environmentally Sensitive Areas. The Denton Plan designates future land uses to manage the quality and quantity of growth by organizing the land use patterns, by matching land use intenSity with available infrastructure, and by preserving floodplains as environmental and open space corridors. The Denton Plan will be used as a basis for final zoning classifications after the properties are annexed. UTILITY (RATEPAYER) SERVICES A. Solid Waste Collection Solid Waste Annexation Service Plan for A03-0002 (Village of Carmel) The City of Denton is the exclusive residential and commercial Solid Waste service provider within Denton's city limits. The City Ordinance requires Solid Waste services for all residences and commercial businesses located in the City. The City of Denton Solid Waste Department is fully funded through the service fees charged, and receives no funding from city tax revenues. Solid waste refuse collection services wilt be provided, to the newly annexed property immediately upon the effective date of the annexation. To request Solid Waste collection services, please telephone the City of Denton Customer Service Department at 940-349-8210 and submit an application to initiate service. To obtain City of Denton Solid Waste schedule, service, and rate information, please telephone the Solid Waste Customer Relations office at 940- 349-8420. Commercial customers are required to complete and submit a Service Agreement to Solid Waste Customer Relations prior to commencing service. Residential Containerized Refuse Service Each residential address will be provided a 96-gallon wheeled refuse cart, which will be serviced one time per week. Residents are required to place their refuse cart(s) at the curb prior to 7:00 a.m. on their collection day. Carts should be placed at the curb for collection no earlier than 6:00 p.m. the evening prior to their collection day. Carts are to be removed from the curb no later than 6:00 a.m. on the day following their collection day. All refuse placed in the cart for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the cart with the lid closed will not be collected. Additional carts may be provided for an additional monthly charge. Smaller carts are available for a lower monthly charge. Weekly brush service is provided. Residential Curbside Recyclin. g Service Curbside recycling services are provided to all residential solid waste service customers. Commercial Refuse Service Each commercial business will be provided with a commercial container(s), which are available in a variety of sizes and frequencies of collection, based on the waste generated. All refuse placed in the container for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the container with the lid closed will not be collected. Refuse placed outside the container is subject to code enforcement regulations, including potential fines. Landfill Service The City of Denton Solid Waste Landfill hours of operation are 7:00 a.m. to 4:00 p.m. Monday through Friday; and 7:00 a.m. to 12:00 p.m. on Saturdays. For information regarding disposal charges, call the Landfill Office at 940-349-7510. VI. B. Water/Wastewater Facilities Maintenance of water and wastewater facilities in the area to be annexed that are not within the service area of another water or wastewater utility will begin upon the effective date of the annexation using existing personnel and equipment. Currently, the majority of thc area to be annexed is not provided with water or sewer service. A small public water system, Swisher Road WSC, serves an area east of the annexation area along Swisher Road. Sewage disposal within the Swisher Road WSC area is by private, on-site drainfield systems. A City of Denton waterline exists adjacent to the annexation area. Additional water and sewer lines are located along the boundaries of the annexation area. The City shall provide a level of water and wastewater service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably contemplated or projected in thc area. Drainage Services Drainage maintenance will be provided to the property upon the effective date of the annexation. The City shall provide a level of drainage services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably contemplated or projected in the area. Electrical Services Denton Municipal Electric is certified by the State and is obligated to provide electric utility service to the annexation area should a request be made by a property owner. Electric utility service will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maintained throughout the city. Denton Municipal Electric is the current electric service provider for this site. OTHER SERVICES Other services that may be provided by the City, such as municipal and general administration will be made available on the effective date of the annexation. The City shall provide a level of services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the City with topography, land use, and population density similar to those reasonably contemplated or projected in the area. CAPITAL IMPROVEMENTS PROGRAM (CIP) No new construction of additional water, sewer, street, and drainage facilities is contemplated within the annexed area as a result of this annexation because the annexed area on the date of annexation will have a level of full municipal services l0 VII. VIII. IX. equal to other areas within the City having similar characteristics of topography, land use, and population density. Thus, no construction of public improvements is contemplated as a result of this annexation that would begin within two and a half (2 ½) years after the effective date of the annexation. The City shall consider construction of other public improvements as the needs dictate on the same basis as such public improvements are considered throughout the City for areas having similar characteristics of topography, land use, and population density. LEVEL OF SERVICES Nothing in this plan shall require the City to provide a uniform level of full municipal services to each area of the City, including the annexed area, if different characteristics of topography, land use, and population density are considered a sufficient basis for providing different levels of service. TERM This service plan shall be valid for a term of ten (10) years. Renewal of the service plan shall be at the discretion of City Council. AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056 (Vernon Supp. 2000). PETITIONER HEREBY CONSENTS TO THE ABOVE SERVICE PLAN Harold Holigan Date: Rita Beck Date: AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 23, 2004 Planning & Development Jon Fortune, Assistam City Managers SUBJECT A03-0003 (Flowers Baking Company) Consider adoption of an ordinance on first reading to volumarily annex 19.51 acres of land generally located north of Pockrus Paige Road, east of Mayhill Road, and south of Edwards Road in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ET J). The Planning and Zoning Commission recommends approval (6-0). (Flowers Baking Company Annexation, A03-0003) BACKGROUND Applicam: Flowers Baking Co. of Demon, LLC Demon, TX The applicam, Flowers Baking Co. of Demon, LLC, has petitioned for the volumary annexation of approximately 19.51 acres of land imo the City. The applicam is not proposing to develop the property at this time. City Council held public hearings for the annexation on February 17, 2004 and March 2, 2004. The Planning and Zoning Commission held a public hearing for the annexation on March 10, 2004. OPTIONS 1. Proceed with annexation as presented. 2. Proceed with annexation with changes. 3. Discontinue annexation process. RECOMMENDATION The Planning and Zoning Commission recommends approval of the annexation petition. (6-0, Holt absem). ESTIMATED PROJECT SCHEDULE The annexation process will be completed by May 4, 2004 (see Attachmem 3). PRIOR ACTION/REVIEW Application Date 1 st CC Public Hearing 2nd CC Public Hearing P&Z Public Hearing 1 st Reading of Ordinance November 24, 2003 February 17, 2004 March 2, 2004 March 10, 2004 March 23, 2004 FISCAL INFORMATION Annexation of this property will increase the assessed value of the city. public improvemems that are the responsibility of the city. It will require no short-term ATTACHMENTS 1. Location Map 2. Public Notification (Property Owner Notification Map and Property Owner Responses) 3. Annexation Schedule 4. Draft Annexation Ordinance Prepared by: Chris D. Hatcher, AICP Planner II Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director, Planning and Development ATTACHMENT 1 Location Map NORTH A03-0003 (Flowers Baking Company) Location Map ATTACHMENT 2 Public Notification NORTH Notification Map Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 February 29, 2004 3 4 Scale: None *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 4 ATTACHMENT 3 ANNEXATION SCHEDULE A03-0003 Flowers Baking Company Tuesday, 2/17/04 Tuesday, 3~2~04 Wednesday, 3/10/04 Tuesday, 3~23~04 Tuesday, 5/4/04 City Council conducts first public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. [] Annexation Study prepared and available for public review. [] Service Plan prepared and available for public review. City Council conducts second public hearin.q. · Public notice must be no less than 10 days and no more than 20 days before public hearing. Planning and Zoning Commission public hearings - make a recommendation to City Council regarding the proposed annexation and the proposed zonin,q. City Council by a four-fifths vote institutes annexation proceedings. First readinq of annexation ordinance. · Action must be more than 20 days after the second public hearing but less than 40 days from the first public hearing. City Council by a four-fifths vote takes final action. Second readinq and adoption of the annexation ordinance. City Council considers approval of zoning request. · Council action must be more than 30 days after publication of ordinance and less than 90 days after council institutes annexation proceedings (adopts ordinance on 1st reading). 5 ATTACHMENT 4 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ANNEXING APPROXIMATELY 19.51 ACRES OF LAND CONTIGUOUS AND ADJACENT TO THE CITY OF DENTON, TEXAS, LOCATED SOUTH OF EDWARDS ROAD, EAST OF MAYHILL ROAD AND NORTH OF POCKRUS PAGE ROAD IN THE SOUTHEASTERN SECTION OF THE CITY OF DENTON EXTRATERRITORIAL JURISDICTION BEING IN THE G. WALKER SURVEY, ABSTRACT NO. 1330, IN THE M.E.P. AND P.R.R. CO. SURVEY ABSTRACT NUMBER 950, AND IN THE D. LAMBERT SURVEY ABSTRACT NUMBER 784, DENTON COUNTY, TEXAS, AND BEING PART OF THE CALLED 27.4367 ACRE TRACT DESCRIBED IN THE DEED TO ANDREW CORPORATION, RECORDED IN VOLUME 912, PAGE 790, DEED RECORDS OF DENTON COUNTY, TEXAS, PART OF THE CALLED 8.773 ACRE TRACT DESCRIBED IN THE DEED TO ANDREW CORPORATION, RECORDED IN VOLUME 912, PAGE 797 OF THE DEED RECORDS OF DENTON COUNTY, TEXAS, PART OF THE CALLED 3.000 ACRE TRACT DESCRIBED IN THE DEED TO ANDREW CORPORATION, RECORDED IN VOLUME 912, PAGE 804, OF THE DEED ROCOR_DS OF DENTON COUNTY, TEXAS, PART OF THE CALLED 79.4992 ACRE TRACT, DESCRIBED IN A DEED TO ANDREW CORPORATION, RECORDED IN VOLUME 912, PAGE 821, DEED RECORDS, DENTON COUNTY, TEXAS, ALL OF THE 3.59 ACRE TRACT OF LAND DESCRIBED IN 96-R0014833 OF THE REAL PROOPERTY RECORDS OF DENTON COUNTY, TEXAS; APPROVING A SERVICE PLAN FOR THE ANNEXED PROPERTY; PROVIDING A SEVER_ABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (A03-0003) WHEREAS, on or about November 24, 2003, the property owner, Flowers Bakery Company of Denton, LLC (the "Petitioner") petitioned for voluntary annexation of approximately 19.51 acres of real property located in the extraterritorial jurisdiction of the City of Denton, Texas, which is more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on or about March 10, 2004, the Planning and Zoning Commission recommended approval of the annexation; and WHEREAS, the City Council finds that the Property contains fewer than 100 separate tracts of land on which one or more residential dwellings are located on each tract; and WHEREAS, this annexation is voluntary and is being made under Subchapter C-1 of Chapter 43 of the Texas Local Government Code; and WHEREAS, the City Council finds that ail required notices were given in the time and manner required by law; and WHEREAS, public hearings before the City Council were held in the Council Chambers on February 17, 2004, and March 2, 2004, (both days being on or after the 20th day but before the 40th day of the date of the institution of the proceedings) to allow all interested persons to state their views and present evidence bearing upon this annexation; and WHEREAS, annexation proceedings were instituted for the Property by the introduction of this ordinance at a meeting of the City Council on March 23, 2004; and WHEREAS, this ordinance has been published in full one time in the official newspaper of the City of Denton on March 28, 2004, after annexation proceedings were instituted and 30 days prior to City Council taking £mal action, as required by City Charter; and WHEREAS, the City Council finds that the annexation will allow the city to ensure development consistent with The Denton Plan; NOW, THEREFORE, THE COUNCIL OF THE CiTY OF DENTON HEREBY ORDAINS' SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Property is hereby annexed to the City of Denton, Texas. SECTION 3. The service plan, a copy of which is attached hereto and made a part hereof by reference as Exhibit "B" (the "Service Plan") which provides for the extension of municipal services to the Property, is approved as part of this ordinance. The Service Plan was made available for public inspection and explanation to the inhabitants of the area being annexed at the above described public hearings. The Service Plan was consented to by the Petitioner. SECTION 4. Should any part of this ordinance be held illegal for any reason, the holding shall not affect the remaining portion of this ordinance and the City Council hereby declares it to be its purpose to annex to the City of Denton all portions of the Property lawfully annexed regardless of whether any other part of the Property is declared not to be lawfully annexed into the City. If any part of the Property is already included within the city limits of the City of Denton or within the limits of any other city, town or village, or is not within the City of Denton's jurisdiction to annex, the same is hereby excluded from the territory annexed as fully as if the excluded area were expressly described in this ordinance. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~ day of ,2004. EULINE BROCK, MAYOR 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~ 3 EXHIBIT "A" All that certain tract or parcel of land lying and being situated in the G. Walker Survey Abstract Number 1330, in the M.E.P. & P.R.R. Co. Survey Abstract Number 950, and in the D. Lambert Survey Abstract Number 784, Denton County, Texas, and being part of the called 27.4367 acre tract described in the deed to Andrew Corporation, recorded in Volume 912, Page 790, Deed Records of Denton County, Texas, part of the called 8.773 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 797 of the Deed Records of Denton County, Texas, part of the called 3.000 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 804 of the Deed Records of Denton County, Texas, part of the called 79.4992 acre tract, described in a deed to Andrew Corporation, recorded in Volume 912, Page 821, Deed Records, Denton County, Texas, all of the 3.59 acres of land described in 96-R0014833 of the Real Property Records of Denton County, Texas, and part of Andrew Addition Phase One as shown by the plat thereof recorded in Cabinet B, Page 12 of the Plat Records of Denton County, Texas and being more particularly described as follows: Beginning at a found railroad spike at the northeast corner of the 27.4367 acre Andrew Tract in Edwards Road; Thence south 02 degrees 40 minutes 55 seconds west with the east line of the 27.4367 acre Andrew Tract a distance of 698.28 feet to a found iron pin at an angle point in the east line of the 27.4367 acre Andrew Tract; Thence south 02 degrees 43 minutes 42 seconds west continuing with the east line of the 27.4367 acre Andrew Tract a distance of 1249.03 feet to a found iron pin at the southeast corner of the 27.4367 acre Andrew Tract on the north line of the 22.967 acre tract to Julia K. Clark recorded under clerks file number 95-R0000602 of the Real Property Records of Denton County, Texas; Thence north 87 degrees 33 minutes 17 seconds west with the south tine of the 27.4367 acre Andrew Tract a distance of 622.20 feet to a found iron pin at the southwest corner of the 27.4367 acre Andrew Tract, the northwest corner of the 22.967 acre Clark Tract, the northeast comer of the 3.59 acre Andrew Tract, and the eastern most southeast corner of Andrew Addition; Thence south 03 degrees 19 minutes 02 seconds west with the east line of the 3.59 acre Andrew Tract and the west line of the 22.967 acre Clark Tract a distance of 472.97 feet to a fence corner post at an angle point in the east line of the 3.59 acre Andrew Tract and the northwest corner of the called 0.942 acre tract described in the deed to Julie K. Clark recorded under clerks file number 99-R0000310 of the Real Property Records of Denton County, Texas; Thence south 03 degrees 01 minutes 21 seconds west continuing with the east line of the 3.59 acre Andrew Tract and the west line of the 0.942 acre Clark Tract a distance of 4 224.75 feet to a steel pipe at the southeast corner of the 3.59 acre Andrew Tract on the north right-of-way tine of Pockrus Page Road; Thence north 87 degrees 56 minutes 40 seconds west with the south line of the 3.59 acre Andrew Tract a distance of 218.61 feet to a fence 'corner post at the southwest corner of the 3.59 acre Andrew Tract and the southeast corner of the tract of land described in the deed to Betty John Robertson recorded in Volume 2423, Page 932 of the Real Property Records of Denton County, Texas; Thence north 01 degrees 47 minutes 13 seconds east with the west line of the 3.59 Andrew Tract and the east line of the Robertson Tract a distance of 683.38 feet to an iron pipe at the northwest corner of the 3.59 acre Andrew Tract and the northeast corner of the called 3.980 acre tract to Kenneth D. Owen recorded in Volume 763, Page 137 of the Deed Records of Denton County, Texas on a south line of Andrew Addition; Thence north 87 degrees 39 minutes 54 seconds west with a south line of Andrew Addition and the north line of the Owen Tract a distance of 363.71 feet to a found iron pin at an inner ell corner of the Andrew Addition; Thence south 03 degrees 03 minutes 00 seconds west with an east line of Andrew Addition and the west line of the Owen Tract a distance of 397.16 feet to a found iron pin; Thence south 39 degrees 11 minutes 57 seconds east with an east line of Andrew Addition and the south line of the Owen Tract a distance of 382.68 feet to a found iron pin at the southern most southeast corner of Andrew Addition and the southern most southwest corner of the Owen Tract on the north right-of-way line of Pockrus Page Road; Thence north 87 degrees 46 minutes 12 seconds west with a south tine of Andrew Addition and the north right-of-way line of Pockrus Page Road a distance of 26.57 feet to a found iron pin at the southern most southwest corner of Andrew Addition on the east right-of-way line of the old M.K.T. Railroad; Thence north 39 degrees 14 minutes 16 seconds west with a west line of Andrew Addition a distance of 412.02 feet to a found iron pin at the beginning of a curve to the right; Thence with the east right-of-way line of the old M.K.T. Railroad along said curve having a delta of 26 degrees 11 minutes 57 seconds, a radius of 2814.79 feet, an arc length of 1287.10 feet (chord of north 26 degrees 10 minutes 09 seconds west a distance of 1275.92 feet) to a found iron pin; Thence north 13 degrees O0 minutes 38 seconds west continuing with the east right-of- way line of the old M.K.T. Railroad and the west line of Andrew Addition a distance of 1221.59 feet to a found iron pin at the beginning of a curve to the left; Thence continuing with the east right-of-way line of the otd M.K.T. Railroad along said curve having a delta of 09 degrees 53 minutes 43 seconds, a radius of 1959.24 feet, an arc length of 338.37 feet (chord of north 17 degrees 58 minutes 31 seconds west a distance of 337.99 feet) to a set iron pin with a yellow plastic cap stamped "Metroptex 1849" on the south right-of-way line of Mayhill Road as described in the Street Right-of- Way Deed to the City of Denton recorded in Volume 4936, Page 1841 of the Real Property Records of Denton County, Texas at the beginning of a curve to the left; Thence with the south right-of-way line of Mayhiil Road along said curve having a delta of 01 degrees 17 minutes 13 seconds, a radius of 540.00 feet, an arc length of 12.13 feet (chord of north 66 degrees 07 minutes 51 seconds east a distance of 12.13 feet) to a set "X" in concrete at the intersection of the south right-of-way line of Mayhill Road and the west right-of-way line of Edwards Road as described in the Street Right-of-Way Deed to the City of Denton recorded in Volume 4936, Page 1841 of the Real Property Records of Denton County, Texas; Thence south 27 degrees 41 minutes 50 seconds east with the west right-of-way line of Edwards Road a distance of 147.27 feet to a set iron pin with a yellow plastic cap stamped "Metroplex 1849" at the beginning of a curve to the left; Thence continuing with the west right-of-way tine of Edwards Road along said curve having a delta of 59 degrees 01 minutes 36 seconds, a radius of 330.00 feet, an arc length of 339.97 feet (chord of south 57 degrees 12 minutes 38 seconds east a distance of 325.13 feet) to a set iron pin with a yellow plastic cap stamped "Metroplex 1849"; Thence south 86 degrees 44 minutes 08 seconds east with the south right-of-way line of Edwards Road a distance of 1797.84 feet to a found iron pin; Thence north 03 degrees 30 minutes 26 seconds east a distance of 35.49 feet to a found railroad spike in Edwards Road on the north tine of the 27.4367 acre Andrew Tract; Thence south 88 degrees 03 minutes 58 seconds east with the north line of the 27.4367 acre Andrew Tract a distance of 172.15 feet to the point of beginning and containing in all 19.51 acres of land. 6 LOCATION MAP 7 EXHIBIT "B" CITY OF DENTON DRAFT ANNEXATION PLAN A03-0003 (Flowers Baking Company) I. AREA ANNEXED THE ANNEXATION AREA IS LOCATED IN THE SOUTHEAST PORTION OF DENTON' S EXTRATERRITORIAL JURISDICTION AND CONTAINS APPROXIMATELY 19.51 ACRES GENERALLY LOCATED NORTH OF POCKRUS PAGE ROAD, SOUTH OF EDWARDS ROAD, AND EAST OF MAYI-IILL ROAD. II. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Government Code, Sections 43.021, 43.065, and 43.065(b)-(o) (Vernon 1999, as amended). Municipal facilities and services to the annexed area described above will be provided or made available on behalf of the City in accordance with the following plan. The City shall provide the annexed tract the levels of servicel infrastructure, and infrastructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maintenance available in other parts of the city with similar topography, land use, and population density. III. AD VALOREM (PROPERTY OWNER) TAX SERVICES Police Protection, Code Enforcement, and Animal Control Police service, including patrolling, response to calls, and other routine functions, will be provided to the property upon the effective date of the annexation using existing personnel and equipment. Code enforcement and animal control services will also be provided to the property upon the effective date of the annexation. Fire Protection Fire protection (within the limits of existing hydrants) and emergency medical services will be provided to the property upon the effective date of the annexation. The estimated emergency response time in this area is 5 minutes, which is similar to responses for surrounding properties within the city limits. The City of Denton will provide emergency medical services ("EMS"). Roads and Streets Roads and streets, which have been properly platted, duly dedicated, and accepted by the City of Denton and/or Denton County shall be maintained by the City of Denton on the effective date of the annexation. Installation and maintenance of street signs, street lighting and traffic control devices will be maintained by the City of Denton on the effective date of the annexation. 8 IV. De Parks and Recreation Facilities Parks and recreational facilities in the area to be annexed will begin upon the effective date of the annexation according to the 2000 Parks and Recreation Master Plan. No parks arc currently located within the proposed annexation area. Denton neighborhood park facilities are located within reasonably close distance of the proposed annexation area. Residents of thc proposed annexation area will be able to use existing City of Denton park and recreation facilities and programs. Library Services Library services will be made available on the effective date of the annexation on the same basis and at the same level as similar library facilities are maintained throughout the city. Building Inspections and Consumer Health Services Building inspections and consumer health services will he made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maintained throughout the City. Both services are provided on a "cost recovery" basis, and permit fees offset the costs of services delivered. Incomplete construction must obtain building permits from the Building Inspections Department of thc City of Denton. Planning and Development Services Planning and development services will be made available on the effective date of the annexation. The Planning and Development Department currently services this property by way of administration of Chapter 34 of the Code of Ordinances, concerning subdivision and land development regulations. City Council adopted The Denton Plan, the city's 1999-2020 comprehensive plan, by Ordinance 99-439 on December 7, 1999. The Future Land Use Plan addresses both land in the city and its ETJ, and the subject tracts contain Neighborhood Centers and 100 year Floodplain/Environmentally Sensitive Areas. The Denton Plan designates future land uses to manage the quality and quantity of growth by organizing the land use patterns, by matching land use intensity with available infrastructure, and by preserving floodplains as environmental and open space corridors. The Denton Plan will be used as a basis for final zoning classifications after the properties are annexed. UTILITY (RATEPAYER) SERVICES A. Solid Waste Collection Solid Waste Annexation Service Plan for A03-0003 (Flowers Baking Co.) The City of Denton is the exclusive residential and commercial Solid Waste service provider within Denton's city limits. The City Ordinance requires Solid Waste services for all residences and commercial businesses located in the City. The City of Denton Solid Waste Department is fully funded through the service 9 fees charged, and receives no funding from city tax revenues. Solid waste refuse collection services will be provided to the newly annexed property immediately upon the effective date of the annexation. To request Solid Waste collection services, please telephone the City of Denton Customer Service Department at 940-349-8210 and submit an application to initiate service. To obtain City of Denton Solid Waste schedule, service, and rate information, please telephone the Solid Waste Customer Relations office at 940- 349-8787. Commercial customers are required to complete and submit a Service Agreement to Solid Waste Customer Relations prior to being provided services. Commercial Refuse Services Each commercial business will be provided with a commercial container(s). Containers are available in a variety of sizes utilizing both front load and roll off service. Collection fi:equencies will be established based on the container size selected and the waste volume generated. The most economical service is obtained by requesting the largest container available for the area, with the least mount of collection services possible. All refuse placed in the container for collection must be bagged to eliminate wind blown debris mad littering. Refuse that is not placed in the container with the lid closed will not be collected. Refuse placed outside the container is subject to code enforcement regulations, including potential fines. Commercial recycling services may be available. Please contact the Solid Waste Recycling Division at 940-349-8054 to discuss the potential for the City to provide commercial recycling services and to obtain recycling rate information. The construction and service requirements provided in the Denton Development Plan apply for all new development. For specific solid waste questions concerning commercial services or construction issues, please contact the Solid Waste Department at 940-349-8069. Landfill Service The City of Denton Solid Waste Landfill hours of operation are 7:00 a.m. to 4:00 p.m. Monday through Friday; and 7:00 a.m. to 12:00 p.m. on Saturdays. For disposal information and rates, please contact the Landfill Office at 940-349- 7510. Water/Wastewater Facilities Maintenance of water and wastewater facilities in the area to be annexed that are not within the service area of another water or wastewater utility will begin upon the effective date of the annexation using existing personnel and equipment. Currently, the majority of the area to be annexed is not provided with water or wastewater service. City of Denton water and sewer lines are located along the boundaries of the annexation area. The City shall provide a level of water and l0 VI, wastewater service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably contemplated or projected in the area. Drainage Services Drainage maintenance will be provided to the property upon the effective date of the annexation. The City shall provide a level of drainage services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the city with topography, land use, and population density similar to those reasonably contemplated or projected in the area. Electrical Services Denton Mtmicipal Electric is certified by the State and is obligated to provide electric utility service to the annexation area should a request be made by a property owner. Electric utility service will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maintained throughout the city. Denton Mtmicipal Electric is the current electric service provider for this site. OTHER SERVICES Other services that may be provided by the City, such as municipal and general administration will be made available on the effective date of the annexation. The City shall provide a level of services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the City with topography, land use, and population density similar to those reasonably contemplated or projected in the area. CAPITAL IMPROVEMENTS PROGRAM (CIP), No new construction of additional water, sewer, street, and drainage facilities is contemplated within the annexed area as a result of this annexation because the annexed area on the date of annexation will have a level of full municipal services equal to other areas within the City having similar characteristics of topography, land use, and population density. Thus, no construction of public improvements is contemplated as a result of this annexation that would begin within two and a half (2 V2) years after the effective date of the annexation. The City shall consider construction of other public improvements as the needs dictate on the same basis as such public improvements are considered throughout the City for areas having similar characteristics of topography, land use, and population density. VIII. I.EVEL OF SERVICES Nothing in this plan shall require the City to provide a uniform level of full municipal services to each area of the City, including the annexed area, if different characteristics of topography, land use, and population density are considered a sufficient basis for providing different levels of service. TERM This service plan shall be valid for a term of ten (10) years. Renewal of the service plan shall be at the discretion of City Council. AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056 (Vernon Supp. 2000). PET1TIONrER HEREBY CONSENTS TO THE ABOVE SERVICE PLAN FLOWERS BAKING COMPANY OF DENTON, LLC BY; NalTle: President Date: 12 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z03-0031: (Northlakes Baptist Church) Hold a public hearing and consider adopting an ordinance amending a Concept Plan for Planned DevelopmeN 115 (PD-115) for approximately 9.1 acres. The property is generally located at the southwest corner of US Highway 77 and Bonnie Brae. A church is proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND ApplicaN: New Hope Missionary Baptist Church CoriNh, TX The purpose of the request is to amend the Concept Plan for Planned Development 115 (PD-115) to allow the developmeN of a church and related facilities. The existing Concept Plan, approved by Ordinance 86-101, does not include churches within the permitted uses. The amendmeN is for 9.1 acres of the original 239.2 acre PD-115 district. Regional CeNer Commercial DowNown (RCC-D) districts surround the subject site along the North, East, and West. The remainder ofPD-115 is located to the South. The subject site is located across the street from the UNT Research Park (former TI PlaN). The site would be accessed from Highway 77 (Elm Street). The proposed amendment to allow institutional uses, such as churches, within this area is in compliance with the policies of the DeNon Plan regarding land uses. No neighborhood meeting was held for this zoning request. Public notification information is provided in Attachment 3. As of this writing, staff has received no responses in favor or opposed 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 (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Approval of a Detailed Plan, preliminary and final plats are required prior to the issuance of any building permits. PRIOR ACTION/REVIEW No prior development applications for the subject site have been submitted. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Photos 5. February 25, 2004 Planning and Zoning Commission Minutes 6. Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting the approval of an amendment to the Concept Plan for approximately 9.1 acres to allow a church and related facilities to be developed. The existing Concept Plan for 229.2 acres, approved on 1986, does not include churches as permitted uses. The approved Concept Plan calls for general retail, scientific and research laboratories, engine and motor repairing, and wholesale office and sample room uses for this location. Existing Condition of Property Property History. February 20, 2002 - The subject property retained the Planned Development 115 (PD-115) zoning status and land use classification by Ordinance 2002- 040. Adjacent zoning and land uses. North: South: East: West: Regional Center Commercial Downtown (RCC-D) Planned Development 115 (PD-115) Regional Center Commercial Downtown (RCC-D) Regional Center Commercial Downtown (RCC-D) Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Center" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity center could contain developments such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high-density housing. According to the Denton Plan, institutional facilities, including churches, are within the scope of Regional Centers and could be strategically used to prevent strip development along the major City thoroughfares and to guide new development. "Institutional includes uses such as churches, government facilities, museums, schools, hospitals, medical clinics, libraries, and military bases. Civic land uses should be used to the maximum extent possible to lead and guide development. The community should invest in civic development that serves as local landmarks. Civic land uses can be organized to provide focus for regional, community, and neighborhood activity centers. Civic land uses can be located to provide shared facilities and most efficient use of land. Civic land uses can be used to prevent strip commercial development along the regional and community highway system." (19. 52) The proposed amendmem to allow churches facilities within this area is in compliance with the policies of the Denton Plan. Developmem Review Analysis Transportation A Traffic Impact Analysis (TIA) would be required for any portion of this property prior to any developmem that could generate more than 1,000 vehicular trips per day or 100 vehicular trips per peak hour. The TIA must demonstrate that there is adequate traffic related infrastructure to support the proposed developmem uses. Right-of-way dedication for Highway 77 (Elm Street) and Bonnie Brae will be required prior to developmem. Access The proposed developmem will be required to take access from Highway 77 (Elm Street). Road Capacity The Demon Mobility Plan idemifies Highway 77 (Elm Street) as a primary major arterial. This road is designed to be a six (6) lane divided street without parking, providing six (6) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 2'7,900 trips per day. Highway 7'7 is currently constructed with four (4) lanes without parking. The DeNon Mobility Plan idemifies Bonnie Brae as a secondary major arterial. This road is designed to be a four (4) lane undivided street without parking, providing four (4) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 14,900 trips per day. Bonnie Brae is currently constructed with two (2) lanes without parking. Development Review If this site were to develop according to the permitted uses per the approved 1986 Concept Plan, multiple buildings along Highway 77 and Bonnie Brae could be constructed requiring multiple driveways and having the potential of stripping out the street frontages. In addition, churches are allowed in all zoning districts. An approved Detailed Plan is required prior to the approval of any development in this location. STAFF RECOMMENDATION Staff recommends approval of Z03-0031 based on the following findings: 1. The proposed zoning change is in compliance with the policies of the DeNon Plan. 2. Churches are allowed in all zoning districts. 4 ATTACHMENT 2 Maps NORTH LOCATION AND ZONING MAP FUTURE LAND USE MAP ATTACHMENT 3 Public Notification Notification Map NORTH LOOP 288 SITE Scale: None Newspaper Notification Date: February 15, 2004 Percent of land within 200' in opposition: 0% 200' Legal Notices* sent via Certified Mail: 6 500' Courtesy Notices* sent via 1st Class Mail: 5 · In Favor: 0 · Opposed: 0 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Site Photographs Condenscl: ~ 6 7 9 ~2 13 I4 15 17 19 2O 22 24 2 8 9 10 12 3 14 5 16 20 21 22 2,3 24 25 Page 53 COMMISSIONER MULROY; Next on thc Agenda, 5C, amc~dment to a Coucept Plan for plann~l development. I will open the pubNc hearing. Ms. Vicra w~ll pmsem. MS, ViEt%~k: 7he applicant is proposiag an amendment to the Concept Plan of Planned Development 115 to allow churches z~s pern}i~xed uses within flint PO Currently fl~c ~9~6 approved Concept Nan albums a of uses fi~a~ go Eom retail, research in scientific labs. engine rcpa]r shop, wholesale offices, howc*,'cr, churches are not listed as a permitt~t use. Thc si~c is surroundmt by RCRD zoning al!ten'icl through tlie -- along tt~c north -- north, cast and west and the remainder o[ the PD-i i5 is locatRi tO thc south. According to thc Denton Plait h~stlt-utional uses such as chm'ches are allox~vd withhi the rcgioI~al con,er arca. The staff finds the propos~ development. llie proposed use conlpadblo wi[h the fupm'e ]ai~d use designation of thc Denton Plan and it is also importam ~o mention iha~ churdies are allowcd *~dthiu all zoning dislric~s, in this case eD4th, they didn't list the use, th~zrcfoi"c, they have to amend the Concept Plam Slaff rccomincnds approval of the zoning COMMISSIONER MULROY Thank you~ Ms. Vic~'a. Is the applhcant here? MS. VIERA: I believe so. COMMISSIONER MUEROY; would you be available to answer any questions or would you like to present? MR. AtI.EN: t'm Mike Allen, i09 'West Main, ~wishillc, Texas. We're the Civil Engineer for the ch~n'ch site and we're available fbi any questions you COMMISSIONER MUt. ROY: Commissioners, any questions? If not, thank you, sk. ~N'~ere's no requests to speak. I'm ?ing to close the public hearing and entertain a motion or discussion. Mr. Roy~ COMMISSIONER ROY: I lllOVe approval. COMMISSIONER MULROY: Mr. Strange, COMMISSIONER S'iI~.NGE: second. COMMISSIONER MULROY: Motion by Mr. Roy, second by Mr. Strange for approval. I[ there is no d[scusslon~ please:, vote. Motion casies %0. 2 3 4 5 6 7 8 9 i© 1i 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Attachment 5 Page 5 5 Page 5 6 ] COMMISSIONER MULROY The next ire]ii on thc 2 Agenda, SD, rczoning of approximately fear acres, I v, ili 3 ope'n the public honing. IRE'. Fuller will present. 4 MR. ~'I,LER: Good evening. Thank you, The 5 applicant is requesting to rezone approximately four acres ~ ~}ro/ll RCCN to RCCD. Ill order to sell t]mnu{acrtn~d homes 7 and Irailcrs. the Development Code d~s not catcgorica]iy 8 list manufactm'~ homes and trailer sales as a 9 however, it does list auto and Rv sales, 10 Within the cun'ent RCCN zoning, ante and Iv 11 sales are not allowed, fi~ereforc, manufacparcd homes and 12 trailers would nol bo allow~t, which is why the applicant 13 is requesting thc zoning to RCCD, 14 Staff mailed five legal notices to prop~ty 15 owners within 200 f~t and has not r~dved anh' responses 16 in opposition ~o this request, This request is in complianc~ with tho Demon Plan and with thc ndghbo~ 18 zoning dis~ricis. i9 Smh~ is recommending approval. Thank 20 COMMISSIONER MULROY: ~hank you. Is the 2I applicant hem to answer ~ny questions or is thcr~ any 22 questions of stall first? Okay, Oo ahead. Como on down, 23 sin 24 Mit. CHANE5: My name is Seer C]:sn%' and 25 Nm here to ansh~cr any questions you may PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 53 - Paise 56 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE 86-101 TO ALLOW CHURCHES AND RELATED FACILITIES AS PERMITTED USES FOR AN APPROXIMATE 9.07 ACRES PORTION OF PLANNED DEVELOPMENT 115 (PD-115) ZONING DISTRICT AND LAND USE CLASSIFICATION; SAID PROPERTY IS GENERALLY LOCATED ON THE SOUTH SIDE OF US HIGHWAY 77 NEAR BONNIE BRAE AND IN THE NATHAN WADE SURVEY, ABSTRACT NO. 1407 IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMErM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0031) WHEREAS, on May 20, 1986, by Ordinance 86-101 the City Council approved a concept plan for Planned Development 115 (PD- 115) zoning district, as more particularly described therein; and WHEREAS, New Hope Mission Baptist Church, has applied for an amendment to the concept plan for Planned Development 115 (PD-115) for 9.07 acres of land more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property") said amended concept plan being on file in the offices of the City's Planning Department, and a copy of which is attached hereto and made a part hereof as Exhibit "B" (the "Amended Concept Plan"); and WHEREAS, on February 25, 2004, the Planning and Zoning Commission concluded a public hearing as required by law, and recommend approval of the Amended Concept Plan; and WHEREAS, the City Council finds that the Amended Concept Plan is consistent with the Comprehensive Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble to this ordinance are incorporated herein by reference. SECTION 2. Ordinance No. 86-101, providing approval of Planned development 115 (PD- 115) and the original concept plan, is amended by the approval of the Amended Concept Plan for the Property. SECTION 3. The provisions of this ordinance as they apply to the Property and the Amended Concept Plan shall govern and control over any conflicting provisions of Ordinance 86- 101, but all the provisions of Ordinance 86-101 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 and to this Property. Page 1 of 2 SECTION 4. A copy of this ordinance shall be attached to Ordinance No. 86-101 showing the Amended Concept Plan. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. 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 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY~ CITY ATTORNEY Page 2 of 2 EXHBIT A WHEREAS WE NEW HOPE MISIONARY BAPTIST CHURCH IS THE OWNER OF A 9.076 ACRE TRACH OF LAND LYING AND BEING SITUATED 1N THE NATHAN WADE SURVEY ABSTRACT 1407, CITY OF DENTON, DENTON COUNTY, TEXAS AND BEING A PART OF A TRACT AS DESCRIBED IN A DEED FROM T.I. 239 B JOINT VENTURE TO NEW HOPE MISSIONARY BAPTIST CHURCH, RCORDED 1N VOLUME 4624, PAGE 1301, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS SAVE AND EXCEPT THAT PORTION DESCRIBED IN A DEED FROM NEW HOPE MISSIONARY BAPTIST CHURCH TO THE STATE OF TEXAS, RECORDED iN 4736, PAGE 1707, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AN IRON ROD FOUND AT A FENCE CORNER POST AT THE SOUTHWEST CORNER OF SAID NEW HOPE MISSIONARY BAPTIST CHURCH TRACT AND THE SOUTHEAST CORNER OF A TRACT DEEDED TO HILLWOOD LAND/DENTON LTD., RECORDED IN VOLUME 2470, PAGE 690, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AND ALSO BEING IN THE NORTH LINE OF A TRACT DEEDED TO BRAEWOOD PARTNERS LTD., RECORDED IN VOLUME 4521, PAGE 345, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE NORTH 00 DEGREES 22 MINUTES 35 SECONDS EAST WITH THE WEST LINE OF SAID NEW HOPE MISSIONARY BAPTIST CHURCH TRACT AND THE EAST LINE OF SAID HILLWOOD LAND/DENTON LTD. TRACT, A DISTANCE OF 736.44 FEET TO A 5/8 INCH IRON ROD WITH AN ALUMINUM CAP FOUND IN THE SOUTH RIGHT OF WAY OF U.S. HIGHWAY 77, AT THE SOUTHWEST CORNER OF A PARCEL 9 PART 1 AS DESCRIBED 1N A DEED TO THE STATE OF TEXAS, RECORDED IN VOLUME 4736, PAGE 1707, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 58 DEGREES 51 MINUTES 04 SECONDS EAST WITH THE SOUTH RIGHT OF WAY OF U.S. HIGHWAY 77, A DISTANCE OF 26.47 FEET TO A 5/8 INCH IRON ROD WITH AN ALUMINUM CAP FOUND FOR A CORNER; THENCE SOUTH 70 DEGREES 33 MINUTES 57 SECONDS EAST WITH THE SOUTH RIGHT OF WAY OF U.S. HIGHWAY 77, A DISTANCE OF 99.94 FEET TO A 5/8 INCH IRON ROD WITH ALUMINUM CAP FOUND FOR CORNER; THENCE SOUTH 58 DEGREES 58 MINUTES 13 SECONDS EAST WITH THE SOUTH RIGHT OF WAY OF U.S. HIGHWAY 77, A DISTANCE OF 565.66 FEET TO A 1/2 INCH IRON PIN SET; THENCE SOUTH 46 DEGREES 04 MINUTES 39 SECONDS EAST, A DISTANCE OF 77.48 FEET TO A 1/2 INCH IRON PIN SET; THENCE SOUTH 25 DEGREES 08 MINUTES 47 SECONDS EAST, A DISTANCE OF 348.93 FEET TO A FOUND CONCRETE MONUMENT; THENCE SOUTH 04 DEGREES 56 MINUTES 20 SECONDS EAST, A DISTANCE OF 24.97 FEET TO A FOUND CONCRETE MONUMENT; THENCE SOUTH 89 DEGREES 45 MINUTES 35 SECONDS WEST WiTH THE SOUTH LINE OF SAID NEW HOPE MISSIONARY BAPTIST CHURCH TRACT AND THE NORTH LINE OF SAID BRAEWOOD PARTNERS LTD. TRACT, A DISTANCE OF 812.69 FEET TO THE POINT OF BEGINNING AND CONTAINING IN ALL 9.076 ACRES OF LAND. l / / i B ii!qtq:x :~ AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z03-0036: (Denton Regional Medical Center Phase 3) Hold a public hearing and consider adoption of an ordinance rezoning approximately 21.5 acres from a Regional Cemer Residemial 1 (RCR-1) zoning district to a Regional Cemer Commercial Neighborhood (RCC-N) zoning district. The property is generally located between Colorado Boulevard and Rails to Trails Reservation approximately 825 feet east of Brinker Road. Medical offices are proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicam: Epic Developmem Nashville, TN The applicant is requesting the rezoning of 21.5 acres to RCC-N to develop professional services and offices. Curremly, medical offices have populated the Mayhill-Colorado corridor creating a "medical district" in conjunction with the DeNon Regional Medical Center. Under the existing RCR-1 district, professional services and offices are permitted but limited to 5,000 square feet of gross floor area per lot. The proposed RCC-N zoning designation would allow an increase of the building area up to 10,000 square feet. The subject site is surrounded along the South, East, and West by RCC-N zoning districts. A RCR-1 district is located to the North. The Rails to Trails Reserve runs along the north property line separating the subject site from the RCR-1 district. The Denton Plan identifies professional offices as one among other urban activities typically found within Regional Centers. The typical office types within a Regional Cemer are characterized as large office buildings or mixed-use buildings. The proposed zoning change is in compliance with the Denton Plan. No neighborhood meeting was held for this zoning request. Public notification information is provided in Attachmem 3. As of this writing, staff has received one (1) response in favor and one (1) response in opposition from property owners within 200 feet of the subject site. Curremly, 3.48% of the land within 200 feet of the subject property is in opposition to the request. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to the issuance of any building permits. PRIOR ACTION/REVIEW No prior development applications for the subject site have been submitted. ATTACHMENTS 1. Staff'Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Photo 5. Applicant's Response 6. February 25, 2004 Planning and Zoning Commission Minutes 7. Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting the zoning change of 21.5 acres from RCR-1 zoning district to RCC-N zoning district to develop medical offices. Existing Condition of Property Property History. February 20, 2002 - Ordinance 2002-040 placed the subject property in a Regional Cemer Residemial 1 (RCR-1) zoning district. Adjacem zoning and land uses. North: South: East: West: Regional Cemer Residemial 1 (RCR-1) (vacam land) Regional Cemer Commercial Neighborhood (RCC-N) (medical offices) Regional Cemer Commercial Neighborhood (RCC-N) (medical offices and vacam land) Regional Cemer Commercial Neighborhood (RCC-N) (medical offices and vacam land) Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Center" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity cemer could comain developmems such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high-density housing. There are differem levels at which regional cemers provide services. Small individual providers (as is the case for the existing medical offices along the Mayhill-Colorado corridor) serve the near by areas. However, the combination of all the providers creates a district that provides services to the entire City and surrounding areas. The Denton Plan identifies professional offices as one among other urban activities typically found within Regional Centers. The Denton Plan characterizes the typical office types within a Regional Cemer as large office buildings or mixed-use buildings (page 44). The proposed zoning change is in compliance with DeNon Plan. Development Review Analysis Transportation A Traffic Impact Analysis (TIA) would be required prior to any final platting of any portion of this property to demonstrate that there is adequate traffic related infrastructure to support the proposed developmem uses. Right-of-way dedication for Colorado Boulevard or any proposed public streets will be required prior to developmem. Access The proposed developmem will be required to take access from Colorado Boulevard. Road Capacity The DeNon Mobility Plan idemifies Colorado Boulevard as a secondary major arterial. This road is designed to be a four (4) lane divided street without parking, providing four (4) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 19,100 trips per day. Colorado Boulevard is currently constructed with four (4) lanes without parking. Staff amicipates that there is adequate capacity to handle the calculated trips that could be generated by the proposed development Development Review Under the existing RCR-1 district, professional services and offices are permitted but limited to 5,000 square feet of gross floor area per lot. The proposed RCC-N zoning designation would allow the increase of the building area up to 10,000 square feet. The Regional Cemer zoning family (RCR-1 thorough RCC-D) is designed to provide an imensity gradiem for non-residemial uses, being the RCC-D the more imense. The proposed RCC-N is the mid point between the RCR-1 and RCC-D and provides a natural progression between the existing RCC-D district (DeNon Regional Medical Cemer site along 1-35 East) and the existing RCR-1 zoning district along the North property line of the subject site. The differences between the existing RCR-1 and the proposed RCC-N zoning designation are summarized in the following table: Multi-family Permitted Limitation 6: Hotels Not Permitted Permitted Bed & Breakfast Limitation 8 Limitation 9 Retail Sales & Services Limitation 17 Limitation 13 Theater less than 1,000 seats Not Permitted Permitted Restaurant or Private Club Limitation 11 Permitted Drive-through Facility Not Permitted Permitted 4 Professional Services & Offices Limitation 15 Limitation 14 Quick Vehicle Servicing Not Permitted Permitted Outdoor Recreation Specific Use Permit Not Permitted Indoor Recreation Not Permitted Permitted Major Event Entertainment Not Permitted Specific Use Permit Land Use RCR-1 RCC-N Commercial Parking Lot Not Permitted Permitted Administrative or Research Facility Specific Use Permit Limitation 14 Broadcasting of Production Studio Specific Use Permit Permitted Bakeries Not Permitted Limitation 21 Veterinary Clinics Specific Use Permit Limitation 14 Gas Wells Specific Use Limitation 27 Permit/Limitation 27 Business/Trade School Not Permitted Limitation 14 High School Specific Use Permit Permitted Colleges Not Permitted Permitted Hospital Not Permitted Permitted Medical Centers Specific Use Permit Permitted Mortuaries Not Permitted Permitted Minimum Lot Width 50 feet None Minimum Lot Depth 80 feet None Minimum Front Setback 10 feet None Minimum Side Yard 6 feet None Minimum Side Yard Adjacent to a Street 10 feet None Minimum Rear Yard 10 feet plus 1 foot for None each foot of building height above 30 feet Minimum Yard Abutting a Single-family 30 feet plus 1 foot for 30 feet plus 1 foot for Use or District each foot of building each foot of building height above 30 feet height above 30 feet Minimum Residential Unit Size 600 square feet 500 square feet Maximum FAR 0.50 1.5 Maximum Density 30 units 80 units Maximum Lot Coverage 55% 85% Minimum Landscape Area 45% 15% Maximum Building Height 40 feet 65 feet The proposed developmem will be subject to the site design standards per Subchapter 13 of the Development Code regarding street trees, buffering and screening, access, parking and vehicular circulation, light and glare performance requiremems, and building material and orientation. STAFF RECOMMENDATION Staff recommends approval ofZ03-0036 based on the following findings: 1. The proposed zoning change is in compliance with the policies of the Demon Plan. 2. The proposed RCC-N zoning district provides a natural transition between the existing RCC-D zoning district along 1-35 East and the RCR-1 zoning district along the north property line of the subject site. 3. RCC-N zoning districts surround the site along the South, East, and West. ATTACHMENT 2 Maps NORTH LOCATION AND ZONING MAP FUTURE LAND USE MAP ATTACHMENT 3 Public Notification Notification Map NORTH SIT~E In 'avor ,× Scale: None Newspaper Notification Date: February 13, 2004 December 6, 2003 Percent of land within 200' in opposition: 3.48% 200' Legal Notices* sent via Certified Mail: 4 500' Courtesy Notices* sent via 1st Class Mail: · In Favor: 1 · Opposed: 1 · Neutral: 0 10 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name and In favor/neutral/ Comments Address /opposed* F.J. Chaney, Favor Would prefer offices and 3319 Colorado Blvd. retail to high-density apartments. Robert Donnelly, Opposed Development in the area is 2600 Mayhill already created extreme drainage and traffic problems and there are no ordinances in place to protect surrounding property owners. ATTACHMENT 4 Site Photograph 10 ATTACHMENT 5 Applicant's Letter A~'tachmen~ 5 January 27,2004 City of Denton City Halt West 221 Nc, dh Elm Denton, Texas 76201 RE: W&A# 03028;; DENTON REGIONAL MEDICAL CENTER PHASE 3 ZONING CHANGE REQUEST JUSTIFICATION, DENTON, TEXAS To Whom I~ May Concern: The subiect property is currently Lan,developed and zoned RCR-I. The proposed zoning for the subiect property is RCC-N which the adjacent properties to the south and west are currently zoned. The properly is bounded on the nodh and east by the Rails for Trails right-.of-way which separates it from other undeveloped properties to the. nodh that are current!y zoned RCR. 1. The developed properties in, the RCC-N zoning that are immediate!y adjacent to the subject property are medico! office uses which are the proposed use for this properly. The subject prope~y is also within a few hundred feet of the Denton Regional Medico! Center which would further supped the development of it for medicai uses Due to the physical separation from the other properties zoned RCR-I by the Rails for Trails and the fact that the properly does not have any physical separations from the RCC-N zoned properties, the re-zoning of this prope~y to RCC-N would be appropriate and Wou!d not negatively impact any adjacent property owners. The subiect property currently does not have public access or provisions for public water and sanitary sewer ~acitJt:ies, There Js currently a planned Main Street Mixed Use Collector roadway proposed in an accompanying Preliminary Plat that includes ~his and the surrounding property that will connect Colorado Boulevard and Br'inker Road. This proposed roadway will cross the subiect properly as, shown oa the Zoning App!ication exhibit and provide the needed public access. There is also a proposed 8" water main along the proposed roadway that wit! connect to an existing 8" water main along Colorado Boulevard and to an existing I2" water main along Bdnker Road. This proposed 8" water main will provide the necessary domestic, fire protection and irrigation water service to the subject property, Two sanitaw sewer mains are proposed to be extended from the existing sanitary sewer mains along Colorado Boul,evard to 11 January 27, 2004 Page 2 provide sanitary sewer service to the property. One sanitary sewer will serve the northern portion of the property and the ether witl serve the south and east portion of the property, A box culvert roadway crossing of the existing creek adjacent to the subject properly is proposed with the roadway improvements. The pre!iminary plat provides for public utility easements on both sides and paralle! to the right-of-way of the proposed roadway for extension of electric, gas, telephone utilities to serve the subject properly, Very truly yours, Philip Graham Associate 12 1 2 3 4 5 6 7 8 9 10 1 2 3 4 5 6 7 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 9 i0 i 2 13 I4 15 16 17 lg !9 20 21 22 23 24 25 Page 65 Page 67 COMMISSIONER MULROY: el. ir ron2alnlng lleltl 5F, rezoning of approximately 21.5 acres. I'll open the public hog, ring. Ms. Viera will present. MS. VIERA: The applicant is r~lueSdt~g the mzoning of 21.5 acres from RCII-~ to i~CCN, cn~rrcntly, the site is sun'oundmt by RCCN DiStrict along the west, east and south sides of flxe subje~t propcrlhn And by RC~¢-~ to the north, The Rails to Trails ~ms along the north properly tise separating the t<CRq fi'om, fl~e subject site~ The proposed medical offices and professional offices that 0~e applicant is proposing ~o develop in that site wilt add to the developing m~tical district along Colorado, Mayhili corridor. The proposed RCCN r>istrict will se~w'e as an transition betw~n the cxistiug RCCD District along ~-35 where the hospital is currently located, and the ~CR-~ zoning district to thc noah. Staff finds fl~c proposed RC CN zoning designation in compliance with the Denton Plan and is recommending approval of the zoning change. COMMISSIONER MUI ROY: Thank you, Ms. Viera. Is thc applicant here to answer questions? Ms. v[E~c~,: ~ Believe so. I would like to add, too, llmt currently we have 3.48 percent of opposition within 200 f~t ofitho proper~y. COMMISSIONER MULROY: okay. Thank you. Page 66 COMMISSIONER ROY; what was that number again, please? MS, VIEi~: 3.48. COMMiSSiONER ROY: u'hank yeti. MS~ V[ERA: This iS tho map wh~r¢ th~ opposition is shown. COMMiSSiONER MULROY: x'hank yon, Ms. V/cra. Yes, sir. If you will step to the microphone and i~m'oduce yourself. MR~ LANE: Mr. Chairman, and mcmbm-s of the Planning and Zoning Commission. t'm Ulys Lane with Wicr and Associates. I'm here tonight representing the applicant, Epic Development. I address at 4300 Beltway Place, Suite 130 in ~'lington, Texas. We're here tonight to consid~' changing lhe zoning at d~is silo fi'om existing residential ~gional center to regional center conm~crcial neighborhood. The intea! is to create the opportunity to build primarily medical orifice building shes ~hat are larger ~han 5,000 square ~%~, which is allowed, I believe in fl~e current residential regional center zoning. On ~he exhlbir here, Fm going ~o ~ry to move it aronnd. I don't know if this is going to work or nor. I bet you by Civ Council m~:tlng we have a digital prest:n~afion ~o put on your machine there. 1 2 3 4 5 6 7 8 9 10 II 12 13 14 6 17 18 19 20 2t 22 23 24 25 The property that we're here tonight to reT<me or ask your consideration of rezoning is this tract of land here. It is part of a prior tract o.f land that was owned by Mr. Jesky, a long time resident of the City, And it was severed by the railroad track years ago, from the parent track and really doesn't have access to it. Once the rails -- the railroad alignment has been established, which is now the Rails -- Trails to Rails'? MS. VIgIL, X: Rai],S tO Trails. MR. LANE: Rails to Trail, okay. All right. I'm sorry. It creates an obvious barrier and separation between this property and the remainder. The property was acquired by a land slot with Mr. Jesky and the hospital and -- which, resulted in a better shape and use of properties for both property owners. %e main hospital facility is located over here and there am several stand alo~,e doctors, buildings along Colorado. And we currently are looking at a new facility, wo~ld 10c an outpatient center right here. And a Dr. Kristopherson is adding a site hem. Basically, we're running out of locations for stand alone doctors facilities, medical office facilities. We currently have a preliminary plat into the City staff for review that would propose putting an interior road. I don't know what the name of the road 1 2 3 4 5 7 9 10 1 12 13 14 15 16 17 I8 19 20 21 22 23 24 25 Page 68 will be, We're calling it proposed expansion road at this Once this roadway is installecl and should we get ~he zoning change, this property ca~ be added to thc romaindm~ of the properly betw,,~n Brinkcr Road and Colorado Boulevard and create ~ opporl7m~igJ to create about 11 blocks in here for stand alone offices. That's basically our presentation. I think the configurations of properties and the situation h~ the ar~ would justify this zoning change and we*d be glad to answer any questions you might have. COMMISSIONER MULROY: TImnk yon, sir. Any questions? ~v'fl'. Roy. COMMISSIONER ROY: ArG yeti saying you own or control the propcr~ where Gat new proposed road comes h~ and b~s Colorado? M!'{. 1,ANE: Thc hospital does own that propcrb,. It would be ~- fi:ere are a ~w lots along here that have been sold elf. This tel This loL This lol. Thls lot and th~s lot lmve b~n seld off.' The ho'~pital still owns these two lots and flint lot. Asd fi~is let would be replatlml to create thc oppo~'unily to have the road aligned w/th the existing road coming into Colorado and then the hosphal owns ail of the remaining property in here. PLANNING AND ZONING COMIVIISSION FEBRUARY 25, 2004 Page 65 - Page 68' 1 2 3 4 6 7 9 ll I2 13 14 15 16 7 Ig 19 20 21 22 23 24 25 1 2 3 4 5 6 7 9 !0 i1 12 13 14 16 17 18 19 20 21 22 23 25 COMMISSIONER ROY: Thank you, COMMISSIONEP, MULROY: Any further questions? If not, I have a question. The -- on -- is there any othm' -- I have a question of staff. Is fl~crc Page 69 Page 71 Mi;[. LANE: cocommercial. WS pretty itltcnse conm~ercial. Is Lan-y here? He would probably know that. COMMISSIONER MUI,ROY: it was unilbrm zoning any other zoning designation available that would not take the landscaped area to such a low pcrceutage because we're going fi'om 45 percentage down lo 15 percentage? MS. VIERA: The RC family goes from RCR I to RCCD being tiao ReCk0 thc most intense. The RCCN is tho midpoint of our ~- where we left: behind residential uses and we're getting to ll!orc intense COllUtlorcial offices. RCCN is the midpoint at this point of time. O~hcrwise, the square footage of the buildings will be Iinlit~ to only 5,000 square f~t. So the RCCN allows them to go up to 10,000 square fret, COMMISSIONER MULROY: But wc have nO designation that would give them larger buff(ting pads would r~tuJm m~cntion of a greater landscaped ar~ out there? Because we're really ~- we're moving quite a bit here on your lot coverage fi'om 55 to 85 percent. And landscape area fi'om 45 down to 15 percent. So we have nothing on thc books -- now, is d~ere a way that fllcy could stay with the RCC-i and come in for au SU? to have larger buildings? Ms. v~K4: The RCR-2 will limit dae pad 5 6 7 8 9 10 1 12 13 14 15 16 i7 18 19 20 21 22 23 24 25 Page 70 prior to the zoning change? MP., LANE: YeS. I think all of this was CC-l, as I recall. COMMiSSiONER MULROY: okay. Then if I may ask a question of Mr. Reicbhart. Larry, is there a specific reason that this parcel was designated RCC-1 rather than RCCN? tract'? MR. LANE: This tract hem, the sul\iect COMM[SS!ONER MUILROY: Yes, sir. MR. L.aSa: ~ have some k:~owledge of that if Larry -- MR, REICIII!ART: GO ahead, I don't have any knowledge of it so -- MR. L^Nt1: This properD' was owned by Mr. Jesky. And he had intent to do ~ and had a potential buyer fur apartments and that's why he -- he lobbied for that zoning and I tMnk ]~e was successI\d in obtaining it. But I do want you to recognize the configurations h~rc. COMMISSIONER MULROY: pardon me'? Mi{. LANE: I'd tike to recognize the Page 72 site to 10,000 square feet and it will provide a maximum lot coverage of 75 percent and a minimal landscaping of' 25. That is a ten percent increase. COMMISSIONER MULROY: SO what was that designation again? MS. VIER,i: RCR-2. COMMISSIONER MULROY: RCR-2. Mr. Lane, would the RCR-2 satisfy your requirements in being able to put 10,000 square fbot buildings there but allow for rc, tention of greater [ar~dscape and open space? MP,, LANE: NO, Sir. W¢~v¢ already got RCCN alt around this tract. And tl~e zoning has been in place since the City rezoned all of this property out -- you 1 2 3 4 5 6 7 8 9 10 11 12 13 configm'ations of the property and it really -- this property didn't have access. It's only point of access was a little bit of the tip right down hcn'c at Colorado Boukvard. This is a -- was a raih'oad right-of-way. And they didn't have a crossing across it. Okay. And once it's converted to Rails to Trails, then I believe it's regulated as park land under the Stale. And il's very difficult it> get a crossing across ii. It's really a segregated propt='ty even though it was owued in a larger tract. COMM[SStONER MI,JI,P, OY: well, let me ask a question of staff again. On the lots il:at have bozn carved out for the doctors office buildings the~ oil the know, you recreated your zoning categories, I believe, was t4 it two years ago. And we had a more intense zoning then. 15 And it's been down zoned by your restructuring of your zoning ordinance in your City. And no, sir, we would -- COMMISSIONER MULROY: If yOU'[i bear with mc. Lsz~'s not get apples and oranges. The existing RCu~ ~ zouing you say surrounding it is ~'NO MR~ LANE: Yes, Sir. COMMISStONhR MULROY: BU~ there must have been a reason ~br this piece ~o be RCC-L Now, be~¥re the universal zoning change in the Cky, what was ail of this property zoned? 16 17 18 19 20 21 22 23 24 25 road fl:enrage, what am those zoned? MR, RE[CflHART: RCCN righl now. COMMISSIONER M~. LROY: okay. And, you know, my comment would be when you drive by and look at those, they've retained as many of fl~e trc~s and tI~e natm'al sun'oundings iba~ they can. They're very attractive and rci%ctlvc of what our Code was t~ying lb do. MR. I,ANE: f holicv¢ that you'll have a similar uso b~ausc it will bo sold to similar users to build stand alone medical oi~]co sites. That's thc intent of this process. COMMISSIONER MU[,ROY: okay. Thank you, PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 69 - Page 72 5 6 8 9 1 12 3 14 15 17 t8 19 20 21 22 24 25 1 2 3 4 5 6 7 8 9 10 i1 12 13 14 19 20 2I 22 23 Page 73 Mr. Lane. Any further questions of the applicant? Welt, if I haven't closed thc pubNc hearing, I -- we don't have any requests for speaking, We'll close the public hearing. Yes, sir. If you will come down to the front, please. And normally we would ~ the nomml requirement we'd ask yon to turn a card in, but wc'l! ~- MR. DONNELLY: i think I have a card up there. I checked it on the sign-in, COMMISSIONER MULROY: It's hard for me to MR. DONNELLY: ! apologize. COMMISSIONER MULROY: If yOU'!i give us yotlr flame. MR. DO~ELLY: My nmne is Robert Donnelly, and I own, I believe, this tract and t oppose any change basically to keep any construction happening. We have a -- I have a fairly severn drainage problmn now. And Pm not sum until the CiD' changes some of eeir zoning requests or thdr zoning ordinances - Pm ah~eady mklng water from tiffs development and I have dealt wffh tl2e City and so i'm afraid that if they develop this Omi I w[I1 get quire a bit more. COMMISSIONER MULROY: Appr~datc yom- connnems. MR. DONNELLY; Any questions? Okay. Page 74 COMMISSIONER MULROY: Thank you, sir. COMMISSIONER POWELL: QlmStJon. COMMISSIONER MULROY: Mr. Powelh COMMISSIONER POWELL: S~r, Are you suggesting dmt thc drainage would come across G~ Rails to Trails on to your MR, DONPqE[,LY: YGS, s~r. The southern and t assume it ~s this is a creek. There's a very nice bridge fight here off of Mayhil[ and it is at my soufl:ern boundary. So, yes, I donk know if he's done drainage stud{es, but Fm pretty sure that the water is going to come to that crcvk and flood that crmk COMMISSIONER POWELL: 71rank you, COMMISSIONER MULROY: Al1 right. I am going to ask the applicant if you want to rebut? MR, LANE: YeS, sir. This ske, there ~s a cr~& gdng through the property. And i don't have mpo~n'aphy here w/ih me tonight, but there's a culvert crossing hcrc~ The crmk m~mders, comes tl2'ough, We're going to put a new cnNmx crossing in down here. It meanders down and gems througj.~ and comes out and it does -- it goes on the edge of the Andrews Corporation u'act ~ don't know if that's yot~ tract, sir, COMMISSIONER MULROY: Wc'r¢ not havh~g a discussion. 1 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 16 17 18 I9 2O 21 22 23 24 25 2 3 4 5 7 8 9 10 11 i2 ~3 14 15 16 17 18 I9 20 2I 22 22 24 25 Page MF,. I,ANE: okay. And this property h~re actually drains toward us and &sins through us. We're not draining on them. They're draining on us. And we arc developing a local regional detention f2cility in locations where there are not/r~s for the benefit of mitigating flood -- COMMISSIONER MULROY: And for thc rezord, we're a little bit astray with tim drainage issues, not really the zoning issue. MR. LANE: Yes, sir. COMMISSIONER MULROY: Wc*ve got some latitude but -- and I -- ff you gentlemen would like to Rtrthcr discuss this outs/dc the mc~ting~ I would encourage that. MR. LANE: Thank you. COMMISSIONER MULROY: okay. Thank you, I'm closing the public hinting, Weql entertain discussion or a 1notion, h~'. Jdmson. COMMISSIONER JOHNSON: well, I'll move that we approve fi~e rczoning of this one and I would like to make a comment that this is a case where we have an office btfitding zonh:g that allows t 5 percent landscaping whm'~s we had a warehouse that requital 30 percent e~:rlier. So I think d:at the 15 percent lmm is -- maybe should be a little bit higher as yon had proposed a Page minute ago or were fishing around for, But I think [hat this zoning flint's being requestml fs consistent with what else is in the arma. And I don*t think that we have any way really., any basis for not doing thfs~ COMMiSSiONER MULROY: [ hav~ a nlot~on by Mr. Johnsom COMMISSIONER ST~XNGE: second. COMMISSIONER MULROY: A second by Ma-, Strange. Any fm'lhcr discussion? If not, please yom, Motion carries %0. Are there any futm'e Agenda Items fi'om my fellow Con2nissioners? If not tl~e mmtin~ is adjourn~l, PLANNING A~ ZONING COMMISSION FEBRUARY 25, 2004 Page 73 - Page ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM A REGIONAL CENTER RESIDENTIAL 1 (RCR-1) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO A REGIONAL CENTER COMMERCIAL NEIGHBORHOOD (RCC-N) ZONING DISTRICT CLASSII~ICATION AND USE DESIGNATION FOR APPROXIMATELY 21.5 ACRES OF LAND GENERALLY LOCATED BETWEEN COLORADO BOULEVARD AND RAILS TO TRAILS RESERVATION APPROXIMATELY 825 FEET EAST OF BRINKER ROAD AND LEGALLY DESCRIBED AS TRACT 9 OF THE D. HOUGH SURVEY, PROVIDING FOR A PENALTY IN THE MAX1MUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROV/DING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0036) WHEREAS, Epic Development Inc. initiated a change in zoning for approximately 21.5 acres of land more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property") from a Regional Center Residential 1 (RCR-1) zoning district classification and use designation to Regional Center Commercial Neighborhood (RCC-N) zoning district classification and use designation; and WHEREAS, on February 25, 2004, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change in zoning is consistent with the Comprehensive Plan and Development Code; NOW, THEREFORE, THE COUNCIl, OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The zoning for the Property is hereby changed from a Regional Center Residential 1 (RCR-I) zoning district classification and use designation to Regional Center Commercial Neighborhood (RCC-N) zoning district classification and use designation. Notwithstanding the above real property description, the Property being rezoned includes all property to the centertine of all adjacent street rights-of-way. SECTION 3. The City's official zoning map is amended to show the change in zoning district classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. Page 1 of 2 SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be freed a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 of 2 EXHIBIT A LEGAL DESCRIPTION 21.5 ACRE EPIC DEVELOPMENT, INC. TRACT BEING 21.495 acres (936,336 square feet) of land located in the D. HOUGH SURVEY, Abstract No. 646, Denton County, Texas, being a part of that certain tract of land described in deed to Epic Development, Inc., recorded in Volume 5158, Page 1186 of the Real. Property Records of Denton County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at the North corner of said Epic Development, Inc. tract, lying in the South right-of-way line of Rails for Trails Dedication (old M.K. & T. Railroad right- of-way), relinquished by Volume "O", Page 67 of the Deed Records of Denton County, Texas; THENCE along the North boundary line of said Epic Development, Inc. tract and the South right-of-way line of said Rails for Trails as follows: S 63°17'59"E, 105.54 feet to a point; S 64°03'55"E, 1322.44 feet to a point at the beginning of a Curve to the Right; SOUTHEASTERLY along said Curve to the Right, having a radius of 1880.11 feet, a central angle of 17029'33'' and a chord bearing S 56°31'50"E, 571.77 feet to a point at the most Easterly corner of said 21.5 acre Epic Development, inc. tract; THENCE S 88°44'19"E along the South boundary line of said Epic Development, Inc. tract, 1326.85 feet to a point at the most Northerly Northwest corner of Lot 5, Block 1, Denton Regional Medical Center Addition Phase 2, an addition to the City of Denton, Denton County, Texas, as shown by the plat recorded in Cabinet "Q", Page 305-307 of the Real Property Records of Denton County, Texas; THENCE S 88°41'06"W along the South boundary line of said Epic Development, Inc. tract and the North boundary line of Lots 4 & 5, of said Block 1, Denton Regional Medical Center Addition Phase 2, 460.96 feet to a point at the most Westerly South corner of said Epic Development, Inc. tract, being the most Northerly West corner of said Lot 4, Block 1, Denton Regional Medical Center Addition Phase 2 and the most Easterly corner of Lot 3, said Block 1, Denton Regional Medical Center Addition Phase 2; Page 1 of 2 W&A No. 03028 August 13, 2003 THENCE N 01°34'07"E along the West boundary line of said Epic Development, Inc. tract, being the East boundary lines of said Lot 3, Block 1, Denton Regionaf Medical Center Addition Phase 2 and another tract of land described in deed to Epic Development, Inc., recorded in Volume 3245, Page 699 of the Real Property Records of Denton County, Texas, 981.27 feet to the PLACE OF BEGINNING, containing 21.495 acres of land. Page 2 of 2 W&A No. 03028 August 13, 2003 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z03-0037 (Kozura-Mohan) Hold a public hearing and consider adoption of an ordinance regarding a Specific Use Permit for a gas well site. The approximately 3 acre property is in a Neighborhood Residemial 3 (NR-3) zoning district and is generally located approximately 900 feet west of Teasley Lane, on the west side of Helm Lane. Gas well drilling and production is proposed. The Planning and Zoning Commission recommends approval (6-0). BACKGROUND Applicam: Coleman & Associates Land Surveying DeNon, TX The applicam has submitted a request for a Specific Use Permit (SUP) proposing one gas well on the property. The Developmem Code allows gas wells in the NR-3 zoning district only with approval of a Specific Use Permit. There are three residential structures within 350' to 380' feet of the proposed wellhead. Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has received two written responses in favor, one neutral, and none 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 (6-0; Commissioner Mulroy was absem). ESTIMATED PROJECT SCHEDULE The approval of a Gas Well Developmem Plat will be required prior to issuance of any permits. PRIOR ACTION/REVIEW The following is a chronology ofZ03-0037: February 11, 2004, Planning & Zoning Commission approved (6-0) a request regarding a Specific Use Permit for a gas well site. Ordinance 2002-040, adopted February 2002, placed the subject property in the Neighborhood Residential 3 (NR-3) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Agricultural. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photos 5. Gas Well Exhibit 6. February 25, 2004, Planning & Zoning Commission Meeting Minutes 7. Draft Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting a Specific Use Permit for construction and operation of one gas well located in a Neighborhood Residemial 3 (NR-3) zoning district, in addition, a Specific Use Permit is needed due to the proximity of three residential structures to the wellhead. Existing Condition of Property The subject property is primarily vacam, and is not in a flood plain. Adjacem Zoning North: Neighborhood Residemial 3 (NR-3) zoning district South: Neighborhood Residemial 2 (NR-2) zoning district East: Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning district West: Neighborhood Residemial 2 (NR-2) zoning district Three residential structures are located within 500 feet of the proposed gas well site. Comprehensive Plan Analysis The site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. New development in this district should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service, and commercial land uses is allowed. The DeNon Plan defines compatibility as: "The characteristics of differem uses or activities or design which allow them to be located near or adjacem to each other in harmony ... Compatibility does not mean "the same as." Rather, compatibility refers to the sensitivity of developmem proposals in maimaining the character of existing developmem" (p. 188). Development Review Analysis Transportation Trip Generation. After construction of the well site, no significant vehicle trips will be generated. A Traffic impact Analysis will not be required. Access and Connectivity The proposed truck route would be from a gravel driveway off of Teasley Lane. Staff has not yet approved the proposed truck route. Development Code / Zoning Analysis The applicam has proposed the construction of a gas well site. The Neighborhood Residential 3 zoning district allows gas well sites only 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: 1. 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; During the expected 30 year life expectancy the normal operation of the gas well should not diminish or impair property values. However, adjacent properties will be impacted during initial construction, which could last as long as 45 days and times when the well is reworked. 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 establishment of this specific use will impede the normal and orderly development 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 shall 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 shall meet the requirements of the City of Denton. 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 shall be required. With the exception of drilling and fracing the well, no noise, odor or fumes will be produced. Subchapter 22 of the Development Code states the required nuisance prevention measures for gas wells. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and Proposed lighting shall not affect neighboring properties. Subchapter 22 of the Development Code addresses the issue of directional lighting. 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. Use of landscaping as a screen may be a condition on the specific use permit, as the adjoining property is zoned for single-family development. Another option could include painting storage tanks neutral colors to blend in with the area. 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. Staff Findings 1. The proposed use is compatible with the intent of The Denton Plan and the Denton Development Code. The applicant has met all requirements of a Specific Use Permit. 2. The establishment of a gas well site at this location will not have a detrimental impact on the surrounding area except during construction. 3. Screening of the gas well facility would increase its compatibility with the single-family residences. Staff Recommendation Based on the above findings, staff recommends approval of the Specific Use Permit with the following conditions: 1. All residences within 500 feet are notified twenty-four hours prior to fracing of the wellhead. 2. Install a blockade style fence constructed on steel post around the gas well site to create a visually appealing screen for the site. ATTACHMENT 2 Location/Zoning Map NR-3 SITE Approximate hR-3 ~ Location of Wellhead Land Use Map Approximate Location of Wellhead NORTH Note: Shaded parcels currently zoned NR-2, which allow gas wells by right. ATTACHMENT 3 Notification Map NORTH Scale: None Public Notification Date: January 18, 2004 200' Legal Notices* sent via Certified Mail: 13 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 2 · Neutral: 1 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Z~ ATTACHMENT 4 Notifcation n Attachment 5 I I LJ'e~', 1 ~ ~ '"C5' Iq W ~zo~& I%0'YD, HA],.I~T N~L~..f? \ I [ f ! f / ,' u',~'. Sll,.I,c~E FA~ULY KOZITRA-MOHON LEASE $.U.P. EXHIBIT IN THE C. POLLALIER SURVEY A-1006 CITY OF DENTON DENTIN COUNTY, TEXAS DRAWN: CF JOB #: 867 CHECKED: MGD DATE: %14-04 REVJSE'-D; N/A SCALE: 1" -~ 200' Coleman & Associates Land SUrveying P.O. BOX686 . DENTON, TEXAS 76202 pH(940)565.8215,FAX (940)565-9800, WWW.COLEMANSURVEYING,COM (~ 2003 COLEMAN & ASSOC. SURVEYING N q. 0 50 200 Attachment 6 1 3 4 5 6 7 9 10 11 12 13 14 15 16 17 I8 19 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 49 COMMISSIONER POWELL: If I'm not mistaken, we're going to SA. We are going to continue a public hearing and consider making a recommendation to City Council regarding a Specific Use Gas Permit for a gas well site. MR. FULLER: Thank you and good evening. The applicant is requesting a Specific Use Permit for a gas well site within a Neighborhood Residential 3 Zoning Disu'iet. Gas wells are only allowed within this zoning district only with an approval of a Specific Use Permit. If I eau direct your attention to the screen, and I'll use the curser as a guide, there are three residential dwellings within 350 to 380 feet of the proposed site. Itl your P & Z backup, you'll notice that those were in -- two of those properties were in opposition to the proposed sue. The property to tile west was in favor. The Development Code states that any residential unit within 250 feet to 500 feet of the well head requires a Specific Use Permit if it does not have consent of file property owner. And I'll clarify that point in just a tnoment. Slat mailed out 13 legal notices to property owners within 200 feet of the property. We initially received one respons~ in favor and one response that was neueal to the request. Thr~ responses were 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 51 COMMISSIONER POWF. LL: Any questions of staff here? Seeing no questions, this is a public hearing, and I have one person who has asked to speak that I am aware of in support. Mr. Williamson, is he here? Then we'll show Mr. Dale Williarnson in support, 888 El - looks like Cifito Street, Denton. I'm sure I have that - I'm sure I'm not pronouncing that right. If there are no objections, i will close the public heating and open it for discussion or a motion. Ms. HoIt. COMMISSIONER HOLT: I just want to make sure there is no opposition. MR. FULLER: AS of this time staff has received no written opposition to this request. The thr~ letters in opposition that we did receive have been withdrawn. COMMISSIONER HOLT: Thank you. COMMISSIONF_.~ ROY: And you have written confirmation of that.'? MR. FULLER: Ye,g, sir, we do. You've received two of them prior to this meeting. The third one we received as the meeting was convening. I do have copies if you would like them, of the third letter. COMMISSIONER ROY: Thank you. COMMISSIONER POWELL: Thank you. Page 50 received that were opposed to the rcquest~ Since that time staff has received two requests to withdraw their opposition. If you'll look in your backup, you'll notice again, the two properties adjacent to the southern portion of the site were opposed. They are now itl favor. The portion on the northwest corner was opposed. It is now in favor. We just received that prior to being able to update this map. So opposition is now zero percent. There is no opposition and those parties are in favor of this re'zoning. Initially, this sue request was not only for the gas well site, but'for those residzmtial dwellings that were within 500 feet of the site. Now that they are -- now that the applicant has received written consent, we are now only consideriug this for tile Specific Use Permit for tile site. The proposed use is compatible with tile Denton Plan. It;~"in Compliance with the Development Code, and the sue has met file criteria for sue approval. Staff recommends approval of the Specific Use Permit with the foIlowing conditions, that the applicant notify any residents within 500 feet of the well head 24 hours before fracking. And the second requirement that tile applicant install a blockade style fence around the well head. Thank you. 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 · Page 52 Mr. Johnson. COMMISSIONER JOHNSON: I'll move approval. COMMISSIONER POWELL: WC have a motion for approval. Do we have a second somewhere? COMMISSIONER STRANGE: Second. COMMISSIONER POWELL: Any further discussion? Motion to approve and a second. COMMISSIONER JOHNSON: I forgot to say with the conditions as recormuended by staff. COMMISSIONER POWELL: Thank you, Mr. Johnson. Is that okay with the seconder? COMMISSIONER STKANGE: Yes. COMMISSIONER POWELL: Then, Pll call. for a vote,- Motion passes 6-0. I will call for a break until ten of 8:00. This last item might get a bit lengthy. (Break taken.) PLANNING & ZON1NG COMMISSION FEBRUARY 11, 2004 Page 49 - Page 52 Attachment 7 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A GAS WELL DEVELOPMENT ON APPROXIMATELY 3 ACRES OF LAND GENERALLY LOCATED ADJACENT TO THE WEST SIDE OF HELM LANE APPROXIMATELY 900 FEET WEST OF TEASLEY LANE, WITHIN A NEIGHBORHOOD RESIDENTIAL 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z03-0037) WHEREAS, Mid Continent Geological, INC. has applied for a specific use permit for a gas well development within a Neighborhood Residential 3 0XTR-3) zoning district classification and use designation on approximately 3 acres of land generally located adjacent to the west side of Helm Lane approximately 900 feet west of Teasley Lane, as more particularly described in Exhibit "A' attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on February 11, 2004, the PlarLrdng and Zoning Commission recommended approval of a Specific Use Permit for a gas well development; and WI-IE~AS, 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 gas well development 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 vicinigr, and The establishment of the gas well development will not impede the normal and orderly development and improvement of surrounding property; and Adequate utilities, access roads, drainage, and other necessar7 supporting facilities have been or will be provided; and The design, location, and arrangement of all driveways and parklng spaces provides for tho safe and convenient movement of vehicular and pedestrian raffle 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 pwperties; and There is sufficient landscaping and screening to ensure harmony and compatibility Attachment 7 with adjacent property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. A specific use permit to allow a gas well development within aNeighborhood Residential 3 (NR-3) zoning district classification and use designation on the Propm'ty is hereby approved, subject to the following conditions: 1. All residences within 500 feet of thc well site will be noticed 24 hours prior to thc fi.acing of the wellhead. 2. A blockade style fence wilI be installed on steel post around the well site to create a visually appealing screen for the well site. SECTION 3. Notwithstanding the description of the Property, the property being rezoned includes all property to the eenterline of all adjacent street rights-of-way. SECTION 4. The City's official zoning map is mended to show tho change in zoning district classification. SECTION 5. Any person violating any provision of this ordinance shaH, 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, with/n ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2004. ATr~ST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: PAGE 2 Illl IIIII II I I IIIIII II I I I ii i i Attachment 7 Exhibit A Coleman & Assoc. Land Surveying , . P.O. Box 686 DcnIen, ,Texas 76202 Phone (940)56&8215 Fax SUP Des~.riptiou FIELD NOTES to all that certain tract of land situated in the C. Poullalier Survey Abstract Number 1006, City of Denton, Denton County, Texas and being part of the called 20 acre tract described in the deed from Frank L Helm to Mary Frances Mohon r~orded in Volume 381, Page 188 of the D~d Records of Denton County, Texas and being part of thc tract of land described in the dc~xl from Nealy IL Mohon to Mary Frances Mohon, recorded under Clerk's File Number 97-R0073427 of the Real Property Records of Denton Couuty, Texas; thc subjcct tract being moro particularly described as follows: BBGINN]I~O for thc Southeast comer of the tract being deacn'bed herein at the Southeast comer Of the said Mohon tract in Helm Street; THBNCB North 88 Dcgrccs 31 Minutes 54. Scconds West with tho South linc of tho Mohon tract a distance of31i0 fe~; THENCB North O0 Dcgrccs 26 Minutes 04 Seconds East across tho Mohon tract, passing tho North linc thcrcof and continuing across the 20 acre tract, in all, a total distanc~ of 350 feet; THBNCB South 88 Degrees 31 Minutes 54 Sc~x)nds East across tt~ 20 acre tract a distance of 350 feet to the East line thereof in Holm Street; THENCB South 00 Degrees 26 Minutes 04 Seconds We.st along Helm Street with the East line of the 20 acm tract passing the Southeast comcr thereof; and continuing, in all, a total di _~___-_cc of 350 feet to tho PLACE OF BEGINNING and enclosing 3 aercs of land, more or less. AGENDA INFORMATION SHEET AGENDA DATE: March 23, 2004 DEPARTMENT: CM/DCM/ACM: Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT- Z04-0001 (Explore USA) Hold a public hearing and consider adoption of an ordinance regarding the rezoning of approximately 4 acres from a Regional Center Commercial Neighborhood (RCC-N) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. The property is located approximately 900 feet south of Pockrus Page Road, on the northeast side of Interstate- 35 East. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Scott Chaney Piano, TX The applicant is requesting to rezone the property for sales of manufactured homes and trailers. The Development Code does not categorically list the sales of manufactured homes and trailers as a use, however the Development Code does list "auto and RV sales" as a possible use. The applicant submitted a request for an interpretation of the Development Code (Attachment 4) to determine if the sales of manufactured homes and trailers would be allowed on a site within the Regional Center Commercial Neighborhood (RCC-N) zoning district. Staff has determined (Attachment 5) that manufactured home sales and trailer sales are akin to "auto and RV sales." The Regional Center Commercial Neighborhood (RCC-N) zoning district does not permit auto and RV sales, therefore the sale of manufactured homes and trailers are also not permitted. The applicant is proposing to rezone the property to the Regional Center Commercial Downtown (RCC-D) zoning designation, which does permit "auto and RV sales" and therefore would allow the sale of manufactured homes and trailers. Section 35.23.1 of the Development Code provides definitions for the following terms: Automobile and RV Sales: A structure and/or lot dedicated to the retail sale of new or used motor vehicles. Trailer: A non-motorized vehicle, pulled by an automobile or truck designed or maintained for use as a temporary dwelling or sleeping place for travel or recreation purposes exclusively. Dwelling, HUD-Code Manufactured Home: A structure constructed on or after January 15, 1976, according to the rules of the United States Department of Housing and Urban Development, transportable in one or more sections, which, in the traveling mode, is eight (8) body feet or more in width, or forty (40) body feet or more in length, or, when erected on site, is three hundred twenty (320) or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning and electrical systems. The term does not include a recreational vehicle as that term is defined by 25 C.F.R. Section 3282.8(g). Public notification and property owner responses are provided in Attachment 3. writing, staff has received no written responses from property owners within 200 subject site. As of this feet of the OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is platted. The applicant will be required to obtain a building permit for the office prior to the issuance of a certificate of occupancy. PRIOR ACTION/REVIEW The following is a chronology of Z04-0001: A letter of interpretation of the Development Code was submitted by the applicant, to Staff, on December 26, 2003 (Attachment 4). Staff provided a response to the request for an interpretation of the Development Code to the applicant on December 29, 2003 (Attachment 5). February 25, 2004, Planning & Zoning Commission recommends approval of a request to rezone approximately 4 acres from a Regional Center Commercial Neighborhood (RCC-N) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. Ordinance 2002-040, adopted February 2002, placed the subject property in the Regional Center Commercial Neighborhood (RCC-N) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned GR(c) #72 (General Retail with Conditions - case number 72) by ordinance 99-171. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Request for Letter of Interpretation of the Development Code 5. Response to Request for Letter of Interpretation of the Development Code 6. Site Photo 7. February 25, 2004, Planning & Zoning Commission Meeting Minutes 8. Draft Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting to rezone approximately 4 acres from a Regional Center Commercial Neighborhood (RCC-N) zoning district to a Regional Cemer Commercial Dowmown (RCC-D) zoning district. The applicant is proposing manufactured homes and trailers sales. The Development Code does not list the sales of manufactured homes and trailers as a use, however the Development Code does list "auto and RV sales" as a possible use. Staff has determined that manufactured home sales and trailer sales are similar to "auto and RV sales." The RCC-N zoning district does not permit the proposed use, however the use is allowed in the RCC-D zoning district. Existing Condition of Property The subject property is primarily vacam, with some single-family residences and is not in a flood plain. Adjacem Zoning North: Regional C emer Residemial 1 (RCR-1) zoning district South: Planned Developmem 12 (PD-12) zoning district East: Regional Cemer Commercial Dowmown (RCC-D) zoning district West: Regional Cemer Commercial Dowmown (RCC-D) zoning district Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Centers" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity cemer could comain developmems such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high-density housing. The proposed commercial uses are compatible with the Regional Mixed Use Cemers uses as stated within the Denton Plan. The request to rezone the subject property is compatible with the Future Land Use Plan (Regional Mixed Use Cemers) and with the surrounding zoning designations. The proposed zoning change is in compliance with the DeNon Plan. Development Review Analysis Transportation Access to the property is limited to the 1-35 service road. Public Infrastructure The city tile maps show an 8" water main along the north side of 1-35E service road along the property fromage. The city tile maps show a 2 l"& 24" sewer mains crossing the property and an 8" sewer main along the Rails to Trails right-of-way east of the previously mentioned sewer mains. Development Code / Zoning Analysis An excerpt from the letter staff provided to the applicant in response to the request for an interpretation of the Development Code is provided in Attachment 5 and includes a brief summary of the property and its corresponding zoning designation: "In 2002 the property in question was zoned RCC-N (Regional Center Commercial Neighborhood) and not RCC-D (Regional Center Commercial - Downtown) since it had a lesser original zoning on it than the surrounding property. According to the zoning ordinance in place before February 2002, the zoning on this parcel was GR(c) #72 (General Retail with Conditions - case number 72) by ordinance 99-171 adopted by the City Council May 18, 1999. Before May, 1999 the parcel was zoned Agricultural. By the nature of the rezoning in February 2002, the GR(c) was replaced entirely by the RCC-N district." "When it was rezoned, the parcel had conditional zoning that expired with the 2002 rezoning. Under the previous zoning of this parcel in May, 1999 the sale of manufactured homes and trailers would not have been allowed. The current zoning RCC-N does not allow the sale of manufactured homes and trailers." The Regional Center Commercial Neighborhood (RCC-N) and the Regional Center Commercial Downtown (RCC-D) zoning districts permit a broad array of uses. The RCC- D zoning district generally contains fewer limitations than the RCC-N zoning district. The chart below illustrates the difference between the two zoning districts. Limitations for each use are explained below the chart. Single Family Dwellings Attached Single Family Dwellings Dwellings Above Businesses Live/Work Units N P P P P Duplexes N N Community Homes for the Disabled Group Homes P SUP SUP Multi-Family Dwellings L(6) L(6) Hotels P P Professional Services and Offices L(14) P Retail Sales and Services L(13) P Auto and RV Sales N P Quick Vehicle Servicing Vehicle Repair N P Restaurant or Private Club P P Drive-throuqh Facility Broadcasting of Production Studio P Bakeries L(21 ) P Light Manufacturing N L(23) Veterinary Clinics L(14) P Limitations: L(6): Permitted only on second story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(13): Uses are limited to no more than 55,000 square feet of gross floor area per lot. L(14): Uses are limited to no more than 10,000 square feet of gross floor area. L(21): Bakery and bottling areas not to exceed 2,500 square feet. Sales on premises of products produced required in this zone. L(23): Light manufacturing of products sold on site permitted, area of manufacture not to exceed 5,000 square feet. The limitations listed above regulate the specifics of each use allowed within the zoning district. Any proposed development on this site is required to be in compliance with the site design standards of the Development Code. An approved site plan for the proposed development will be required prior to the issuance of any building permit. Staff Findings The proposed zoning change is compatible with neighboring zoning designations, and is in compliance with the intent of the Denton Plan. Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change. ATTACHMENT 2 Location/Zoning Map NORTH Land Use Map ATTACHMENT 3 Notification Map NORTH catio, otits of 200~ ification Scale: None Public Notification Date: February 10, 2004 200' Legal Notices* sent via Certified Mail: 5 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 0 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Attachment 4 3GOTT W. UHANE¥ INVESTMEN. TS December 26, 2003 Ms. Kelly Carpenter, AiCP Director of Planning & Development Services City of Denton .. City Hail West 221 North Elm Denton, Texas 76201. Re: Letter of Intent Dear Ms. Carpenter: My name is Scott Chancy and I'm the CEO of ExploreUSA. We are a Texas company with interest in opening a sales center at 4001 South 1-35 East where the present Oak Creek Homes is currently located. . Our intention is to operate there as a sales center'for"Dweiling, HUD'Code Manufactured Home" and "Trailer" sales as defined in Subchapter 23 under the Development Code definitions. -. We respectfully submi{ this letter as a request for approval to use the premises .as stated above. CEO " 5501 MAHOGANY RUN COURT · PLANO, TEXAS 75093 *~SWCRANEY~ATrBI.COM '" HOME: 97Z-769-8844 * FAX: 972-964-3027 * MOBILE: ?_$4-616-O000 Attachment 5 221 N. Elm * Denton, TX 76201 * Telephone (940) 349-8350 * FAX (940) 349-7707 Planning Department December 29, 2003 SENT VIA EMAIL Mr. Sco~ Chaney ExploreUSA 5501 Mahogany Run Court Piano, Texas 75093 Dear Mr. Chaney: We have carefully reviewed our files, the Denton Plan and the Denton Development Code in response to your request for an interpretation of the Code that would allow sales of mobile homes, manufactured homes and trailers on a site a 4001 1-35, zoned RCC-N. The following statement constitutes our findings and interpretation: In 2002 the property in question was zoned RCC-N (Regional Center Commercial - Neighborhood) and not RCC-D (Regional Center Commercial - Downtown) since it had a lesser original zoning on it than the surrounding property. According to the zoning ordinance in place before February 2002, the zoning on this parcel was GR(c) #72 (General Retail with Conditions - case number 72) by ordinance 99-171 adopted by the City Council May 18, 1999. Before May, 1999 the parcel was zoned Agricultural. By the nature of the rezoning in February 2002, the GR(c) was replaced entirely by the RCC-N district. When it was rezoned, the parcel had conditional zoning that expired with the 2002 rezoning. Under the previous zoning of this parcel in May, 1999 the sale of manufactured homes and trailers would not have been allowed. The current zoning RCC-N does not allow the sale of manufactured homes and trailers. The Denton Plan identifies several activity centers including one south of the intersection of Loop 288 and I 35. The plan states "Commercial development occurs only in activity centers that are appropriate to its service and trade area and that are compatible with adjacent existing and proposed land uses and with existing and programmed public services and facilities." (Page 46) The zoning category intended to implement regional centers, as set forth in the Denton Plan, is "Regional Mixed Use Centers". A regional mixed-use center (RCC-N and RCC-D) should include shopping, services, recreation employment and institutional facilities supported by and serving an entire region. In the RCC-D category of the Development Code, "auto and RV sales" is listed as a permitted use but sales of manufactured homes and trailers is not listed as permitted. We think that uses such as manufactured home sales and trailer sales are akin to "auto and RV sales" and are therefore allowed in the RCC-D. If you decide to apply for rezoning to the RCC-D, we will be happy to accept your application and to work with you through the process. In summary, the subchapter 35.11.3 Special Exception does not apply to the property in question because the conditional zoning ended when it was rezoned in February 2002. You can apply for rezoning the R¢¢-D category which we think would allow the sale of manufactured homes and trailers. Sincerely, Kelly Carpenter, AICP Director Planning and Development ATTACHMENT 6 Zoning Notification Sign Attachment 7 5 6 7 8 9 10 I1 14 15 16 17 18 2O 21 22 23 24 25 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 53 COMMISSIONER MULROY: Next on the Agenda, 5C, amendment to a Concept Plan for planned development. I will open the public hearing. Ms. Viera will present. MS. vxev,~: The applicant is proposing an amendment to the Concept Plan of Planned Development 115 to allow churches as permitted uses within that Currently the I986 approved Concept Plan allows a variety of uses thatgo from'retail, research in scientific labs, ' engine repair shop, wholesale offices, however, churches arc not listed as a pem~itted use. The site is surrounded by RCRD zoning district through the -- along the north -- north, east and west and the remainder of the eD-t ts is located to the south. According to the Denton Plan institutional uses such as churches are allowed within the regional center area. The staff finds the proposed development, the proposed use compatible with the future land use designation of the Denton Plan and it is also important to mention that churches am allowed within all zoning districts. In this case ~'~)-t ts, they didn't list the use, therefore, they have to amend the Concept Plan. Staff reconunends approval of the zoning change. COMMISSION'ER MI.~LRO¥: Thank you, Ms. Viera. Is the applicant here? Page 54 MS. WERe: I believe so. COMMISSIONER MULROY: would you be available to answer any questions or would you like to present? MR. ALUEN: l'm Mike Allen, 109 West Main, Lewisville, Texas. We're the Civil Engineer for the church site and we're available for any questions you ~ght have. COMMISSIONER MULROY: commissioners, any questions? If not, thank you, sir. There's no requests to speak~ I'm going to dose the public hearing and entertain'a motion or discussion. Mr. Roy. ' ' ~OMMISSIONER ROY: I move approval. COMMISSIONER MULROY: Mr. Strange. COMMISSIONER STRANGE: second. COMMISSIONER MULRO¥:. Motion by Mr. Roy, second by Mr. Strange for approvai. If there is no discussion, please, vote. Motion carries 7-0. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 55 Page 56 COMMISSIONER MULROY: The next item on the Agenda, fiD, rezoning of approximately four acres. I will open the public hearing. Mr. Fuller will present. MR. FULLER: Good evening. Thank you. The applicant is requesting to rezone approximately four acres from ~ccN to eccD. In order to sell manufactured homes and trailers, the Development Code does not categorically list manut'actured homes and trail.er sales as a use, however, it does llst auto and ~v sales. Within the current scc~ zoning, auto and sales are not allowed, therefore, manufactured homes and trailers would not be allowed, which is why the applicant is reqt~esting the zoning to Staff nm/led five legal notices to property owners within 200 feet and has not received any responses in opposition to this request. This request is in compliance with th~ Denton Plan and with the neighboring zoning districts. Staff is recon-m~ending apprgval. Thank you. COMMISSIONER MULROY: Thank you.. Is the applicant here to answer any questions or is there any questions of staff first? Okay. Go ahead. Come on down, sir. MR. CHANEY: My name is Scott Chancy and I'm here to answer any quegtlon~ you may PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 53 - Page 56 Attachment 7 I 2 3 4 5 6 7 8 9 L0 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7L 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 57 COMMISSIONER MULROY: okay. Thallk yoll, sir. Commissioners, any questions? Well, that was easy. All right. We have no requests to speak. And PiI close the public hearing and entertain discussion or a motion. Mr. Johnson. COMMISSIONER JOHNSON: I'll move approval. COMMISSIONER MI. ILROY: Mr. Roy. COMMISSIONER ROY': second. COMMISSIONER MULROY: I have a motion by Mr. Johnson, a second by Mr. Roy for approval. If there is no discussion, please vote. Motion carries 7-0. Page 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 5 6 7 8 9 10 1I 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 59 PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 57 - Page 60 Page 60 COMMISSIONER MULROY: WO will move to ]tern SE, rezoning of approximately 7.9 acres. I'll open thc public hearing. Mr. Fuller will present. MR. FULLER: Good evening. Thank you. The applicant is requesting to rezone approximately eight acres from acax-I to ac'cD. The applicant proposes medical center and retail and sales uses. Based on the current I~CR-i zoning, medical centers require su~' approval in order to be permitted within the zoning district. Within the I~CCD zoning designation, medical centers arc allowed and retail sales and services are allowed with no limitations. "' Staff has mailed four legal notices to propc-rty owners within 200 feet of the property. We've received no responses in opposition. The proposed uses are compatible with the future land use plan and do comply with the adjacent zonings. Staff recommends approval of the request. Thank you. COMMISSIONER MULROY: An.y questio:~s of Mr. Fuller? If not, is the applicant here to answer questions? If you will please state your ~ame. MS. MITCHELL: I'd like the same vote as the one right before us. COMMISSIONER POWELL: we're sure you would. MS. MITCHELL: Yeah, that's right. Good ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM REGIONAL CENTER COMMERCIAL NEIGHBORHOOD (RCC-N) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO REGIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 4 ACRES OF LAND LOCATED APPROXIMATELY 900 FEET EAST OF POCKRUS PAGE ROAD, ON THE NORTH SIDE OF INTERSTATE-35 EAST IN GIDEON WALKER SURVEY, ABSTRACT NO. 1330 THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE M_AXJMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z04-0001) WHEREAS, Scott Chaney has applied for a change in zoning for approximately 4 acres of land located approximately 900 feet east of Pockrus Page Road, on the north side of Interstate-35 East and more particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (the "Property") from Regional Center Commercial Neighborhood (RCC-N) zoning district classification and use designation to Regional Center Commercial Downtown (RCC-D) zoning district classification and use designation; and WHEREAS, on February 25, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change is consistent with the Comprehensive Plan; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the Property is hereby changed from Regional Center Commercial Neighborhood (RCC-N) zoning district classification and use designation to Regional Center Commercial Downtown (RCC-D) zoning district classification and use. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days 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 ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. BY: RNEY PAGE 2 Exhibit A Corner :in t~ AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z04-0003 (Fletcher Medical Offices) Hold a public hearing and consider adoption of an ordinance regarding the rezoning of approximately 7.9 acres from a Regional Center Residential 1 (RCR-1) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. The property is located approximately 450 feet northwest of Shady Shores Road, on the northeast side of Interstate-35 East. Applicant proposes a medical center and retail uses. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Soraya Fletcher Argyle, TX The applicant is requesting to rezone the property for medical offices and retail uses. Based on the current Regional Center Residential 1 (RCR-1) zoning designation, medical centers are allowed only with approval of a specific use permit. The Development Code defines medical centers as walk-in facilities for medical, obstetrical, or surgical care limited to day use only. Retail sales and services are permitted in the RCR-1 zoning designation, with the limitation of no more than 25,000 square feet per gross floor area per use. The Regional Center Commercial Downtown (RCC-D) zoning designation permits medical centers and retail sales and services, with no limitations. Public notification and property owner responses are provided in Attachment 3. As of this writing, staff has received no written responses from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology of Z04-0003: February 25, 2004, Planning & Zoning Commission recommends approval of a request to rezone the property from a Regional Center Residential 1 (RCR-1) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. Ordinance 2002-040, adopted February 2002, placed the subject property in the Regional Center Residential 1 (RCR-1) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Agricultural. The property has not been platted. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photo 5. February 25, 2004, Planning & Zoning Commission Meeting Minutes 6. Draft Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting to rezone approximately 7.9 acres from a Regional Center Residential 1 (RCR-1) zoning district to a Regional Cemer Commercial Dowmown (RCC-D) zoning district. The requested zoning change would allow the applicam to develop the property for a medical center and retail uses. Based on the currem Regional Cemer Residemial 1 (RCR-1) zoning designation, medical cemers are allowed only with approval of a specific use permit. In addition, the RCR-1 zoning designation limits retail sales and services to no more than 25,000 square feet per gross floor area per use. Medical cemers and retail sales and services are permitted in the Regional Cemer Commercial Dowmown (RCC-D) zoning district. Existing Condition of Property The subject property is vacam. It appears that the southeast end of this property is within or adjacem to a zone AE floodplain and floodway. There is also an "Environmemally Sensitive Area" designation in this floodplain area. This area will need to be left in a natural state and dedicated as a drainage easemem. Adjacem Zoning North: Neighborhood Residemial 2 (NR-2) zoning district South: Planned Developmem 12 (PD-12) zoning district East: Regional Cemer Residemial 1 (RCR-1) zoning district West: Regional Cemer Commercial Dowmown (RCC-D) zoning district Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Centers" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity cemer could comain developmems such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high-density housing. The proposed commercial and institutional facilities are compatible with the Regional Mixed Use Centers uses as stated within the Denton Plan. The request to rezone the subject property is compatible with the Future Land Use Plan (Regional Mixed Use Cemers) and with the surrounding zoning designations. The proposed zoning change is in compliance with the DeNon Plan. Development Review Analysis Transportation Access to the property is limited to the 1-35 service road. Public Infrastructure The city tile maps show a 16" water main along the 1-35E service road fromage for approximately 230 feet from the southeast property corner. The city tile maps also show an 8" water main to the west of the property corner (at the service road). The city tile maps show an 8" sewer main along the south side of the Rails-to-Trails right-of-way to approximately 390 feet northwest of the northwest property comer and an 8" sewer main along the east side of Lakeview Boulevard approximately 2,200 feet east of the property. Development Code / Zoning Analysis The Regional Center Residential 1 (RCR-1) zoning district permits a variety of commercial and institutional uses, most with some type of limitation. The Regional Center Commercial Downtown (RCC-D) zoning district permits a broad array of uses, most with no limitations. The chart below illustrates the difference between the two zoning districts. Limitations for each use are explained below the chart. Single Family Dwellings N N Attached Single Family Dwellings P P Dwellings Above Businesses P P Live/Work Units P P Duplexes N N Community Homes for the Disabled P P Group Homes SUP SUP Multi-Family Dwellings P L(6) Community Service P P Semi-public, Halls, Clubs, and Lodges P P Adult or Child Day Care P P Medical Centers SUP P Hospital N P Elderly Housing P P Business / Trade School N P Mortuaries N P Hotels N P Professional Services and Offices L(15) P Retail Sales and Services L(17) P Movie Theaters SUP P Quick Vehicle Servicing N P Restaurant or Private Club L(1 1 ) P Administrative or Research Facilities SUP P Limitations: L(6): Permitted only on second story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(11): Limited to sit down only, and no drive up service permitted. Limited to no more than 100 seats and no more than 4,000 square feet of restaurant area. L(15): Uses are limited to no more than 5,000 square feet of gross floor area per lot. An SUP is required for additional square footage for Semi-Public Halls, Clubs and Lodges. L(17): Uses are limited to no more than 25,000 square feet of gross floor area per use, except grocery stores may be larger with approval of an SUP. The limitations listed above regulate the specifics of each use allowed within the zoning district. Any proposed development on this site is required to be in compliance with the site design standards of the Development Code. An approved site plan for the proposed development will be required prior to the issuance of any building permit. The chart below illustrates the difference between the two zoning districts, with regard to general zoning district regulations: Maximum Lot Coverage 55% 90% Minimum Landscaped Area 45% 10% Maximum Building Height 40 Feet 100 Feet Staff Findings The proposed zoning change is compatible with neighboring zoning designations, and is in compliance with the intent of the Denton Plan. Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change. ATTACHMENT 2 Location/Zoning Map NORTH Land Use Map ATTACHMENT 3 Notification Map NORTH Scale: None Public Notification Date: February 10, 2004 200' Legal Notices* sent via Certified Mail: 4 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 0 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Zoning Notification Sign Photo 1' View of subject property from the south. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 t4 15 16 17 18 19 20 21 22 23 24 25 Attachment 5 COMMISSIONER MULROY: Okay. Thank you, sir. Cmmnissioners, any questions.'? Well, that was easy. All right. We have no requests to speak. And I'ii close the public hearing and entertain discussion or a motion. Mr. Johnson. COMMISSIONER JOHNSON: I'll move approval. COMMISSIONER MULROY: Mr. Roy. COMMISSIONER ROY: second. COMMISSIONER MULROY: I have a motion by Mr. Johnson, a second by Mr. Roy for approval. If there is no discussion, please vote. Motion carries 7-0. Page 58 1 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 I7 tg t9 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 2O 2t 22 23 24 25 Page 59 Page 60 COMMISSIONER MULROY: we will move to Ite, u SE, rezoning of approximately 7.9 acres. I'll open the public hearing. Mr. Fuller will present. MR. FULLER: Good evenii~g. Thank you. The applicant is requesting to rezone approximately eight acres from RCR-1 to RCCD. The applicant proposes medical center and retail and sales uses. Based on the current RCRq zoning, medical centers require sup approval in order to be permitted within the zoning district. Within the ~tCCD zoning designation, medical centers are allowed and retail sales and services are allowed with no limitations. Staff has mailed four legal notices to property owners within 200 feet of the property. We've received no responses in opposition. The proposed uses are compatible with the future land use plan and do comply with the adjacent zonings. Staff rccormnends approval of the request. Thank you. COMMISSIONER MULROY: Any questions of Mr. Fuller? If not, is the applicant here to answer questions? If you will please state your name. MS. MITCHELL: I'd like the same vote as the one right before us. COMMISSIONER POWELL: We're sQre you would. MS. MITCHELL: Yeah, that's right. Oood PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 57 - Page 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Attachment 5 evening Mr. Chairman, members of the Planning and Zoning Co~mnission. I'm Karen Mitchell with Mitchell Planning Groups, 7823 Nine Mile Bridge Road iu Fort Worth. The purpose of this, as tile staff has presented to you, is to develop the eight acres as well as for some medical offices and possibly some related retail uses such as pharmacies, medical equipment, ancillary type medical uses. Before you tonight, I am showing you that there has been a preliminary plat that was submitted to the City that shows six individual lots. It's for thc purpose of the developer -- or it is the purpose of the developer to sell these individual lots to doctors for their offices. Now, I would like to point out that staff has not reviewed this yet. This is really for purposes of just showing you-all that it's an exhibit, that it is in the system, but staff has not had an opportunity to review it yet. This area is located -- let's see if ! can do this. The little red area is our area fight there. It's located in a regional activity center. When the City adopted the Denton Plan, the couununity said, this is the area where wc want to see our most intense cmmx~ereial uses in our City. Denton Regional Hospital, as we all know, is a vital part of this Page 62 5 6 7 8 9 10 11 12 13 14 t5 I6 i7 18 19 20 21 22 23 24 25 Page 63 With this being said, I'd be more than happy to answer any questions that y'al[ may have. COMMISSIONER MULROY: Cormnissioners, any questions? Mr. Roy. COMMISSIONER ROY: That spot above, just north of that -- I think it' s on the other side of Shady Shores -- no, it's not, just north of your site, NR-2, that's not developed at this time; is that correct? MS. MITCHELL: That's correct. That would be this area right up here. COMMISSIONER ROY: Okay. Thank you. COMMISSIONER MtJLROY: Any further questions? Okay. If not and we have no requests to speak, I'm going to close the public hearing and entertain discussion or a motion. Ms. Holt. COMMISSIONER HOLT: I move approval. COMMISSIONER MULRO¥: I have a motion for approval by Ms. Holt. Mr. Powell. COMMISSIONIER POWELL: I'll second the motion, but if I could in discussion -- could I go right into that? COMMISSIONER MULROY: If you'll second on the record and then we're open for discussion. COMMISSIONER POWELL: 1 had read this earlier and saw no notification at all that the applicant Page 64 comnmnity and the city's economy. Hospitals attract doctors offices and other ancillary uses needed to support the medical conununity. This is evident just by looking at tonight's Agenda. Currently this property can be used for office -- or excuse me, for medical clinics only with an approved sue and retail uses up to 25,000 square feet per lot. Because medical offices are the primary use that we are seeking, we are requesting a district that allows these types of uses by right as well as a district that is consistent with file adjacent districts. As you-all just saw in your last case, I'm going to kind of like shew the zoning map just a little bit, a liale bit larger here. This is our site right here. The property right here is acco. This is the one that I believe you just reconm~ended approval on for I~CCD. All of this to the northwest is RCCD. And then we have a part that is right down here on the City limit line that is also this same zoning district. So what we are asking for is a district that is consistent with the adjacent ones. To smmnarize, the Fie[chefs are desiring to develop this property for their medical offices and would like to market the remainder of the property to their colleagues and other ancillary type fields. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was the Mitchell Planning Group. I would have given this a lot more -- harder look over had I known that. So in the future if you could red stamp it Mitchell Planning Group or something. COMMISSIONER MULROY: we'll instruct staff to do that. Thank you, Mr. Powell. Mr. Johnson. COMMISSIONER JOHNSON: IS this tile area that was just clear-cut recently beside the freeway, took down all of those trees? Ms, MITCHELL: clear-cut is such a harsh tenn. It is my understanding that prior to this property going under contract to the current applicant that the people prior to that were going to be using this site for something different. They went in to do some cutting out of the scrub brush as well as some of the larger Willow Tn:cs in that ama so that they could look at thc drainage patterns. Docs that answer your question? I hope. COMMISSIONER MULROY: It wasn't a direct answer. It was a pretty good deflection there. Any further questions of Ms. Mitchell? Okay. We have a motion by Ms. Holt, a second by Mr. Powell. If there's no further discussion or questions, please vote. Motion carries 7-0. MS, MITCHELL: Thank you. PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 61 - Page 64 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM REGIONAL CENTER RESIDENTIAL 1 (RCR-1) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO REGIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 7.9 ACRES OF LAND LOCATED APPROXIMATELY 450 FEET NORTHWEST OF SHADY SHORES ROAD, ON THE NORTHEAST SIDE OF INTERSTATE-35 EAST IN GIDEON WALKER SURVEY, ABSTRACT NO. 1330 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. (Z04-0003) WHEREAS, Soraya Fletcher has applied for a change in zoning for approximately 7.9 acres of land located approximately 450 feet northwest of Shady Shores Road, on the northeast side of Interstate-35 East and more particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (the "Property") from Regional Center Residential 1 (RCR-1) zoning district classification and use designation to Regional Center Commercial Downtown (RCC-D) zoning district classification and use designation; and WHEREAS, on February 25, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change is consistent with the Comprehensive Plan; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDA/NS: SECTION 1. The zoning district classification and use designation of the Propertyis hereby changed from Regional Center Residential 1 (RCR4) zoning district classification and use designation to Regional Center Commercial Downtown (RCC-D) zoning district classification and use. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be freed a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: · HERBERT L. PROUTY, CITY ATTORNEY PAGE 2 Exhibit A of 'TO 'T~HE L[2~OLDERS AND/OR T~ OW~¢ERS AC'~/Of~ ~JRCH.-A~R~ OF T~ PREMISES S~VEYEO AND TO RE:~ TCTLE: t hereby certify tN~t on ~he lzth d~y o' Febru~y, 2~4, t,~s s!~veff -~es mod on the ground ~s per ~he fieM no[es shown o~ this survey ~d ~s true, ff ony, o~ ds to t~e o(her ~tters sho~n ~reon, orM correc[.~'X sho~ the eesements ~ other m~tt~s of on ~j~.ent Feper't'y streets ~ ~eys by a~¢~mFove~~~?bj~t e~ ~, ~,~ ~ ~ ~. ~ / ~..: T'.."7"'T AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z03-0040: (Premier Cinemas) Hold a public hearing and consider adoption of an ordinance rezoning approximately 7.9 acres from a DowNown ResideNial 2 (DR-2) zoning district to a DowNown Commercial General (DC-G) zoning district. The site is generally located 230 feet west of CeNre Place Boulevard. A movie theatre is proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND ApplicaN: Premier Cinema Corporation Big Sandy, TX Under the existing DowNown ResideNial 2 (DR-2) zoning designation movie theaters are not permitted. The proposed 2,900 seat movie theater is considered a "major even eNertainmeN" use requiring a DC-G zoning designation and the approval of a specific use permit. A specific use permit (case number Z03-0041) is being considered in conjunction with this zoning request. DowNown Commercial General (DC-G) zoning districts abut the subject site along the North and South property boundaries. An additional DC-G district is located across Centre Place Boulevard. DR-2 districts are located along the West (Campus Housing ApartmeNs developmeN) and East (vacaN parcels). The uses developing in this area, along the Frontage Road and Centre Place Boulevard, are intended to service the residents of Denton as well as 1-35E commuters. The development concept along the Centre Place Boulevard is to provide services that are complementary in nature and interconnected by pedestrian access between parcels creating the synergy needed for a pedestrian corridor. The site will be accessed from 1-35 FroNage Road and CeNre Place Boulevard. The proposed zoning change is in compliance with the policies of the DeNon Plan regarding the iNended land uses within a Downtown University Core District. No neighborhood meeting was held for this zoning request. Public notification information is provided in AttachmeN 3. As of this writing, staff has received one (1) response in opposition or in favor from a property owner 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 (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to the issuance of any building permits. PRIOR ACTION/REVIEW An alternative development plan and specific use permit applications have been submitted in association with this zoning change request. ATTACHMENTS 1. Staff'Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Photos 5. Applicant's Response 6. February 25, 2004 Planning and Zoning Commission Minutes 7. Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting the zoning change of approximately 7.9 acres from DR-2 zoning district to DC-G zoning district. Downtown Commercial General (DC-G) districts are located to the North and South of the subject property. Downtown Residential 2 (DR-2) districts are located to the East and West. The most recent businesses developed in this area are listed below. A multi-family complex (Campus Housing Apartments) abuts the property along the West. Development Site Address Johnny Carino's Restaurant 1516 Centre Place Blvd Chuck E. Cheese Restaurant and 341 South 1-35 E Entertainment Farmers and Merchants Bank 1517 Centre Place Blvd Hampton Inn Hotel 1513 Center Place Blvd Existing Condition of Property Property History. February 20, 2002 - Ordinance 2002-040 placed the subject property in a Downtown Residential 2 (DR-2) zoning district. Adjacent zoning and land uses. North: South: East: West: Downtown Commercial General (DC-G) (vacant parcel) Downtown Commercial General (DC-G) (Chuck E. Cheese and vacant parcel) Downtown Commercial General (DC-G) (vacant parcel across Centre Place Boulevard) Downtown Residential 2 (DR-2) (Campus Housing complex) Comprehensive Plan Analysis The subject site is located in the "Downtown University Core District" future land use area. This area is intended to have a mix of educational, residential, retail, office, service, government, cultural and entertainment development. It is a place where residents can live, work, learn, and play in the same neighborhood. The existing high-density residential uses and new commercial developments, similar to the businesses being developed along the Centre Place Boulevard corridor, could create the mix of residemial and non-residemial activities recommended by the DeNon Plan for this area. The proposed zoning change is in compliance with the policies of the Denton Plan regarding the intended uses within the Downtown University Core District future land use. Developmem Review Analysis Transportation A Traffic Impact Analysis (TIA) would be required prior to any final platting of any portion of this property to demonstrate that there is adequate traffic related infrastructure to support the proposed developmem uses. Access The proposed developmem will be required to take access from Cemre Place Boulevard and 1-35 East Frontage Road. Road Capacity The Denton Mobility Plan identifies Centre Place Boulevard as a collector. This street is designed to be a four (4) lane undivided street with parking, providing two (2) lanes of through traffic. As such, its designed traffic capacity allows for a tolerable traffic flow of up to 7,500 trips per day. Cemer Place Boulevard is curremly constructed with two (2) lanes with parking. The 1-35 East Frontage Road is designed to carry approximately 5,000 trips per day. Staff anticipates that there is adequate capacity to handle the calculated trips that could be generated by the proposed development. Development Review Even though the existing DR-2 zoning classification allows for some limited non- residential development, the nature of the district is directed toward residential uses, both single-family and multi-family. The proposed DC-G district eliminates the single-family componem and increases the imensity of both multi-family and non-residemial uses. The differences between the existing DR-2 and the proposed DC-G zoning designation are summarized in the following table: Single-family Permitted Not Permitted Accessory Dwelling Unit Permitted Not Permitted Duplexes Permitted Not Permitted Group Homes Not Permitted Specific Use Permit Hotels Not Permitted Permitted Bed & Breakfast Limitation 9 Permitted 4 Retail Sales and Services Limitation 15 Permitted Theaters less than 1,000 seats Not Permitted Permitted Restaurant or Private Club Not Permitted Permitted Drive-through Facility Not Permitted Specific Use Permit Professional Services & Offices Limitation 15 Permitted Quick Vehicle Servicing Not Permitted Specific Use Permit Vehicle Repair Not Permitted Specific Use Permit Auto & RV Sales Not Permitted Limitation 20 Major Event Entertainment Not Permitted Specific Use Permit Commercial Parking Lot Not Permitted Limitation 28 Administrative & Research Facility Specific Use Permit Permitted Broadcasting of Production Studio Specific Use Permit Permitted Printing/Publishing Not Permitted Permitted Bakeries Not Permitted Permitted Wholesale Sales Not Permitted SUP/Limitation 36 Wholesale Nursery Not Permitted SUP/Limitation 36 Veterinary Clinics Specific Use Permit Permitted Community Service Not Permitted Permitted Business/Trade School Not Permitted Permitted Kindergarten/Elementary School Permitted Not Permitted Middle School Permitted Not Permitted Colleges Not Permitted Permitted Hospital Not Permitted Permitted Elderly Housing Not Permitted Permitted Medical Centers Specific Use Permit Permitted Mortuaries Not Permitted Permitted Minimum Lot Area (square feet) 4,000 None Minimum Lot Width 40 feet None Minimum Lot Depth 80 feet None Minimum Front Setback 10 feet None Minimum Side Yard 6 feet None Minimum Side Yard Adjacent to a Street 10 feet None Minimum Rear Yard 10 feet None Minimum Rear Yard Abutting Single-family 10 feet plus 1 foot for 20 feet plus 1 foot for Use or District each foot of building each foot of building height over 30 feet height over 30 feet Minimum Residential Unit Size 500 square feet 500 square feet Maximum FAR 0.75 3.0 Maximum Density 30 units 150 units Maximum Lot Coverage 75% 85% Minimum Landscape Area 25% 15% Maximum Building Height 45 feet 100 feet/Limitation 33 An alternative development plan (ADP03-0010) has been requested for the proposed development to deviate from the parking arrangement standards. STAFF RECOMMENDATION Staff recommends approval of Z03-0040 based on the following findings: 1. The proposed zoning change is in compliance with the policies of the Denton Plan regarding the intended uses within the Downtown University Core District future land use. 2. The proposed DC-G zoning designation is compatible with the existing DC-G districts adjacent to the North and South of the subject site. ATTACHMENT 2 Maps NORTH LOCATION AND ZONING MAP SITE FUTURE LAND USE MAP ATTACHMENT 3 Public Notification Notification Map NORTH Ft. Notification Limits Scale: None Newspaper Notification Date: February 13, 2004 December 6, 2003 Percent of land within 200' in opposition: 0% 200' Legal Notices* sent via Certified Mail: 4 500' Courtesy Notices* sent via 1st Class Mail: · In Favor: 1 · Opposed: 0 · Neutral: 0 10 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name and In favor/neutral/ Comments Address /opposed* Miguel Arce, Favor No comments. 1541 Meadow St. ATTACHMENT 4 Site Photographs View from Centre Place Boulevard. lO ATTACHMENT 6 Applicant's Letter Friday, January 02, 2004 Planning & Zoning Commission City Council Mayor City of Denton Re: Zoning Change Application - Denton Station Theater Complex Zoning: Existing District: DR-2 Proposed District: DC-G Justification of Request: With the exception of the Campus Housing Mul~ifamily to the immediate west, all property surrounding this tract is zoned DC-G. In addition, all surrounding existing uses are multi-family, commercial or vacant. Zoning this property to DC-G v~uld not only allow the theater use that we are proposing but would allow more compatible and intermingled uses between the adjacent tracts, an important element of the Downtown = University districts. Assessment of Public Facilities: As this use is similar to the surrounding tracts, developed and undeveloped, utilities, streets, drainage have been planned for this type of intensity. As is frequently the case, utilities and drainage will need to be rerouted during platting, but negative impacts on the city wou!d be minimal, if any, be~en what zoning exists and what is proposed Thank you for your consideration of this case. Sincerely Allen R. Bussell GEES, Inc. 11 Vicinity Map 12 6 7 8 9 10 [3 14 15 I6 17 18 20 ¸25 2 3 4 d 8 9 I0 !2 14 I? !9 2O 27 2,4 25 Condon solt ~x Page 37 COMMiSSiONER MULROY: V:C'll gO tO SA rczonh~< of approxhnatdy 7.9 acres. I'll open fi~c public hearing and Ms. Viera will present. MS VIEIbk Good evening, Comm~ssien, Chainm).n. Tlc applicant is proposing tNe zoning change of approximately 7.9 acres from DR-2 to Dec} to allow a 16-scFecu movie theater located north of 1-35E west of Center Place Bou!cvard, Thc next - this itcm and thc K:o cie{riot arc !ocat~l along thc norih and 5o',tln and across Center Place Boulc,,ard There is a Housing apartmcm complex is cun:enfly developcd~ And stafl finds lbo proposed zoning change 5n compliance 5dth thc Denton Plan for thc Downtok5 n UnSvcrsJt} Core District. Staff also finds that thc ix'oposa! wSll consolJdatc a ixo District in fiat arc'a, and COMMBSiONER MULROT: Thank }'oil Is the applicant hero ~o answer any questions7 MR, BUSSELL: chairman, (2ommissloaer~, 6 7 8 9 10 11 12 ~3 I4 15 16 17 1.8 19 20 2i COMN:'ISSIONEI~, MULROY: We'-v6 got a motion to approve by Mr COMMISSIONER MULROY: A Mr. Strange if there's no d~scussion, p!casc voic~ Motion carries %0. Allc'~ Bussc!i v, ith Or% Edwards Engil',Ccring. 162i Amanda Court. Ponder, It' I could, I'1! just make olio pro?osal at ibc end of a!! o!' thk o~ one pmscmatioa ai thc end of ali of t~Ss thru kSnd of tics this all togcthc: wJtl: hc Page that you may have on this item rigM now. COhC'd[SSIONER MUI,ROY: .,kr~} cjttcst~oas Of Bussdl? No questions =- uh, go alnead, Nfl', Roy, I'm 22 23 24 25 SOl-F!:. COMMISSIONER ROY: Mr. Bussdl. could, you - ~hosc blocks that arc above 1-35, I'm havi ~g troubl6 'Mien I went out thom [o pinpoint exactly where that ske v, as. Cotid }ou slxsw me Chuck E. Clx~sc m:d Jolmnie Carinos? MR. bUSSEN,: chuck E. C]it~sc is right COMM[SSK)Ni!R ROI': MR. BUSSELL: JOhrmi0 Caritos is ]iclxL Thc Fa'.'mc-s/Me cimnt Bank is right ]'.,crc and file New H:.mpton 6 7 8 9 l0 1 14 15 COMSI[SSiONEJ}I ROT; SO th6 Silo iS acttmlly th~l correct? MR. BL'SSELh: YeS, sir. COMMiSSiONER ROY: there's a lk'w loads of dirt out fi'~crc now? MiL Bi SSELL: CON MISSIONER ROY: okay. l'haffs -- I know v. ht site }ct "re talking about. Thank you 17 19 20 21 22 23 24 Page 40 LANN'i%G AND ZONING COMMISSION FEBRUARY 25, 2004 Nme o, - Page 40 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM DOWNTOWN RESDENTIAL 2 (DR-2) TO DOWNTOWN COMMERCIAL GENERAL (DC-G) ZONING DISTRICT CLASSIFICATIONS AND USE DESIGNATIONS FOR APPROXIMATELY 7.9 ACRES OF LAND GENERALLY LOCATED ALONG THE WEST SIDE OF CENTRE PLACE BOULEVARD NORTH OF INTERSTATE 35 EAST AND LEGALLY DESCRIBED AS TRACT 311 OF THE A. HILL SURVEY AND LOTS i0 AND 11 OF THE INMAN ADDITION, PROVDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0040) WHEREAS, Gary Moore initiated a change in zoning for approximately 7.9 acres of land more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property") from a Downtown Residential 2 (NR-2) zoning district classification and use designation to Downtown Commercial General (DC-G) zoning district classification and use designation; and WHEREAS, on February 25, 2004, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change in zoning is consistent with the Comprehensive Plan and Development Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The zoning of the Property is hereby changed from Downtown Residential 2 (DR-2) zoning district classification and use designation to Downtown Commercial General (DC-G) zoning district classification and use designation. Notwithstanding the above real property description, the Property being rezoned includes all property to the centerline of all adjacent street rights-of-way. SECTION 3. The City's official zoning map is amended to show the change in zoning district classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person violating any provision oftkis ordinance shall, upon convict/on, be Page 1 of 2 fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days 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 ,2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 of 2 Exhibit A PROPERTY DESCRIPTION OF 7.85'6 ACRE TRACT SITUATED in the City of Denton, Denton County, Texas in the A. Hill Survey, Abstract No. 623, and being a part of 19.33 acre tract of land described in deed from Campus Park Denton, LTD., to Campus Park Denton Ii, LTD. and recorded in Volume 4911, Page 1952 of the Real Property Records of Denton County, Texas, and being more fully described as follows: BEGINNING at a ¼ inch iron rod found at the Northeast corner of the said 19.33 acre tract; THENCE South 03 degrees 09 minutes 02 seconds East, with the East line of the said 19,33 acre tract a distance of 343.35 feet to a point for a corner; THENCE South 88 degrees 30 minutes 26 seconds West, with the Northerly most South line of the said 19.33 acre tract a distance of 646.04 feet to a point for a corner; THENCE South 01 degrees 24 minutes 54 seconds East, a distance of 244.98 feet to a point for a corner; THENCE North 89 degrees 55 minutes 26 seconds West, a distance of 146.38 feet to a point for e comer; THENCE North O0 degrees 00 minutes 00 seconds East, a distance of 107.30 feet to a point for a corner; THENCE South 89 degrees 58 minutes 10 seconds West, a distance of 123.55 feet to a point for a corner; THENCE North 00 degrees 00 minutes 02 seconds West, a distance of 138.82 feet to a point for a corner; THENCE North 90 degrees O0 minutes 00 seconds East, a distance of 127.67 feet to a point for a corner; THENCE Norlh 00 degrees 00 minutes 00 seconds East, a distance of 8i .00 feet to a point for a corner; THENCE North 90 degrees 00 minutes 00 seconds West, a distance of 80.17 feet to a point for a corner; THENCE North 00 degrees 00 minutes 00 seconds East, a distance of 87.t2 feet to a point for a corner; THENCE NOrth 90 d~'grees 00 mi~"utes 00 Seconds West a distance of 115.69 feet to -~' point for a corner;, THENCE North 00 degrees 00 minutes 00 seconds East. a distance of 74.85 feet to a point for a corner; THENCE North 89 degrees 29 minutes 58 seconds East, a distance of 201.43 feet'to a point for a ' comer; THENCE North 00 degrees 03 minutes 54 seconds West, a distance of 81.21 feet to a point ~or a --.-: ,u ..' ~. !: . comer; THENCE North 89 degrees 26 minutes 29 seconds East, with the North line of the said 19.33 acre tract a distance of 40.85 feet to a point for a corner; THENCE North 00 degrees 33 minutes 31 seconds West, a distance of 25.00 feet to a point for a corner; THENCE North 89 degrees 26 .minutes 30 seconds East, with the North line of the said 19.33 acre tract a distance of 717.10 feet to a point of beginning and containing 7.856 acres of land more or less. Bearing system is based upon on the deed recorded in Volume 4911, Page 1952, Real Property Records of Denton County, Texas. This document was prepared under 22 TAC 663.2t, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real properly except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. Z:/Sent RecordslgOO-999t9931Survey/LegaF7.856 AC.doc AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z03-0041: (Premier Cinemas) Hold a public hearing and consider adoption of an ordinance concerning a Specific Use Permit (SUP) for a proposed 2,900-seat movie theater on approximately 10.2 acre site. The site is generally located 230 feet west of Centre Place Boulevard. The property is currently zoned Downtown Residential 2 (DR-2). A zoning change for a Downtown Commercial General (DC- G) designation has been requested in association with this SUP. A movie theatre is proposed. The Planning and Zoning Commission recommends approval. (7-0) BACKGROUND Applicant: Premier Cinema Corporation Big Sandy, Texas The applicant is proposing to construct a movie theater with 16 screens and approximately 2,900 seats. A Specific Use Permit (SUP) is required for movie theaters on property zoned DC-G and is not permitted on property zoned DR-2. However, the applicant has also requested that the 7.8 acres of DR-2 property be rezoned to DG-G (Z03-0040). Recent amendments to the code (SI03-0024) allowed movie theaters in the Regional Center Commercial Neighborhood and Downtown (RCC-N & RCC-D) zoning districts by right and required an SUP in a few other zoning districts, including DG-G. The following excerpt from the staff analysis from that code amendment identifies the underlying reasoning for that recent code amendment: "If properly located and planned, movie theaters could be located in a number of different locations throughout the city. However, it appears that the most appropriate location would be within the Regional Mixed-Use Activity Centers land use areas. These areas are adjacent to 1-35 and are intended to focus on the shopping, services, recreation, employment, and institutional facilities supported by and serving an entire region." This property is also located adjacent to and has direct access to 1-35. Additionally, this property is within close proximity to the University of North Texas, Downtown, and housing. Public notification and property owner responses are 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. Approve w/conditions. 3. Deny. 4. Postpone consideration. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW Zoning change and alternative development plans application have been submitted in association with this special use permit request. ATTACHMENTS 1. Staff'Analysis 2. Maps 3. Public Notification (Property Owner Notification Map & Property Owner Response) 4. Photos 5. Site Plan & Elevations 6. February 25, 2004 Planning and Zoning Commission Minutes 7. Ordinance Prepared by: Deborah Viera, AICP Planner II Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Zoning Request The applicant is proposing a 16 screen, 2,900 seat movie theater which requires approval of a Specific Use Permit (SUP). Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Downtown Commercial General (DC-G) and Downtown Residential 2 (DR-2), zoning districts and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, this property was zoned Commercial (C) and Multi-family (MF- 1 c). Adjacent Zoning and Land Use. North: Downtown Commercial General (DC-G), Undeveloped. South: Downtown Commercial General (DC-G), Restaurant & undeveloped. East: Downtown Commercial General (DC-G), Undeveloped. West: Downtown Residential 2 (DR-2), Campus Park Student Housing. Comprehensive Plan Analysis The subject site is located in the "Downtown University Core District" future land use area. This area is intended to have a mix of educational, residential, retail, office, service, government, cultural and entertainment development. It is a place where residents can live, work, learn, and play in the same neighborhood. The proposed development is consistent with the Denton Plan. Development Review Analysis Transportation Trip Generation. A Traffic Impact Analysis (TIA) will be required prior to final platting. Access. The development will have access from 1-35 and Centre Place Boulevard. Environmental Quality Impacts No environmental impacts from the proposed development have been identified. Development Code/Zoning Analysis Section 35.6.5 of the 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 other property nor significantly diminish or impair property values within the immediate vicinity; Although the majority of the surrounding property is undeveloped, the applicant has worked closely with adjacent property owners to ensure that the proposed development will be compatible with adjacent properties, specifically, Campus Park Student Housing. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; In all likelihood, the development of the movie theater will spur development in the area. That adequate utilities, access roads, drainage facilities have been or will be provided; All necessary supporting facilities are available. and other necessary supporting 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; The proposed site design does provide for the safe and convenient movement of vehicular and pedestrian movement. That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration; No offensive odor, fumes, dust, noise or vibration are anticipated. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and All lighting within the proposed development must be in compliance with the Light and Performance requirements established by the Development Code ((Subchapter 35.13.12). That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. The applicant has worked with the adjacent property owner (Campus Park Student Housing) to provide adequate screening. However, Section 35.6.6 allows the Commission to recommend additional conditions on the proposal to protect the public interest and the welfare of the community that include, but are not limited to the following: A. Regulation and limitation of uses B. Regulation of setbacks and spacing C. Regulation of fences and walls D. Regulation limiting the magnitude of traffic generated E. Regulation of points of vehicular and pedestrian ingress and egress F. Regulation of signs G. Regulation of building materials, textures, colors and architectural features H. Regulation of landscaping, including screening and buffering where necessary to increase compatibility with adjoining uses I. Regulation of noise, vibration, odors or similar nuisances 4 Jo K. L. M. N. O. Regulation of hours of operation and the conduct of certain activities Regulation of the period of time within which the proposed use shall be developed. Regulation of the duration of the use. Regulation of any Environmental Sensitive Areas as allowed under Subchapter 17 Regulation of any site development condition permitted by Subchapter 13 Such other conditions as will make possible the development of the City in an orderly and efficient manner and in accordance with the provisions of the Chapter 35 that are reasonable. STAFF FINDING The proposed development is consistent with the Denton Plan and meets the requirements for a Specific Use Permit. STAFF FINDINGRECOMMENDATION Staff recommends approval. ATTACHMENT 2 Maps Location/Zoning Map NORTH Scale: None NORTH Land Use Map Scale: None ATTACHMENT 3 Public Notification NORTH Notification Map Notffication Limits Scale: None Newspaper Notification Date: February 15, 2004 Percent of land within 200' in opposition: % 200' Legal Notices* sent via Certified Mail: 4 500' Courtesy Notices* sent via 1st Class Mail: · In Favor: 1 · Opposed: 0 · Neutral: 0 6 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name and In favor/neutral/ Comments Address /opposed* Miguel Arce, Favor No comments. 1541 Meadow St. ATTACHMENT 4 Site Photos 10 ATTACHMENT 5 Site Plan 11 Enlarged Site Plan Elevations i Z 0 Rendering 4 5 6 7 8 9 11 12 14 I5 16 17 8 9 21 22 23 24 25 2 3 4 5 d ? 9 10 1 !2 13 I4 15 17 I8 19 2O 21 22 23 24 25 CondcnseltTM Page 41 COMMISSi~ONER MULROY; \x,'e Will II1OVC to ~'ieill 5B in th~ public hearings, a Specific Use Pem~it. I'ti open thc public hearing. Ms. Viera will presem. district, a Specific Use Pcmdt musl be requira5 to allow a movie theater. Thc applicant has worked wig thc adjacent muhi-family complex to provide connccfivky and buffer be~v~n both uses. And stag at this poiut believes that the proposal thefts tile 7 item criteria tist~l on your backups and is r~onunending approval. COMMISSIONER MULROY: Thmqk you, Ms. Micra. Any questions of Ms, Viers? If not, the applicant is here ~-X t tilUlllll~ll t 0 5 6 7 8 9 10 to at~sv~'Cr qnestions or present, MR. BUSSEI.L: I'm here to answcF ally qnestions. COMMISSIONER MULROY; Mr, Roy. COMMISSIONER ROY: This iS a strange looking sit:, Could you -- is flm~ jnst thc way it is or is there a re~son ~br those jagg:d -- MR. BUSSEL[,: It's th6 remainder from the Page 43 COMMISS!ONEt~-JOItNSON rll move approval. COM.M[SSION! R MULROY: we have. a molten by Mn Johnson. COMMISSIONER ROY: SOCOEd. COMMISSIONER MULROY: A SOCOnd by Mr. Roy. ff there's no discnssion, please, vote Item carries Okay. Now, we will move back to [tcm 4C, [lla['S [lie APD }~Or lllC parking lot configuration for the same movie Ggatcr and this is not a public hearing. Ms Viers, if you will proc~d. MS. VIER:L: Thc applicant is proposing to deviate from p,':o requirements of Chapter i 3 of the 13 14 15 t6 I7 18 19 20 Campus Housing Development is the r~son it's kind of cut up on It~e left side there. COMMISSIONER ROY: okay. This theater that's being proposed, bow does it compare [o thc theater Gals ~n Corinth? About the stone or -- Development Code. The first requirement, ii is for a parking configuration. Tim Codg states that any parking area with 100 parking spaces er more should be broken down into subar~as. The applicant have broken the parking t~o~cvcr, they -- all the ar~ exc~ds lhe 100 parking spaces. They range between 112 and 133 parking spaces. Thc second standard that thc applicant is asking to devi~e from, ir is the bul'fkr yard bc~,,'~n the Page 42 MR. BUSSELL: TO be honest with you. I don't know. ~ think the site plan is boner, persona! o?i~5om The -- we -- this is proposal I6 screens, And I'm not st~rc iow ninny arc at thc Rave, COMMISSIONER ROY: okay. Thank you, COMMISS[ONE[~ MULROY; Any [~lrlhcr COMMISSIONER POWELI,: Yes. Since thc Rave was mendoned, parking is inadcquatc them. Have you made better plans for parking, hopeflflly, than fl~cy did down 21 22 23 24 25 1 2 3 4 5 6 7 8 9 l0 there? People are parking on the dirt and tt~e ~'avet and 5~'ass because it's just not adextuate, MP,. BUSSELL: [ situated as much parking as close to the building as I could and I'll show you that in a few minutes. COMMISSIONER POWELL: ThaE~: you. 5JR. BUSSELL: Y~S, sir. COMMISSIONER POWELL: fl probably wasn't thc proper time to ask that question but it came to MR. BUSSELL: That's fine. COMMISSIONER MULROY: Yon'r~ allow~l. Any further qunsdons of ~v~'. Busseli? Wo have no cards [bt a desire to sp~k fi'om the pubic Fm going to clos~ the pnb!ic h~aring and entertain disclls~ioL1 or a motion. Mr. JoJinson, propos~ development and the adjacent multi-family. According re Subchapter 13~ large scale development as this one must provide a solid 10once bc~,:c~n boih developments, The applicanl has worked with ~he Campus Page 44 Honsing Complex to provide architectural metal fence berwc~f~ biOth properties providing for pedestrian aad fire truck ga~es, Staff has received a letter fi'om thc spar:mcat compkx~ Owner said that fl~cy a~'c~ with the proposal At this dine sl~ff fs rcconunending approval. COMMISSIONER MULROY: okay. Thank yom Ms, Viers. And fi~e applicant is here. if you will state yot~ name again. MR BUSSELL: Yes, shL Allen Bnssdl at Grog Edwards Engha~ring Services, 1621 Amanda Court, 11 12 13 14 16 I7 18 19 20 21 22 23 24 25 Ponder. i']i.iusr go tN'ough this presentation reaI quickly, if you don't mind. I've done a couple of ADP"S, I think I know pretly much what you guys are looking for here, The -- these are the fl~r~ areas that we. kc going for and thc last one I!~e is a parking lot It's greater dxan a t00, and tie open architectural metal fence as opposed to an eight-foot solid wail bc.twc~n the developments, v:hict'~ in a downtown district just doesn't make any sense, k closes off' of x~hcre you want to connect. Here's the k~cafion. I included the ~crial here and composit~t a computa' modal on it so it's a li~le caster to s<~e. And this answers yotn' qnesfion of wha~ besincsscs are surronnding it. With tho Chuck E. Clxcxzse in !he blue there, thc Johnnie Carinos in thc PLANNING AND ZONING COI~fMISSION FEBRUARY 25, 2004 Page 41 - Page 44 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR MOVIE THEATER ON APPROXIMATELY I0.2 ACRES OF LAND GENERALLY LOCATED ON THE NORTH SIDE OF INTERSTATE 35 EAST APPROXIMATELY 230 WEST OF CENTRE PLACE BOULEVARD, AND LEGALLY DESCRIBED AS TRACTS 311,334, 335 AND 336 OF THE A. HILL SURVEY AND LOTS 10 AND 11 OF THE INMAN ADDITION, WITHIN A DOWNTOWN COMMERCIAL GENERAL (DC-G) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,'000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z03-004t) WHEREAS, Premier Cinema Corporation has applied for a specific use permit for a movie theater on an approximately 10.2 acres of land within a Downtown Commercial General (DC-G) zoning district classification and use designation more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on February 25, 2004, the Planning and Zoning Commission recommended approval of a specific use permit for a move theater; and WHEREAS, the City Council finds that the specific use permit will be in compliance with The Denton Plan Policies; and WHEREAS, in accordance with Subchapter 6 of the Development Code of the Code of Ordinances of the City of Denton, Texas, the City Council finds that all of the following conditions exist: That the movie theater 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; That the establishment of the movie theater will not impede the normal and orderly development and improvement of surrounding property; That adequate utilities, access roads, drainage, and other necessary supporting facilities have been or will be provided; That the design, location, and arrangement of ali 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; That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; PAGE 1 That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property; 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. A specific use permit is hereby approved to allow a movie theater on the Property within a Downtown Commercial General (DC-G) zoning district classification and use designation, in accordance with the site plan on file in the offices of the City's Planning Department, a copy of which is attached hereto and incorporated herein as Exhibit "B". Notwithstanding the above real property description, the property being rezoned includes all property to the centerline of all adjacent street rights-of-way. SECTION 3. The City's official zoning map is amended to show the change in zoning district classification. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: PAGE 2 APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY TORNEY BY: ~ PAGE 3 EXHIBIT A PROPERTY DESCRIPTION OF 10.136 ACRE TRACT SITUATED in the City of Denton, Denton County, Texas, and in the Alexander Hill Survey, Abstract Number 623 and being a part of a 19.33 acre tract of land as described in a deed from Campus Park Denton, LTD., to Campus Park Denton Il, LTD., recorded in Volume 4911, Page 1952, of the Real Property Records of Denton County, Texas, and being Lots 3, 4, and 5, Block A of Denton Park 35 Addition, and addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet U, Page 418, Plat Records of Denton County, Texas, and being more fully described as follows: BEGINNING at a 5/8 inch iron rod found at the Northeast corner of the said Lot 5 of Denton Park 35 Addition; THENCE South 01 degrees 25 minutes 41 seconds East, with the East line of said Lot 5, passing a % inch iron rod found at a distance 211.05 feet at the Southeast comer of said Lot 5 same being Northeast corner of said Lot 3 and continuing with the East line said Lot 3 a total distance of 257.78 feet to a ½ inch iron rod set with a blue plastic cap stamped 'GEES INC.' (hereinafter referred to as a ½ inch iron rod set) for a corner; THENCE South 01 degrees 22 minutes 11 seconds East, continuing with the East line of said Lot 3 a distance of 164.78 feet to a ½ inch iron rod found for a comer; THENCE South 88 degrees 35 minutes 13 seconds West, with the South line of said Lots 3 and 4 a distance of 422.70 feet to a ½ inch iron rod set for a comer at the Southwest corner of said Lot 4; THENCE North 01 degrees 07 minutes 21 seconds West, with the West line of said Lot 4 a distance of 176.38 feet to a ½ inch iron rod set for a corner; THENCE North 89 degrees 52 minutes 48 seconds West, with the Southerly most South line of said 19.33 acre tract and the North line of LOt 1, Block I of the ACI Addition, an addition to the City of Denton, Texas, recorded in Cabinet L, Page 245, Plat Records of Denton County, Texas, a distance of 149.11 feet to a 5/8 inch iron rod found at the Southeast corner of Lot 1, Block 1 of Campus Housing Addition, an addition to the City of Denton, Texas, recorded in Cabinet R, Page 198, Plat Records of Denton County, Texas; THENCE with East line of said Lot 1, Block 1 of Campus Housing Addition the following courses and distances; North 00 degrees 00 minutes 00 seconds West a distance of 107.30 feet to a ½ inch iron rod set for a comer;, South 89 degrees 58 minutes 10 seconds West a distance of 123.55 feet to a ½ inch iron rod set for a corner; North 00 degrees 00 minutes 00 seconds West a distance of 138.82 feet to a ½ inch iron rod set for a corner; North 90 degrees 00 minutes 00 seconds East a distance of 127.67 feet to a ½ inch iron rod set for a corner; North 00 degrees 00 minutes 00 seconds West a distance of 81.00 feet to a ½ inch iron rod set for a corner; North 90 degrees 00 minutes 00 seconds West a distance of 80.17 feet to a ½ inch iron rod set for a comer; North 00 degrees 00 minutes 00 seconds West a distance of 87.12 feet to a ½ inch iron rod set for a corner; North 90 degrees 00 minutes 00 seconds West a distance of 115.69 feet to a % inch iron rod set for a comer;, North 00 degrees 00 minutes 00 seconds West a distance of 74.85 feet to a ½ inch iron rod set for a corner; North 89 degrees 29 minutes 58 seconds East a distance of 201.43 feet to a 5/8 inch iron rod found for a comer; North 00 degrees 03 minutes 54 seconds West a distance of 81.21 feet to a ½ inch iron rod set for a corner;, North 89 degrees 26 minutes 45 seconds East a distance of 40.92 feet to a ½ inch iron rod set for a corner; North 00 degrees 33 minutes 31 seconds West a distance of 25.00 feet to a 5/8 inch iron rod found for a corner in the North tine of the said 19.33 acre tract, said iron rod also being in the South line of a 27.120 acre tract of land as described in a deed recorded in Volume 4430, Page 1273 of the Real Property Records, Denton County, Texas; THENCE North 89 degrees 26 minutes 28 seconds East, with the North line of the said 19.33 acre tract and the South line of'the said 27.120 acre tract a distance of 492.03 feet to ½ inch iron rod set for a comer; THENCE South 01 degrees 24 minutes 22 seconds East a distance of 346.74 feet to a % inch iron rod set for a corner in the North line of Lot 5, Block A of Denton Park 35 Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Cabinet U, Page 418 of the Plat Records of Denton County, Texas; THENCE North 88 degrees 27 minutes 33 seconds East, with the North line of said Lot 5 a distance of 14.00 feet to the point of beginning and containing 10.136 acres of land more or less. Beadng system is based on Campus Housing Addition, an addition to the City of Denton, Texas, recorded in Cabinet R, Page 198, Plat Records of Denton County, Texas. This document was prepared under 22 TAC 663.21, does not reflect the resuEs of an on the ground survey, and is not to be used to convey or establish interest in real property except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. Exhibit B ,! ,~ ~ill',I,II,*'ILII'liIB IIl~llllll '~i'iTffi"i~'i'i'i'i'i"i'f:i'¢ AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - ADP03-0010: (Premier Cinemas) Consider adoption of an ordinance concerning an Alternative Developmem Plan for approximately 10.2 acre site curremly zoned Dowmown Residemial 2 (DR-2). A zoning change for a Dowmown Commercial General (DC-G) designation has been requested in association with this application. The site is generally located 230 feet west of Centre Place Boulevard. A 2,900- seat movie theatre is proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Premier Cinema Corporation Big Sandy, TX The purpose of alternative development plans is to provide a mechanism for those developments that do not meet the site design standards as outlined in the Development Code; but nevertheless, meet or exceed the objectives of the DeNon Plan and Developmem Code. The applicam is proposing to vary from the site design standards concerning parking lot design and buffer requiremems. § 35.13.10.B. 1 .c. (Access, Parking and Circulation Requiremems) states: "Parking lots with 100 spaces or more shall be divided imo separate areas and divided by landscaped areas or walkways at least 10 feet in width, or by a building or group of buildings." The applicam has divided the parking lot into separate areas, but each area is still greater than 100 spaces (Attachment 4). The proposed parking areas range in size from 133 spaces to 112 spaces. § 35.13.13.6.A.6. (Large Scale Developmem Regulations, Wall and landscape bufferyard requirements) in part states: "An eight-foot masonry wall of brick, stone, split block or concrete cast to simulated such materials shall be constructed along a common boundary line of the adjacem residemial property". The applicam is proposing to construct an open architectural metal fence with gates for fire lanes and pedestrian gates. OPTIONS 1. Approve 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW A zoning change (Z03-0040) and specific use permit (Z03-0041) have also been submitted in association with this alternative development plan request. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Photographs 4. Alternative Development Plan 5. Backup Information from the Applicant 6. Letter of support 7. February 25, 2004 Planning and Zoning Commission Minutes 8. Ordinance Prepared by: ASLA, AiCP Assistant Planning Director Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Alternative Development Plan Request Parking Lot: The applicant is proposing to vary from the site design standards concerning parking lot design. § 35.13.10.B.l.c. (Access, Parking and Circulation Requirements) states: "Parking lots with 100 spaces or more shall be divided into separate areas and divided by landscaped areas or walkways at least 10 feet in width, or by a building or group of buildings." The intent of this requirement is to reduce the impact of large parking lots by creating smaller sub-areas divided by landscaping. The applicant has divided the parking lot into separate areas, but each area is still greater than 100 spaces (Attachment 4). Although the proposed parking areas range in size from 132 spaces to 112 spaces, the applicant has provided approximately 64% additional open space and landscaping throughout the parking lot(s) to reduce the impact of the parking. Buffer: § 35.13.13.6.A.6. (Large Scale Development Regulations, Wall and landscape bufferyard requirements) in part states: "An eight-foot masonry wall of brick, stone, split block or concrete cast to simulated such materials shall be constructed along a common boundary line of the adjacent residential property". This standard is required for developments with a gross floor area in excess of 40,000 square feet (Large Scale Developments) when developed adjacent to an existing residential development. It's intended to provide a solid screen to those adjacent residential developments. Typically, existing residential developments want to be screened from large scale developments such as a shopping plaza as the uses are not generally considered compatible. However, the applicant has worked with the owner of the adjacent Campus Park Student Housing development and is proposing to construct an open architectural metal fence (wrought iron style) with gates for fire lanes and pedestrian gates, as well as landscaping between the two developments. Both parties believe that the theater will be a benefit to the residence and want to encourage pedestrian connectivity between the developments and promotes a combined "mixed- use" development (Attachment 6). Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Downtown Commercial General (DC-G) and Downtown Residential 2 (DR-2), zoning districts and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, this property was zoned Commercial (C) and Multi-family (MF- 1 c). Adjacent Zoning and Land Use. North: Downtown Commercial General (DC-G), Undeveloped. South: Downtown Commercial General (DC-G), Restaurant & undeveloped. East: Downtown Commercial General (DC-G), Undeveloped. West: Downtown Residential 2 (DR-2), Campus Park Student Housing. Comprehensive Plan Analysis The subject site is located in the "Downtown University Core District" future land use area. This area is intended to have a mix of educational, residential, retail, office, service, government, cultural and entertainment development. It is a place where residents can live, work, learn, and play in the same neighborhood. The proposed development is consistent with the Denton Plan. Development Code/Zoning Analysis Section 35.13.5 (Alternative Development Plan) states, "An applicant may propose an Alternative Development Plan which meets or exceeds the design objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Development Plan provides the option to address the design criteria through a flexible discretionary." (listed below) identifies the criteria for approval of an Alternative Section 35.13.5.A. Development Plan. 1. Preserve Existing Neighborhoods. The applicant has worked with the owner of the adjacent student housing development to enhance the character of the neighborhood. 2. Assure quality development that fits in with the character of Denton. With the exception of the parking lot layout and solid screen wall, the proposed development meets the criteria of the Development Code. The proposed open style fencing, the additional parking lot open space and landscaping increases the aesthetics of the site and provides for a quality development that fits with the character of Denton. 3. Focus new development to activity centers to curb strip development and urban sprawl. The proposed development is neither strip development nor urban sprawl. 4. Ensure that infrastructure is capable of accommodating development prior to the development occurring. The infrastructure in the site area will be adequate to serve the proposed development. The applicant has provided documentation (Attachment 5) explaining the reasons for the parking lot design as proposed. STAFF FINDINGS 1. The proposed parking lot design divides parking areas into 6 separate lots ranging in size from 132 spaces to 112 spaces. 2. The applicant is proposing additional parking lot open space and landscaping to offset the larger parking areas. 3. The design of the "open" style fence promotes connectivity between the existing residential development and the proposed development. 4. The proposed site design meets the intent of the development code. STAFF RECOMMENDATION Staff recommends approval of ADP03-0010. ATTACHMENT 2 Maps NORTH Location/Zoning Map SITE I)C-G Scale: None ATTACHMENT 3 Site Photos ATTACHMENT 4 Alternative Development Plan I Enlarged Site Plan ,/ ATTACHMENT 5 Applicants Justification Fdday, January 30, 2004 Planning and Zoning Commission Mayor and City Council City of Denton Re: Alternate Development Plan for the Denton Station Theater Complex T:he following items are being deviated from in this ADP Wa!! and landscaped buffer yard, Ch, 35.13. t3.6 Large Scale Development Regulations (>40,000 sq, fL in a Downtown District) 6 Code requires an 8' ta!i masonry wail between any residential use or zoning. a Due to the mixed-use nature of this design with integrated fire lanes and pedestrian connection between this site and the adjacent student housing apartments we request this be replaced with an open architectural metal fence with approved gates for fire lanes and pedestrian gates. Parking lots over 100 spaces sha!i be broken up by 10' landscape islands,~. i. Some parking areas exceed this amount due to the number of spaces needed and the geometry of the site. To compensate for these overages, a tree-lined entry with no parking along it's edges is proposed both from t-35 semi:ce road and from Centre Place Drive. In addition, 5 feet sidewalks have been placed on one side of each of these entries to provide pedestrian connection through the parking area to the theater. (See attached) Sincerely Allen R. Buss¢l GEES, inc. ATTACHMENT 6 Februaw 8, 20~ Deborah Viem City of Denton -Planning Dep,dment 221 N:. Elm St, Denton, TX 76201 Dear Ms.Viera: VVe strongly believe ~at an eight feet tall mason~ wall would de,act from the usefulness, safety, and beauty of our apadment project. In light of the use and site design proposed by the Premiere Cinema group adiacent to our ~velopment, Campus Park would prefer that Premiere Cinema build an open architectura~ metal fen~ with pedestrian and fire lane gates. Thank you for you consideration in this matter, L. Miguel Arce Vice President of Internacional Realty, Inc., General Pa~ner of Campus Park, LTD 11 4 5 6 7 8 9 11 12 14 I5 16 17 8 9 21 22 23 24 25 2 3 4 5 d ? 9 10 1 !2 13 I4 15 17 I8 19 2O 21 22 23 24 25 CondcnseltTM Page 41 COMMISSIONER MULROY; \x,'e Will II1OVC to ~'ieill 5B in th~ public hearings, a Specific Use Pem~it. I'ti open thc public hearing. Ms. Viera will presem. district, a Specific Use Pcmdt musl be requira5 to allow a movie theater. Thc applicant has worked wig thc adjacent muhi-family complex to provide connccfivky and buffer be~v~n both uses. And stag at this poiut believes that the proposal thefts tile 7 item criteria tist~l on your backups and is r~onunending approval. COMMISSIONER MULROY: Thmqk you, Ms. Micra. Any questions of Ms, Viers? If not, the applicant is here ~-X t tilUlllll~ll t / 5 6 7 8 9 10 to at~sv~'Cr qnestions or present, MR. BUSSEI.L: I'm here to answcF ally qnestions. COMMISSIONER MULROY; Mr, Roy. COMMISSIONER ROY: This iS a strange looking sit:, Could you -- is flm~ jnst thc way it is or is there a re~son ~br those jagg:d -- MR. BUSSEL[,: It's th6 remainder from the Page 43 COMMISS!ONEt~-JOItNSON rll move approval. COM.M[SSION! R MULROY: we have. a molten by Mn Johnson. COMMISSIONER ROY: SOCOEd. COMMISSIONER MULROY: A SOCOnd by Mr. Roy. ff there's no discnssion, please, vote Item carries Okay. Now, we will move back to [tcm 4C, [lla['S [lie APD }~Or ~llC parking lot configuration for the same movie Ggatcr and this is not a public hearing. Ms Viers, if you will proc~d. MS. VIER:L: Thc applicant is proposing to deviate from p,':o requirements of Chapter i 3 of the 13 14 15 t6 I7 18 19 20 Campus Housing Development is the r~son it's kind of cut up on It~e left side there. COMMISSIONER ROY: okay. This theater that's being proposed, bow does it compare [o thc theater Gals ~n Corinth? About the stone or -- Development Code. The first requirement, ii is for a parking configuration. Tim Codg states that any parking area with 100 parking spaces er more should be broken down into subar~as. The applicant have broken the parking t~o~cvcr, they -- all the ar~ exc~ds lhe 100 parking spaces. They range between 112 and 133 parking spaces. Thc second standard that thc applicant is asking to devi~e from, ir is the bul'fkr yard bc~,,'~n the Page 42 MR. BUSSELL: TO be honest with you. I don't know. ~ think the site plan is boner, persona! o?i~5om The -- we -- this is proposal I6 screens, And I'm not st~rc iow ninny arc at thc Rave, COMMISSIONER ROY: okay. Thank you, COMMISS[ONE[~ MULROY; Any [~lrlhcr COMMISSIONER POWELI,: Yes. Since thc Rave was mendoned, parking is inadcquatc them. Have you made better plans for parking, hopeflflly, than fl~cy did down 21 22 23 24 25 1 2 3 4 5 6 7 8 9 l0 there? People are parking on the dirt and tt~e ~'avet and 5~'ass because it's just not adextuate, MP,. BUSSELL: [ situated as much parking as close to the building as I could and I'll show you that in a few minutes. COMMISSIONER POWELL: ThaE~: you. 5JR. BUSSELL: Y~S, sir. COMMISSIONER POWELL: fl probably wasn't thc proper time to ask that question but it came to MR. BUSSELL: That's fine. COMMISSIONER MULROY: Yon'r~ allow~l. Any further qunsdons of ~v~'. Busseli? Wo have no cards [bt a desire to sp~k fi'om the pubic Fm going to clos~ the pnb!ic h~aring and entertain disclls~ioL1 or a motion. Mr. propos~ development and the adjacent multi-family. According re Subchapter 13~ large scale development as this one must provide a solid 10once bc~,:c~n boih developments, The applicanl has worked with ~he Campus Page 44 Honsing Complex to provide architectural metal fence berwc~f~ biOth properties providing for pedestrian aad fire truck ga~es, Staff has received a letter fi'om thc spar:mcat compkx~ Owner said that fl~cy a~'c~ with the proposal At this dine sl~ff fs rcconunending approval. COMMISSIONER MULROY: okay. Thank yom Ms, Viers. And fi~e applicant is here. if you will state yot~ name again. MR BUSSELL: Yes, shL Allen Bnssdl at Grog Edwards Engha~ring Services, 1621 Amanda Court, 11 12 13 14 16 I7 18 19 20 21 22 23 24 25 Ponder. i']i.iusr go tN'ough this presentation reaI quickly, if you don't mind. I've done a couple of ADP"S, I think I know pretly much what you guys are looking for here, The -- these are the fl~r~ areas that we. kc going for and thc last one I!~e is a parking lot It's greater dxan a t00, and tie open architectural metal fence as opposed to an eight-foot solid wail bc.twc~n the developments, v:hict'~ in a downtown district just doesn't make any sense, k closes off' of x~hcre you want to connect. Here's the k~cafion. I included the ~crial here and composit~t a computa' modal on it so it's a li~le caster to s<~e. And this answers yotn' qnesfion of wha~ besincsscs are surronnding it. With tho Chuck E. Clxcxzse in !he blue there, thc Johnnie Carinos in thc PLANNING AND ZONING COI~fMISSION FEBRUARY 25, 2004 Page 41 - Page 44 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 !7 18 !9 2O 21 22 23 24 25 Page 45 orange color. Farmers and Merchants Bank shown in grcun. Hamplon Inn, yellow. The self-slorage buildings, whkh you can s~ on the aerial them thc corner of -- 0ne dark b~'c~n and in iht magenta, you have the campus housing. What I wanted to do when I developed fi'tis site was munbcr one, conaccL it to !he public strGis make it ~asy access. We've dene thai tlu:oagh fi~c south through an access easement that goes by Chuck E. Ch~se directly to the 35E service road. And then also ~o the east v:id: a couple of private drives conn~:fing dircctly to Center Place. Also, though, w~'re connected io fine apartments to thc west whh a fire lane: And d~at will ha~e a fire lane approved ora tim dcpartmem approved gate on St. so the cars can't access th'ough there, But we'll also provide pcdcstrian gates so that people can wa~ through fl~ere and thc Campas Housing peep!e, the college st~dents would be able to access directly to tbs theater without gctling in their car and adding to om- pollution and traffic problcms fi:at we curt'early have. This is how thc entire Denton station works together and thc Denton station is the entire dca! here. It shows !he cinema there You can st~ that pretty much I 2 3 4 5 6 7 8 9 10 II I2 13 I4 15 16 17 18 19 20 21 22 23 24 Page 46 in the middle botlom there. We're going to be moving a pond ~o the north and xw'tl have a water f~mrc pond now iostcad of having just a dry dctemion pond. There s a hotel directly to the east of the ponds. To thc north of the hotel, that ~'ay building~ the long gray building is the tss.~ area that's currently in an t5tsemcnl, So we'll be creating a lot fl~cre in kz~ping those tr~s there. And then across mixed us~. If you IiIOV~ SOtlth o!1 gtc ~iSt sonic more mixed usc, T!:cro's a COl]~i'612cg collier thoro, SOlllO pads, some lofk aparlmcnts and then you s~ the existinl buildin~s~ thc Hampton Inu, Farmers and Ma'chanis and Johnnic Carinos. And ali of this ties x)gcthcr. And I wanted to show this because -- to show you how 'chines arc corn ceded bo~h now and ]n the fflhlro. Wg'r~ not.inet !ookiag at one site, But wc'm looking at the overall picture and connecting everything together. COMMISSIONER ROY: EXCUSe II10, Chalnllan, May I ask tho applicant to usc your pointer to MR. BLSSELL: TIIcnloIiscis -- COMMi:gSIONER ROY: OIL I COMMiSSiONER MULROY: Tho IIlOUS~ iS icad, MR. BUSSELL: It'S acting weird. The whole thing is, Pm ~ony I would ~ t wonder -- it's not working either. Those arc the parking areas 1hat Page 47 I talking about here. I've broken up the one on the east 2 there where ~e have 133 spots because I've oriented the 3 pafl,:ing in two dif£erent ways, I felt that broke up the 4 parking lot quite a bit there. ~ais ama here, But 5 that' s okay. 6 As you can sec, what I did is as evenly as 7 possible divided the parking lot up and got it as close to 8 the building as I could so the people wouldn't have to 9 walk a great distance, while at thc same time connecting 10 people from other sites dircctly into the site through i 1 this area. 12 So ail that of these have walkways where 13 people can get from their cars to the theater x~ithout 14 walking in the &-iveway to do it. And with this, we've 15 created -- we've doubled the landscaping in the parking 16 lot. t7 Those are the pc. destrian pathways directly I8 from the Campus Housing area through a gate here. The 19 restaurants, et cetera and there's a transit stop over 20 here. We'll be able to come in through a sidewalk in this 21 location. These parking lots, parking lots v, ould be able 22 to go in through hcre~ ~¢se sites down here with 23 watkways on both sides up to here and the same in this 24 quadrant, you'd be able to get on to a walkway and be 25 connected straight to the building, Page 48 1 So every area has a walkway that's a safe 2 walkway to thc theater site. And, of course, there's a 3 plaza included here per the Code, that, once again, 4 exceeds the minimum. 5 Ti:is is a rendering. It's a little easier 6 to see what the building is going to look like. %is is 7 ti:e 2-D view fro~ thc architect and I've put together a S 3-D vie~5 of what it would look like coming from Center 9 Place Drive going to the building at opening night tbere. i0 I think the last thing, I think, says it l 1 att. I thin. k we meet the vision for the Denton Plan in 12 the connectivity, in the landscaping area, in providing 13 fYr the big picture of what the Downtown District is 14 supposed to be like, i'm here to answer any questions. I5 COMMISSIONER MULROY: rhank you, 16 Mr. BussclI, Mr, Roy. 1'7 COMMISSIONER ROY'. in the package we have? 18 it describes a StOl> you've taken to off'set or attempt to 19 offset the impact of the larger parking areas. I[ s~ys 20 tSe applicant has provided 64 percent additional open 21 space and landscaping to reduce the impact, Could you 22 show what you mean by open space'? 23 M~t. BISSELL: ~he landscaping in the 24 parking lot and also the plaza area. We've increased thc 25 plata area dramatically, also. So we've done iooth of PLANNING AND ZONING coMMiSSION FEBRUARY 25, 2004 Page 45 ~ Page 4S 4 ? 8 10 12 17 I8 19 20 21 22 23 24 25 Page 49 [hose. WCxe increased landscaping. C©MMISSIONER ROY: Okay. ~ank you~ COMMISSIONER MI LROY: Any further questions of Mr, Buss&l? it' not -- okay, Thank you. MR, BLSSELL: Thank you. COMMISSIONER MULROY~ AI~ right. We' entertain a motion or further discussion. Mn Watkins. COMMISSIONER WATKINS: Thank you, Chairman~ I would reconm~end appt'oval o~ ADP-03-00i0~ COMMiSSiONER MULROY: We have a motion by Mr. Waikins, Ms. Holt. COMMISSIONER HOLT: Second. COMMISSIONER MULROY: And a second by Ms. Holt. If there's no further discussion -- Mr. Watkins? COMMISSIONER WATK~NS: NO. ~'tTi SO~. COMMiSS, IONEt~ MLJLROY: Okay, ig there's no further discussio~q, please vote. ltcm cames 7-0. 12 13 14 15 16 17 20 21 22 23 24 25 Page 50 2 3 4 5 6 7 $ 9 10 It 12 13 14 15 16 17 19 20 21 22 23 24 25 1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 I0 10 t 11 12 13 14 I5 16 17 18 19 2O 21 22 23 24 25 PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 51 Page 52 Page 49 -Page 52 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATIVE DEVELOPMENT PLAN FOR THE DENTON STATION THEATER COMPLEX, BEING AN APPROXIMATE 10.25 ACRE SITE LOCATED ALONG THE NORTH SIDE OF INTERSTATE 35 EAST APPROXIMATELY 230 WEST OF CENTRE PLACE BOULEVARD, AND LEGALLY DESCRIBED AS TRACTS 311,334, 335 AND 336 OF THE A. HILL SURVEY AND LOTS 10 AND 11 OF THE IN-MAN ADDITION; PROVIDING FOR A SAVING CLAUSE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (ADP03-0010) WHEREAS, Premier Cinema Corporation, owner of an approximate 10.2 acre tract of land zoned Downtown Commercial General (DC-G) more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"), has made an application for approval of an altemative development plan under the Development Code regulations which is on file in the offices of the City's Planning Department, and a copy ofwkich is attached hereto as Exhibit"B" and made a part hereof by reference (the "Alternative Development Plan"); and WHEREAS, on February 25, 2004, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the Alternative Development Plan; and WHEREAS, the City Council finds that the Alternative Development Plan is consistent with the Comprehensive Plan; and, WHEREAS, the City Council finds that the Alternative Development Plan, with the conditions imposed herein, if any, meets the requirements of the Development Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The fmdings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Altemative Development Plan is hereby approved for the Property. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of tiffs ordinance are severable. SECTION 4. Anyperson violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. Page 1 of 2 SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PRO~Y,~TTORNEY BY: Page 2 of 2 EXHIBIT A PROPERTY DESCRIPTION OF 10.136 ACRE TRACT SITUATED in the City of Denton, Denton County, Texas, and in the Alexander Hill Survey, Abstract Number 623 and being a part of a 19.33 acre tract of land as described in a deed from Campus Park Denton, LTD., to Campus Park Denton II, LTD., recorded in Volume 4911, Page 1952, of the Real Property Records of Denton County, Texas, and being Lots 3, 4, and 5, Block A of Denton Park 35 Addition, and addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet U, Page 418, Plat Records of Denton County, Texas, and being more fully described as follows: BEGINNING at a 5/8 inch iron rod found at the Northeast comer of the said Lot 5 of Denton Park 35 Addition; THENCE South 01 degrees 25 minutes 41 seconds East, with the East line of said Lot 5, passing a ~ inch iron rod found at a distance 211.05 feet at the Southeast corner of said Lot 5 same being Northeast corner of said Lot 3 and continuing with the East line said Lot 3 a total distance of 257.78 feet to a ½ inch iron rod set with a blue plastic cap stamped 'GEES INC." (hereinafter referred to as a ½ inch iron rod set) for a comer;, THENCE South 01 degrees 22 minutes 11 seconds East, continuing with the East line of said Lot 3 a distance of 164.78 feet to a ½ inch iron rod found for a corner; THENCE South 88 degrees 35 minutes I3 seconds West, with the South line of said Lots 3 and 4 a distance of 422.70 feet to a % inch iron rod set for a corner at the Southwest corner of said Lot 4; THENCE North 01 degrees 07 minutes 21 seconds West, with the West line of said Lot 4 a distance of 176.38 feet to a ~ inch iron rod set for a corner; THENCE North 89 degrees 52 minutes 48 seconds West, with the Southerly most South line of said 19.33 acre tract and the North line of Lot 1, Block 1 of the ACI Addition, an addition to the City of Denton, Texas, recorded in Cabinet L, Page 245, Plat Records of Denton County, Texas, a distance of 149.11 feet to a 5/8 inch iron rod found at the Southeast corner of Lot 1, Block I of Campus Housing Addition, an addition to the City of Denton, Texas, recorded in Cabinet R, Page 198, Plat Records of Denton County, Texas; THENCE with East line of said Lot 1, Block 1 of Campus Housing Addition the following courses and distances; North 00 degrees 00 minutes 00 seconds West a distance of 107.30 feet to a ½ inch iron rod set for a corner; South 89 degrees 58 minutes 10 seconds West a distance of 123.55 feet to a ~ inch iron rod set for a corner;, North 00 degrees 00 rod set for a corner; North 90 degrees 00 rod set for a comer; North 00 degrees 00 rod set for a corner; North 90 degrees 00 rod set for a corner; North 00 degrees 00 rod set for a corner;, minutes 00 seconds West a distance of 138.82 feet to a ½ inch iron minutes 00 seconds East a distance of 127.67 feet to a ½ inch iron minutes 00 seconds West a distance of 81.00 feet to a ½ inch iron minutes 00 seconds West a distance of 80.17 feet to a ½ inch iron minutes 00 seconds West a distance of 87.12 feet to a ½ inch iron North 90 degrees 00 minutes 00 seconds West a distance of 115.69 feet to a % inch iron rod set for a comer; North 00 degrees 00 minutes 00 seconds Wast a distance of 74.85 feet to a ½ inch iron rod set for a comer; North 89 degrees 29 minutas 58 seconds East a distance of 201.43 feet to a 5/8 inch iron rod found for a comer; North 00 degrees 03 minutes 54 seconds West a distance of 81.21 feet to a ½ inch iron rod set for a corner; North 89 degreas 26 minutes 45 seconds East a distance of 40.92 feet to a ~ inch iron rod set for a corner, North 00 degrees 33 minutes 31 seconds West a distance of 25.00 feet to a 5/8 inch iron rod found for a comer in the North line of the said 19.33 acre tract, said iron rod also being in the South fine of a 27.120 acre tract of land as described in a deed recorded in Volume 4430, Page 1273 of the Real Property Records, Denton County, Texas; THENCE North 89 degrees 26 minutas 28 seconds East, with the North tine of the said 19.33 acre tract and the South line of the said 27.120 acre tract a distance of 492.03 feet to ½ inch iron rod set for a corner; THENCE South 01 degrees 24 minutas 22 seconds East a distance of 346.74 feet to a ½ inch iron rod set for a corner in the North line of Lot 5, Block A of Denton Park 35 Addition, an addition to the City of Denton, Denton County, Texas, according to the plat recorded in Cabinet U, Page 418 of the Plat Records of Denton County, Texas; THENCE North 88 degrees 27 minutes 33 seconds East, with the North line of said Lot 5 a distance of 14.00 f~et to the point of beginning and containing 10.136 acras of land more or less. Bearing system is based on Campus Housing Addition, an addition to the City of Denton, Texas, recorded in Cabinet R, Page 198, Plat Records of Denton County, Texas. This document was prepared under 22 TAC 663.21, does not reflect the resutts of an on the ground survey, and is not to be used to convey or establish interest in real property except those rights and interasts implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. B 1.!q!qx~ AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 23, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT: ADP04-0002 (Russell Newman) Consider adoption of an ordinance concerning an Alternative Development Plan for tree canopy coverage for a warehouse on approximately 9.2 acres located in an Employment Center industrial (EC-i) zoning district. The property, commonly known as 600 Loop 288, is generally located east of Loop 288, south of Cypress Boulevard and west of Blake Road. The Planning and Zoning Commission recommends approval (5-2). BACKGROUND Applicam: Russell Newman, Inc. DeNon, Texas The purpose of alternative development plans is to provide a mechanism for those developments that do not meet the site design standards as outlined in the Development Code; but nevertheless, meet or exceed the objectives of the DeNon Plan and Developmem Code. The applicant is proposing to vary from the site design standards regarding tree canopy coverage. §35.13.7.A. requires 30% tree canopy coverage for developmems in an Employmem Cemer industrial (EC-i) zoning district. The applicam is proposing approximately 16.8% tree canopy coverage. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (5-2; Commissioners Holt & Roy opposed). ESTIMATED PROJECT SCHEDULE The subject property is platted. A building permit is required prior to developmem. A clearing and grading permit has been issued for the subject site. PRIOR ACTION/REVIEW February 25, 2004, the Planning and Zoning Commission recommends approval of an Alternative Development Plan for tree canopy coverage or a warehouse. February 20, 2002, the subject property was placed in the Employment Center Industrial (EC-I) zoning district and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, this property was zoned Industrial (I). ATTACHMENTS 1. Staff Analysis 2. Maps 3. Alternative Development Plan 4. Code Compliant Landscape Plan 5. Planning & Zoning Commission Meeting Minutes, February 25, 2004 6. Draft Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Request The applicant is proposing to reduce the tree canopy coverage from the required 30% to approximately 16.8%. The applicam is proposing to construct a warehouse facility on approximately 6.3 acres of a 9.2-acre site. The 6.3-acre site requires approximately 82,650 square feet (30%) of tree canopy. On December 3, 2003, the applicam submitted a final plat application for property located north of Cypress Blvd. and adjacem to the existing Russell-Newman facility. The applicam was proposing to develop a warehouse facility on the property, but abandoned his plans for that site in mid-January due to drainage and utility issues associated with the development of that site. The applicam then moved his developmem to the subject site, which is already final platted. A warehouse facility requires large unobstructed area(s) for the maneuverability of semi-trailers. The proposed site design (Attachment 3) locates the loading docks and truck area to the rear of the facility and provides open space in the from of the facility along the street(s), in order to proceed with the proposed developmem, the applicam developed a landscape plan that provided the required 30% canopy coverage (Attachmem 4). That plan requires that the proposed Live Oaks be planed in a double row on 30' cemers along Cypress Blvd. and Blake Rd. The applicam believes that the 30% canopy requiremem is too high for a warehouse facility (given the need for truck maneuverability), that the trees will eventually be overcrowded, and that the proposed landscape plan provides an attractive appearance along the street where its needed. The applicant has indicated that foundation plantings will also be planted, although not shown on the proposed plan. Existing Condition of Property Adjacem zoning: North: Employmem Cemer Industrial (EC-I) South: Employmem Cemer industrial (EC-i) East: Employmem Cemer industrial (EC-i) West: Employmem Cemer industrial (EC-i) Comprehensive Plan Analysis The subject site is located within an "Employment Center" future land use area. Employment Centers are intended to provide locations for a variety of workplaces, including limited light manufacturing uses, research and development activities, corporate facilities, offices, and institutions. Employment centers are also intended to accommodate secondary uses that complement or support the primary workplace uses, such a hotels, restaurants, convenience shopping, and child care. Development Code/Zoning Analysis Permitted land uses within the Employment Centers zoning districts, Employment Centers Commercial (EC-C) and Employment Centers Industrial (EC-I), include retail, office, restaurants and industrial. Because of the potential for so many mixed uses in the same area, both districts require 30% tree canopy coverage. However, the open space requirements are different: 20% for EC-C and 15% for EC-I. Industrial Centers zoning districts require 20% tree canopy coverage. Alternative Development Plan Criteria An applicant may propose an Alternative Development Plan, which meets or exceeds the design objectives of Subchapter 35.13 but does not meet the standards of Subchapter 35.13. The Alternative Development Plan provides the option to address the design criteria through a flexible discretionary process. The criteria for approval is as follows: 1. Preserve Existing Neighborhoods. The proposed ADP will have no impact on existing neighborhoods in the area. 2. Assure quality development that fits with the character of Denton. The proposed landscape plan will provide an attractive appearance along the street front of the proposed development. 3. Focus on new development to activity centers to curb strip development and urban sprawl. This development is not considered strip development or urban sprawl. Ensure that infrastructure is capable of accommodating development prior to the development occurring. Adequate infrastructure exists to service the proposed development. Staff Findings 1. Warehouse uses require relatively large unobstructed paved areas for truck maneuverability. 2. The proposed landscape plan will provide an attractive appearance along the street. 3. The applicant can meet the requirements of the code. Staff Recommendation Based on the fining that the applicant can meet the requirements of the code, staff recommends denial of the ADP. ATTACHMENT 2 Location Map NORTH M Scale: None ATTACHMENT 3 ADP Landscape Plan ATTACHMENT 4 Code Compliant Landscape Plan 1 2 3 4 5 6 7 8 9 10 !1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 1 .2 13 14 15 16 17 18 19 20 21 22 23 24 25 Attachment 5 PROCEEDINGS l COMMISSIONER MLrLROY: Good evening, and 2 welcome to the February 25th meeting of the City of Denton 3 Planning and Zoning Conunission, We'll start with the 4 Pledge of Allegience. 5 (Thereupon, the Pledges of Allegiance were 6 recited.) .. 7 COMMISSIONER MULROY: Tilank you. The next 8 item on our Agenda is consider approval of the February 9 1 lth minutes. Mr. Jolmson. 10 COMMISSIONER JOHNSON: ! think there's one 11 correction that needs to be made under 5A on tile minutes. 12 It does not record the vote, although, the -- there is a 13 recording itl the Reporter's minutes on page 52. The vote 14 was 6-0, And if we can make that correction, I'll move 15 approval. 16 COMMISSIONER STRANGE, second. 17 COMMISSIONER MULROY: Motion by 18 Mr. Johnson, seconded by Mr, Strange as amended. If 19 there's no further discussion, please vote. Motion 20 carries 7-0. 21 The next item is the Consent Agenda. The 22 Planning and Zoning Commission has reviewed these 23 applications, and has had an opportunity Io raise 24 questions regarding these items prior to this' 25 Page 2 consideration. If there's no discussion, we'll entertain a motion. COMMISSIONER ROY: I move approval. COMMISSIONER MULROY: Motion by Mr. Roy. COMMISSIONER HOLT: Second. COMMISSIONER MULROY: second by Ms. Holt for approval. Il' there's no discussion, please vote. Item carries 7-0. Next section of the Agenda, Section 4, first item is 4A for Alternative Development Plan for parking lot orientation for a six-unit apartment house. Mr. Reichhart. " MR. REICHHART: Thank you. On the overhead is a site location. This is on the north side of Prairie · between Bernard and Welch. Across the street is an existing UNT parking lot. The applicant also owns the adjacent multi-family development'at 930 prairie; That parcel has the parking between the building and the street. The applicant is requesting to develop in a similar manner, apartment in the back, parking in the t'ront. Due to what they're proposing in order to do that is to expand the parking from the -- oh, the site plan is located sideways, but I can get it on the overhead -- but expand the parking from the adjacent parcel across the Page 3 existing parcel. Share the common driveway between the two parking lots reducing one driveway onto tile street, and then construct a wrought-iron fence with stone columns across both parking lots, thereby creating a streetscape. And as a form of in-fill development and with the adjacent tr~rr- or tile trrcr parking lot across the street, staff believes that this is starting to -- or does meet the intent of the Code in trying to get that in-fill to work. It does minimize curb cuts and we are recommending approval. The applicant is here to answer any questions if you have, but I'd be -- I'm available to answer any questions, also. COMMISSIONER MULROY: ,~ny questions Of Mr. Reichhart? Okay. Thank you, Larry. If there is no discussion or questions, we would entertain a motion. Mr. Powdl. COMMISSIONER POWELL: MOVe to approve, COMMISSIONER HOLT: second. COMMISSIONER MULROY: Motion by Mr. Powetl, second by Ms. Holt for approval. If there is no further discussion, ptease, vote. Items carries 7-0. Next on the Agenda, Item 4B, Alternate Development Plan for canopy coverage for proposed warehouse facility. Mr. Reichhart. Page 4 I MR. REICHHART: Thank you. Again, on the 2 overhead is the location map for the subject property. It 3 is located on the south side of Cypress east of Loop 288. 4 Prior to the adoption of the Code, this property was zoned 5 industrial. Same owner of the Russell Newman facility is 6 proposing a warehouse facility on this site. They 7 originally wer~ looking at a site across the street right 8 behind the warehouse or the existing Russell Newman 9 facility to construct this warehouse. They figured they 10 could tie those two a little bit. Due to some devdopment I 1 constraints with utilities and drainage, they chose this 12 site. . . 13 The appticant has submitted a landscaped 14. plan. That's the proposed -- here's the Code Compliant 15 Landscape Plan. Thirty percent tree canopy coverage is 16 required within this zoning district. And if you recall 17 within the employmem zoning district, there is a number 18 of different uses that am allowed from restaurants, 19 offices, retail development and some light industrial uses 20 requiring a 30 percent tree canopy coverage, a minimum of 21 30 percent tree canopy. 22 So this is the plan that the applicant did 23 submit flint mints that requirement. They feel that tt;e 24 landscaping is very overcrowded and that they would prefer 25 to develop this site plan. it's about, if I recall, 16 -- PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 1 - Page 4 CondonsoItTM 1 2 3 4 5 6 7 $. 9 t0 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 5 a iittle over 16 percent coverage, 16.8 percent canopy coverage. And, again, the applicant believes that because of the warehouse facility, the need for that large open truck maneuverable -- maneuverability area to the rear of the site, that this plan meets the intent of the Code by providing that landscaping in the public area that would be visible from anybody in the .public right-of-ways. Although, there are a number of constraints when developing industrial development, staff is recommending denial of this plan. And I'd be happy to answer any questions. I haven't seen the applicant here-- COMMISSIONER MULROY: Yeah, he's right behind you. MR. REICHHART: oh, I'm sorry. The applicant is here and I'm sure he's willing 'to speak on this topic, but I'd be happy to answer any questions that you would have prior to that. COMMISSIONER MULROY: MS. Holt. COMMISSIONER HOLT: Yes. Could you show me where the truck would go exactly and where the entrances are? MR. REICHHART: Typically, the -- this is Cypress, and the mouse is continually freezing. Just a little bit to the left where that arrow is pointing, that Page 6 drive right below the north arrow as on there, is where the trucks would be coming in. They'd go across heading south on this plan. And that whole area on the bottom of the screen is the track loading area. So the loading docks are screened from the public right-of-way. All of that activity would be in the rear of the building. That entixe area back there is mostly paved. That little area right below the -- in this area right here is open gravel. They could store some trucks there temporarily while they're unloading and before they move on to the different areas. But all of this area back here is the loading dock area. So the trucks would come in, load through this area, either exit Blake once that's constructed or go back out to Cypress. COMMISSIONER HOLT: So there wouldn't be any activity up here in the front or 6n the side, truck activity. MR. REICHHART: NO. This area up here is for parking. There is no truck activity in the front of the building. COMMISSIONER HOLT: Thank you. COMMISSIONER MULROY: Mr. Powell. COMMISSIONER POWELL: I[' 1 read the staff findings correctly, you say that this kind of building 1 2 3 4 5 6 7 8 9 i0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 needs to have a large unobstructed paved area. MR, REICHHART: This type of use, yes. COMMISSIONER POWELL: Correct. I'm sorry, this type of use. And then you said the proposed landscape plan will provide an attractive appearance? MR. REICHHART: YeS. COMMISSIONER POWELL: Then you say you don't recommend it. MR. RE[CHHART: Right. " COMMISSIONER POWELL: Help me out here a little bit, MR. RE[CHHART: WC believe the applicant can meet the Code rcquirzm~nt. COMMISSIONER POWELL: SO you're saying that he needs to put more landscape and still be able to -- you're saying he could still be able to do business there. MR. REICHHART: Yes. COMMISSIONER POWELL: The difference between the applicant's application and what you're saying is simply the amount of landscaping? · MR. gEICHa,U~T: eight. And one of the biggest difference is is along Cypress and Blake where the Code Compliant Plan is really doubling up on the trees. Staggered row, thirty foot on center, but the staggemess is only ten, 15 feet apart, and the applicant believes 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 8 that eventually those trees will be overgrown and grown into each other and not be as attractive as what is being proposed. I don't disagree with that, but there is the ability to add more trees. And the one topic that, and i really didn't broach in the subject or in the staff report is -- and the applicant will cringe again if he hears this. But a smaller building would allow more open space. And we're not proposing that the applicant goes to a smaller building. But there are alternatives to the landscape plan: COMMISSIONER POWELL: Mr. Chairman, if I may still. COMMISSIONER MULROY: YeS, sir. Mr. Powell. COMMISSIONER POWELL: Thank you. You're saying that even though it provides an attractive appearance and it is a landscaped plan 'and he is making an effort here, you're going -- because it doesn't meet the letter of the Code as far as the number 6f trees, bushes or whatever, you're recommending against it? MR. REICHHART: Yes, sir. I don't think -- we're at the point where we don't believe a 16 percent tree canopy coverage where a 30 percent is required is meeting the full intent. It wi[l'be a decent landscape PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 5 - Page 8 4 5 6 7 8 9 10 12 13 14 15 16 17 19 20 21 22 23 24 25 1 2 3 4 5 6 7~ 8 9 10 il t2 13 14 15 16 17 18 19 20 21 22 23 24 25 CondcnscltTM Page 9 across the front of the building. There will be foundations plantings that aren't shown on the plan. But 2 we don't believe that a little over 50 percent of the 3 requirement meets the intent of the Code. 4 COMMISSIONER POWELL: Thank you. 5 COMMISSIONER MULROY: Thank you, 6 Mr. Pow¢lL Mr. Roy.. 7 COMMISSIONER ROY: Cypress Boulevard and 8 Blake Lane 'are not, as indicated on our drawings -- 9 MR. REICHHART: They're not fully 10 constructed, correct. 11 COMMISSIONER ROY: And do you know when 12 roughly when that's supposed to be done. MR. REICHHART: I believe they're supposed to be starting construction within this year. It is a project that the City is going to be constructing. David Salmon is here -- COMMISSIONER ROY: SO it's in the near future? future. MR. REICHHART: Yes. It is in the very new COMMISSIONER MULROY: Like Blake Lane and Cypress will be built? MR. REICHHART: ,Yes, sir. COMMISSIONER ROY: On tile canopy coverage, .13 14 15 16 t7 18 19 20 21 22 23 24 25 Page 10 I know we've been talking a lot about tree ordinances and everything, is them anything coming down the pike hero 2 about changing our tree canopy requirements? Is that on 3 the plan for reconsideration or is that pretty well set 4 and agreed? 5 MR. REICHHART: NO, I don't think -- it 6 hasn't been a topic that's really been raised during any 7 of the quarterly reviews. We've talked about it 8 internally. We did talk about it a little bit during the 9 landscape or the tree preservation that another 10 alternative would be to maybe increase tree canopy 11 coverage or revisit that. But it has not taken place. 12 COMMISSIONER ROY: ~rhank you. 13 COMMISSIONER MULROY: Mr. Strange; ' 14 COMMISSIONER STRANGE: This slide you had 15 before on the west side of that building, your Code 16 Compliant Plan, you've got trees showh along the.svest.$ide t7 of the building? 18 MR. REICHHART: YeS. 19 COMMISSIONER STRANOE: And you've got those 20 in your -- 21 MR. REICHHART: YeS. I don't, but yes, 22 they have -- 23 COMMISSIONER STRANGE: okay. Well, Code 24 Compliant, those are shown there and that would go towards 25 Page 11 the 30 percent. When you look at the ADP Plan, there are no trees on that west side. MR. RE1CHHART: The applicant can speak on that. But that is the parcel -- this is -- right now, currently one parcel that goes all of the way out to Loop 288. The applicant is proposing to subdivide that parcel. He's not really sure what he's going to use -- you know, it might be an expansion of'this use. It might be a retail use. It might be a restaurant use. And I think the applicant would be better able to address why they're not proposing those trees. COMMISSIONER STRANGE: I don't see that as interfering with truck traffic and it could go part of the way towards satisfying the difference between the 16 and the 30 percent? I should ask someone else that? MR. REICHHART: YOU should ask the applicant that, I believe. COMMISSIONER STRANGE: okay. Thank you. COMMISSIONER MULROY: All right. One more question for Mr. Reichhart. Ms. Holt. COMMISSIONER HOLT: Mr. Reichhart, have we tried to work with the applicant to come up with another solution to adding more trees? MR. REICHHART: oh, I think we can and the applicant will attest that we have worked very closely on Page 12 this. Them is a difference of what we can do, what we can't do, working that out, but I don't think this is a -- this has not been a vindictive approach between either. We have worked it out, worked together to try to find a Code Compliant Plan that could be presented. And if some of you have been out to the site, they are under construction currently on this. And, again, the applicant can speak on this. He believes our requirements are too high for an industcial type of use. And this is the process that he has chosen to bring that forward and try to come up with something a little bit more -- what he believes is a little bit more reasonable for this type of usc. But I don't think that -- we have worked together. COMMISSIONER MULROY: okay. Thank you, Mr. Reichhart. And the applicant is here. MR. REICHHART: Yes, sir. COMMISSIONER MULROY: And would like to address the Commission. MR. M~R.TINO: I don't know whether i have 15 minutes or three minutes. COMMISSIONER MULROY: well, we're -- would you state your name, please. MR. MARTINO: I'm Frank Martino. ?LANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 9 - Page 12 4 5 6 7 8 9 10 11 12 13 14 15 16 17 15 19 20 21 22 23 24 25 ! 2 3 4 5 6 8 9 10 11 12 13 14 15 i6 .. 17 18 19 2O 21 22 23 24 25 CondenseltTM Page 13 COMMISSIONER ['OWELL: Mr. Martino, speak into the mike, please. MR. MARTINO: I'm Frank Martino. I've been associated with Russell Newman since 1949. I thought I might give you a little brief background because some of you may not be familiar with our company. We came to Denton in 1939 and we started offwith a little small building on Oak Street. And that 'was our beginning. And then next we rented the Masonic Lodge, later built a story within that Masonic Lodge in the auditorimn. And when we found that that was too small went dowu next to the Record Chronicle and built a factory and then added on to it, a total of 30,000 square feet. And we thought that would last us forever. And then as the building -- as the business began to grow and grow, we decided we needed to get some land that we could grow indefinitely in the future of the company. So we went out to Loop 288 and met with Mr. Blassingame and negotiated for the property on there and negotiated the purchase of 49 acres of land, and we built our first project out there. Wc have built three additions to that, and we just finished, an addition that we just finished, just, I guess, last year. We had proposed to build 140,000 Square feet adjacent to that building behind it and Page 14 another 70,000 behind that for a total of 210,000 square feet. The reason for that was that we just bought another company itl Alabama called Klinards. They occupied 500,000 square feet. And when we wouldn't buy their building from them, they required us to move all of their inventory, that inventory va: had bought within two weeks. So we moved 140 tractor trailers here and then we're receiving 150 more tractor trailers in from the manufacturers that were confing into us. We had at one time out here on Cypress 100 tractor trailer trucks parked because we didn't have adequate room. ' ' So when we started to plan our building to increase the space, we don't know whether this is going to last us for a year, two years, or five years or what, but we wanted to build it so we could run fork trucks in between the two buildings and so forth~ .. When we got started on that, we discovered when we did a drainage plan, that we would be responsible for the three or 400 acres south of us and to the west of us because no one had taken care of may drainage in the past. And where we were going to put the building, we would have to put a detention pond of over three acres just to hold for that one building that we were going to build there. 1 5 6 7 8 9 10 11 12 13 14 15 I6 17 18 19 2O 21 22 23 24 25 Page 15 I don't know, but in my lifetime, I don't think we would have gotten that building built there and we needed to get a building because we've rented every warehouse that we can find in Denton County. We've rented everything we can find with a dock -- loading dock. This plat was already platted and we said, there's a solution. We've got to have a building someplace or build one in another town. And our preference was io build hem where we Were. When we bought the acreage, we were hoping to build for the long, long term. And that was what we were trying to do. And then when we got started on this, we got involved in tile landscape, and I want you to know that when we built that building out on Loop 288, we received an award from Beautification as one of the beautiful industries in town because of the Live Oaks we'd planted and so forth. And we've tried to preserve these trees in everything that we've done. We believe in a beautiful Denton. I am concerned that the canopy coverage on a warehouse type of conslruction is excessive for the possibility of what you can do. When we first built out that we were not -- what are we called -- an employment center. We thought we were there for an industry and could just continue to go on back. Welt, we have some problems to the neighbor to the leR because we found out 1 2 3 4 5 6 7 8 9 10 I1 12' 13 14' 15 16 17 18 19 2O 21 22 23 24 25 Page 16 now there's a national wetlands to one side of us, so the drainage has to be controlled. We figured that we probably have built -- this will be the last building we'll ever be able to build on that property because of the drainage and the wetlands and so forth. I have given you a plan that would make the canopy coverage with what is required. If you were to talk ~o Nell Sperry, he would tell you that what you're doing here is unwise and foolish to the trees. We would be building a row of trees over a sewer pipe all the way down one street. And that doesn't make any sense to me. - We'd be building a row of trees down a water line, over a water line. That doesn't make any sense to me. But I don't know. ' ........... I understand that we're thc fkst warehouse industry that has come in under the new zoning landscape and zoning and I have -- since we've gotten into this, I have been to every industry in town and there's not a one that will comply with what we're doing and what we're requesting to do here. There's not -- P~terbilt. The new Copper plant. There's none that would come even close to what we're being required to do here in the new zoning law. And I'm proposing a zoning -- for landscaping there that would allow Live Oaks which are PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page I3 -Page 16 CondcnscItTM Page 17 I going to grow 30 or 40 feet tall and they're going to have 1 2 a spread of 40 to 50 feet to let those trees grow and 2 3 become beautiful. 3 4 If you'll look at our other side, you've 4 5 seen this is what we've done, and they are beautiful. And 5 6 wc have, we think, a very attractive industry there, and 6 7 we would like to ask fora variance to do it as we're 7 8. suggesting here. We want to keep Denton beautiful. We g 9 are not trying to skimp or cut down. You asked me to 9 10 down my building. I've cut it down from 210,000 square 10 11 feetto 130,000 square feet. What you're going to ask me 11 12 to do pretty soon is go to some other town; I need your 12 13 help. Thank you. 13 14 COMMISSIONER MULRO¥: Any questions for 14 15 Mr. Martino? I think Mr. Strange had one. 15 16 COMMISSIONER STRANGE: Mr. Martino, in 16 17 looking at these two plans, on the west side of that drive 17 18 coming in there under that north sign, under the Code of 18 19 Compliant Plan, you had -- there were trees shown there. 19 20 You have none there. Is there a reason you didn't want to 2O 21 put trees along that? 21 22 MR. MARTINO: well, the reason for that is 22 23 that we feel like there's going to be a building in front 23 24 of there somethue and to plant a bunch of trees in the 24 25 back yard just to plant trees really doesn't make a lot of 25 Page 18 i sense. That was not even property that we were using in 1 2 our building site here. We were taking their property to 2 3 put those trees in just because we had to have that many 3 4 trees to -- now, we own all of the property. 4 5 COMMISSIO~ ST~OE: SO you own all of 5 6 the property -- 6 7- MR. MARTINO: $0 don't let me mislead you. 7 8 COMMISSIONER STRANGE: Right, right. 8 9 MR. MARTINO: we own all of the property, 9 10 but we've tried to divide in two segments. One would be t0 11 the warehouse and manufacturing area. Now, in this -- let 11 12 me be honest with you. In this right now, currently, we 12 13 am building about 40,000 square feet that we're no~ going 13 14 to occupy immediately and we're going to make that 14 15 available to the chamber and try to locate people here, 15 16 16 also. 17 But that's -- we will be using that. We 17 18 have a sizable warehouse in Cisco, Texas and we are using 18 19 the Trim Systems out at the airport. And we're using the 19 20 old Russell Newman Factory in Pilot Point of 30,000 square 20 21 feet. We're trying to use everything that we can right 21 22 now, but this is -- our plan is we don't feel like a 22 23 warehouse ought to be on Loop 288. We don't feel like it 23 24 would be conducive to 288. 24 25 COMMISSIONER s~rc~OE: t guess my thought 25 Page 19 was if you do own that property and as you develop that in the future, you're going to have some sort of a landscaping requirement to meet there as well. MR. MARTINO: I have no problem with doing that because that's going to be beautiful. COMMISSIONER STRAN'OE: [ WaS just wondering if it hetp get the -- closer to the 30 percent now, if there was a reason not m put trees across that -- MR. MART~'NO: If I put trees across there, he would have to do his 30 percent and h~'d have to do more than what I'm doing on the -- where I've already put this on his property. We would compound the problem on that, Mr. Strange. COMMISSIONERSTRANOE: clarify where you're saying he. You own the property -- MR. MARTINO: We Own the property. If we develop something on that other piece of property, then we have to do a 30 percent canopy. We cannot regard that as part of the canopy. It has to be a new canopy. And so what we've done, we've taken part of that property just to satisfy our 30 percent canopy. COMMISSIONER STRANGE: I'm jUSt looking for a way to help bridge the difference between 16.8 percent and 30 percent in my own mind. That's all -- that was the reason for my question. Page 20 MR. MARTINO: well, if you'll notice, I've got trees on top of trees. And I've got a spread of tn:es there that will never mature to good trees. And I've got feet systems there that Nell Sperry would frown on very heavily at me for doing. COMMISSIONER STRAIqGE: Thank you. COMMISSIONER MULROY: MS. Holt. COMMISSIONER HOLT: YeS. A couple of things. One, you've been in Denton a long time and you do have a beautiful piece of property out there and we appreciate those beautiful trees that you have planted and since you are from Denton and have taken an interest in Denton your whole life, that's Why we have a hard time when new people come in and want to do someflfing like this and they don't want to meet the Codes and they don't want to put any trees, and that'g part of the reason that we're trying to up our landscaping, so that we will have a beautiful community and people will come in like yourself and put trees in because they wanted to. That's probably why you put those in to begin with. }em. MAcTree: ~O. We wanted it to iook beautiful -- COMMISSIONER HOLT: That's right. MR. MARTINO: If you'll not[ce what we've built out there, we've even tried to make our building PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 17 - Page 20 CondonseltTM 5 6 7 8 9 i0 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 21 more attractive than what it was even. I think this, Ms. I-Iolt -- I think that the canopy coverage for industrial warehousing should be looked at and should have a different Code than what it has and my Code that I have where I am right now is not one that I -- well, it's one that has been given to me by the development planning, and Page 23 the tree because the roots depending on the material of the water line and the sewer line, the mots may get into that. If you have to dig them up, obviously it's going to be harmful to the tree. These trees will grow on the Code Compliant Plan. COMMISSIONER HOLT: Okay. One more it's a Code that I think would be restrictive to where the City,'it would be very difficult to try to attract warehousing and inventory tax property to come into'this town because of the size and space of building that you need and the truck area that you need and so forth. COMMISSIONER HOLT: well, I have a question, I guess, for Mr. Reichhart about planting trees like this is shown on the Code Compliant Plan. If that is an okay way to plant trees and if it is over the water mains and over, like you said, the sewer lines, whatever else is out there, if those trees will develop, or are we planting them too close together wher~ they won't develop? MR. REICHHART: It depends on the scheme you're looking for. As you plant trees closer together they will not develop their mature shape, canopy or size. They're competing for water, nutrients, they're crowding each other and they won't get that -- the full crown that you're looking for. Typically, on a street, you know, you want 7 8 9 10 1I 12 13 14 15 t6 17 18 '19 20 21 22 23 24 25 question. Have you thought about maybe instead of a 16 percent coverage, maybe bumping it up to say' 22, 25 percent coverage. That would be adding in a few more trees here and them'?. Would that work for you? MS. MARTr~O: MS. Holt, I have -- if you'll look at the plan that I have suggested, I don't like the trees I have in the back. I don't like those at all because Pm.going to have trucks that am going to be backing into their foliage and their spread. I've got truck docks all along that back them, and I don't like that, but that was an attempt to try to get trees in there for the City. I think that we have tried to put a tree every place that we felt like that it was reasonable to put a tree and not -- and still be able -- with this plan, I can still get to the water line..I can still get to the sewer line. The other plan, I cannot get to the sewer line and I cannot get to the water line. And if there's a problem, then a tree is going' to have to come down. · Page 22 to have a little bit of space, I believe, between the trees, you know, you're looking for the canopy over the street. So if you're planting a tree that's going to get ' a 40-foot spread, you know, you might want to have it between 40 and 45 because, I mean, that's the ultimate and that's 50 years out. So you want to try to get it so they're getting close to each other, but not necessarily growing into each other. The Code Compliant Plan does add more trees in there than you typically would see. On the flip side, I have seen designs where they've done that intentionally in order to try to create an alley or a boulevard look with your trees. If you want a pure, good-looking tree, you want them'spread out ..... farther. I don't know if that answers your questions, but -- COMMISSIONER HOLT: NO. MR. REICHHART: okay. COMMISSIONER HOLT: okay. Let me ask it again. If you plant them over the lines, water lines, sewer lines, all of that, is that harmful. And if we plant them like they are on this Compliant Plan, are they not going to develop? I mean, are we just-- MR. RE[CHHART: okay. It's probably more haraffut to the water llne and the sewer tlne than it is to 18 20 21 22 23 24 25 Page 24 1 And I don't know -- I've lived in Denton, 2 and I've had sewer problems in every place that i've 3 lived, and I don't know whether that's unusual, but I just 4 don't tike to plant trees over sewer lines or over water 5 lines. 6 COMMISSIONER HOLT: Thank you. 7 COMMISSIONER IVIULROY: Mr. Roy. 8 COMMISSIONER ROY: I think this might be a 9 good one for staff to answer, Larry. The applicant has 10 made a conm~ent that this is a requirement, an excessive 11 requirement for a warehouse building. Now, if this were 12 an office building, would there be different canopy 13 requirements7 It would he the same, wouldn't'it? 14 ....... MR. RE[CHH.6~RT: Within this zoning 15 district, whether it's an office, a restaurant, or 16 warel~ouse, it's going to be the same, 30 percent. t7 COMMISSIONER ROY: SO tile fact that it is warehouse is not -- MB.. R~ICHI-La~RT: it goes to the zoning district, not the typical use. COMMI$SIONFAR ROY: Another question, have we ever given a variance or approved and ADP that reduced the canopy requirement? MR. REICHHART: NO. But this is the first one that's requested one. PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 21 - Page 24 CondcnscltTM 1 2 3 4 5 6 7 8 9' 10 11 12 13 14 15 t6 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 lg 19' 20 21 22 23 24 25 Page 25 MR. MARTINO: ! think that m{ght be -- how old is the -- MR. REICHHART: TWO years. MR. MART[NO: AbOUt tWo years. And I believe that we're the first industry to come in under this with warehouse and industrial plan, to my knowledge. MR. REICHHART: You're correct. MR. MARX[NO: And what I'm saying is it's hard. I have spent more time on this one building than I have on building'my factories in' Semom, Stanford; Cisc~, Breckenridge, St. Joe, Pilot Point all together. COMMISSIONER ROY: And that's because of the canopy coverage, sir? MR. MARTINO: NO, ]VII', Roy. A lot of it was because of drainage that we were -- inhcritexl, which absoIutely stopped us from building where we were. When wz bought that property we w~e looking for a place to extend, so to speak, forever. And I think our extension is pretty well over now. When we bought thc property, we were looking at a 49-acre industrial tract. And now we have a different situation and I understand that and we cope with that. COMMISSIONER ROY: Thank you, sir. COMMISSIONER MULROY: Mr. Johnson. COMMISSIONER JOI:~qSON: I'm a little bit Page 26 contused. Where arc the sewer and the water lines running? MR. MARTINO: The sewer line is running right down Cypress, right where you see -- it you get this plan out. COMMISSIONER JOHNSON: I have it. MR. MART1NO: tt rubs down Cypress Boulevard, and it runs down about five feet off the. curb. COMMISSIONER JOHNSON: Okay. And how far -- so you're saying the trees that you've proposed putting in will not interfere with the sewer? MR. MARTINO: NO, because they'll be set back ............ COMMISSIONER JOHNSON: Right. MR. MARTINO: In the other plan, I'm "' setting the trees in the center of the land so that the roots can grow in every direction. COMMISSIONER JOHNSON: :~ight. MR. MARTINO: And we would have no Problem· getting down to a sewer line then. COMMISSIONER JOHNSON: okay. And, typically, water lines are separated from sewer lines somewhat. So where does the water -- MR, MARTINO: The water line is on Blakee. COMMISSIONER JOHNSON: On Blake. 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 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 t7 18 19 20 21 22 23 24 25 Page 27 MR. MARTINO: On Blake. COMMISSIONER JOHNSON: Okay. And your proposal does have trees down Blake? MR. MARTINO: Yes, sir. COMMISSIONER JOHNSON: But, again, displaced from the main -~ MR. MARTINO: Again, they sit back on that, yes, sir. COMMISSIONER JOHNSON: okay. So your point iS that you can quite easily put in the nmnber of trees the City would like you to, but then you're going to encroach on the sewer line and the water main? MR. MARTINO: well, can I rephrase what you've said?. COMMISSIONER JOHNSON: Okay. MR. MARTINO: Youtve said "quite easily." I would say that we can put the number of trees that are required, but it would encroach upon the water and the sewer line. COMMISSIONER JOHNSON: Okay. Thank you. COMMISSIONER MULROY: Mr. Powell. COMMISSIONER POWELL: In the realm of discussion with what Mr. Roy said, if this were a restaurant or if this were an office building, it wouldn't have the big trucks coming in. And if it's a warehouse Page 28 factory type of situation such as he's trying to get here, he's going to have semis confing in and out all day and probably at night, I'm guessing, sir. It's just a different situation than it is if it were an office building or restaurant or whatever. MR. MAR?n,;o: well, if it's an office building, you can put a lot of tree islands out there that the cars can park under. But you can't park a truck, an 18-wheeler under a tree very easily. COMMISSIONER POWELL: That was the point I was hying to make and you've helped me out greatly, sir. Thank you. COMMISSIONER MULROY: Any fllrther questions for Mr. Martino? If not, I would like to make a comment. We don't -- I hope we don't lose site that the Alternative Development Plan was proposed in conjunction with the Code -- I mean, understanding that the Development Code was going to, as best it could, you know, raise the standards and thc quality and the esthetics for development in Denton. And at thc time, recognizing it's very, difficult to proscribe what is going to work in each and every case. To get support of the community was the conc~t of the Alternate Development Plan. And the outcome of that is if an individual applicant could come PLANNING AND ZONING COMIvIISSION FEBRUARY 25, 2004 Page 25 - Page 28 CondenseltTM 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 29 forward and demonstrate the quality and the esthetics in the development, that that would be -- not have to meet each and every requirement of the Code, but show an end product that, in fact, raised the quality standards and the esthetics, you know, the visual standards. So, you know, I don't want us to get lost in percentages of tree canopy and -- even though it is very relevant. You know, ah industrial truck use certainly can't support as much -- economically cannot support as much canopy as an office complex. But leaving 1 2 3 4 5 6 7 8 9 10 Page 31 Mr. Powell. COMMISSIONER POWELL: MOVe to approve the hop as requested by the applicant, COMMISSIONER JOHNSON', second. COMMISSIONER MULROY: we have a motion by Mr. Powell, second by Mr. Johnson. Discussion? Mr. Roy. COMMISSIONER ROY: The ADP iS supposed to meet or exceed the objectives for the Denton Plan on the Development Code. And I fl~ink we have to wrestle with whether or not this nde does that. those percentages to the side, the purpose of the Alternate Development Plan is to come forth with your vision, your quality of development. And if it's of a quahty that's acceptable or commensurate with what the Code is trying to accomplish, then that was the purpose of it. So my only question on the specific then, Mr. Martino, would be along with Mr. Strange, on the west side, I wasn't looking so much as to percentage of canopy gained as to some type of visual improvement as someone who's coming down Cypress Street, Now, you're anticipating developing that or not? MR. MARTINO: well, we understand with an agreement that we have with the City that there wiI1 be a light placed at Cypress and Loop 288. And that Cypress Page 30 will go all of the way to Mayhill and it will be the other major thoroughfare besides East McKinney that will get you 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm struggling to see a good reason because once we approve a variance on tree canopy and this would be our first one, every developer is going to come in and ask for this same thing. So there's got to be a good reason. And despite our questions, there doesn't seem to be an overriding hardship by putting in thc tree canopy according to the Code. I understand the arguments, but, you know, there really needs to be a good one or we're dead in the water if we just willy-nilly approve tbfis without good reason. The only reason that I can see is one that the applicant mentioned that I hadn't thought of is that if this were an office building this big, there would be a large parking lot of places for people to park. Them would be opportunity there to put in additional tree canopy in the parking lot. This being a warehouse does pose some 1 2 3 to the high school and to Mayhill. 4 We understand that Blake Street is being 5 cut through primarily for the County so that thc County 6 can get their people off because if anybody has been on 7 Loop 288 anytime in the last year, you try to avoid it 8L like the plague. And this will give people an alternate 9 route to go to. We think that there will be a development 10 there very shortly. 11 COMMISSIONER MULROY: And would you then 12 . carry forth that line of trees then to the west? 13 MR. MAR?tNO: ^bsolutely. Absolutely. . t 4 COMMISSIONER MULROY: And would give us a 15 visual barrier to the side and the back of your propc'xty? 16 MR. MARTINO: ^bsolutety, What we want to 17 do there is -- this building that we're building is a tilt 18 wall slab, a flit wall building with crushed rock and it's 19 going to try to mirror what our office building looks like 20 across fl~e stax:et, tt will be 24 feet underneath bar 21 joist, go it will be a tall building. But it should be a 22 very attractive building. 23 COMMISSIONER MULROY: Thank you, 24 Mr. Martino. Any further questions of Mr. Martino? Thank 25 you, sir. Larry, any further continents? Then we ~vill -- Page 32 3 unusual requirements in my nfind. I don't see that the 4 truck traffic is going to be impacted by the trees. I ' 5 don't go along with the argument with the trees over the 6 water lines and the sewer lines. I think we do that all 7 of the time, I don't see that as a major reason. So 8 struggling trying to convince myself that there's enough 9 hardship here to justify supporting this plan. Thank you, l 0 COMMISSIONER MULROY: Ms. Holt. 11 COMMISSIONER HOLT: I a~ with what 12 Conunissioner Roy said. If we -- if we start giving these 13 ADI"S for.landscaping, that's just going to be a Pandora's 14 . Box and the ^oe's that we have given in the past have been 15 on sites where they have offered us something when 16 something is taken away. If they couldn't do the t 7 landscaping, then they did something else. Of if they 18 couldn't do the parking like we wanted, they gave us more 19 landscaping, but there's always been a trade-off. 20 And I just -- I really hesitate'to do this 21 on our very first case because -- my old saying.' We've 22 got to start raising the bar and this is the place to do 23 it. Thank you. · 24 COMMISSIONER MULROY: Thank you, Ms. Holt. 25 Mr. Strange. PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 29 - Page 32 CondenseltTM 5 6 7 8 9 10 11 12 13 ~14 15 16 17 18 19 20 21 22 23 24 25 2 3 4 5 6 7 8 9 l0 11 12 13 16 17 18 19 20 21 22 23 24 Page 33 COMMISSIONER STRANGE: well, I agree with what you both are saying. But I also look at the practicality of this, and I think part of the difference is, Joe, that this is not a restaurant or an office where we do have parking islands and also when you take the dimensions of this property and divide it out with the number of trees that are there. He's basically planting ·ese trees 38 feet apart, less than 40 feet apart.~ And for a Live Oak, that should develop into plenty of canopy over time, in my opinion. I do see some problem with crowding these in, and as Larry says, restricting their ability to grow and to develop. So I kind of see us in a -- between a -- a difficult spot here in it being the first one we're looking at, but I also think there are practical issues here with regard to the fact of the types of uses that we're talking about. There's a big difference between warehouse and office. And I also think that the distance between these trees and their ability to develop will create an adequate canopy, and, therefore, I think there's reason to look at it. COMMISSIONER MULROY: Thank you, Mr. Strange. Mr. Johnson. COMMISSIONER JOHNSON: And I'll echo that. And the other thing is is tt~at this is a big building : 25 Page 34 that's a warehouse and it's a large footprint that you don't have a lot of extra space that you can do landscaping on. By necessity you can't plant a tree in the xrfiddle of a building. You can in the middle of a parking lot. tf this were an office building or a restaurant with a large parking area, then ! would agree with you absolutely. But I believe that given the type of building and recognizing that what this land is right now which is -- basleally is open. There's no trees out there at all. What you're doing here is a step up from what's there. It is consistent with the type of building and the use that's planned. And I think it's a reasonable application for a variance to the Code that we have. COMMISSIONER MULROY: Thank you, Mr. Johnson. Any further cormnents? I would just reiterate that we -- as the Cede was. being put together, · we reco~ize one size wouldn't fit all. And you have a variety of uses on that one zoning classification. And this is the most intensive crowded use and the less easily to facilitate all of your landscape requirements and the purpose of the AD? is for an applicant to come forth with something that's going to be visually acceptable and of a high quality. And reflective of experience of Mrl Martino 1 2 3 4 5 6 7 8. 9 l0 I1 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 I5 16 17 18 19 20 21 22 ,23 24 25 PLANNING AND ZONING COMMISSION FEBRUARY 25, 2004 Page 35 and thc existing properties, you know, I would support this. Any other commenls or diseusslon? If not, we have a motion and a second in favor of the ADP. Please vote. Thc motion carries 5-2, (COMMISSIONERS HOLT AND ROY VOTINO IN OPPOSITION.) COMMISSIONER MULROY: Okay. Oar next listed item 4C will be deferred until after we hear a public l~earing item of 5B..Okay. We'll move to thc next part of the Agenda, public hearings, Section 5. Page 36 Page 33 - Page 36 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATIVE DEVELOPMENT PLAN ON APROXIMATELY 6.3 ACRES OF LAND DESCRIBED AS LOT 1, BLOCK B OF THE RUSSELL-NEWMAN ADDITION WHICH IS GENERALLY LOCATED EAST OF LOOP 288, SOUTH OF CYPRESS BOULEVARD AND WEST OF BLAKE ROAD, COMMONLY KNOWN AS 600 LOOP 288, WITHIN AN EMPLOYMENT CENTER INDUSTRIAL (EC-I) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR THE PURPOSE OF REDUCING TREE CANOPY COVERAGE; PROVIDING FOR A PENALTY IN THE MAXIIVlUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (ADP04-0002) WHEREAS, Russell Newman, Inc. has applied for an alternative development plan which is on file in the City's Planning Department, a copy of which is attached hereto and made apart hereof as Exhibit "A" (the Attemative Development Plan), on approximately 6.3 acres of land described as Lot 1, Block B of the Russell-Newman Addition, an addition to the City of Denton, Texas (the "Property") located in a Employment Center Industrial (EC-I) zoning district; and WHEREAS, on March 2, 2004, the Planning and Zoning Commission recommended approval of a Alternative Development Plan for reduced canopy coverage; and WHEREAS, the City Council finds that the Alternative Development Plan is consistent with The Denton Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. The Alternative Development Plan is hereby approved for the Property. SECTION 3. If any provision oftkis ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of th/s ordinance are servable. SECTION 4. Anyperson violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. 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 (i 0) days of the date of its passage. PASSED AND APPROVED this the ~ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 EXHIBIT A 37 Live Oak (16.37% ± Canopy' Cover'age) Blake Road PAGE 3 AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET March 23, 2004 Economic Development Mike Conduff, City Manager~'r~'/~ SUBJECT Consider adoption of an ordinance establishing an economic developmem program under Chapter 380 of the Local Government Code for making grants of public money to promote economic development and to stimulate business activity in the City of Denton; approving an economic developmem program gram agreemem with Windjammer, Ltd. regarding the developmem of approximately 134 acres of land commonly known as Unicorn Lake which is generally located on the west side of 1-35E north of State School Road in the M.E.P. & P.R.R. CO. Survey, Abstract No. 950, in the City of Denton, Denton County Texas; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND Staff will brief City Council regarding the proposed Section 380 Agreemem in the March 23, 2004 Executive Session. The proposed agreemem and ordinance has been provided to City Council in the Attorney/Cliem Status report. Respectfully submitted: Linda Ratliff, Director Economic Development Department C:\DOCUME I}lcrichar\LOCALS I\Tcmp~380AGR I.DOC ORDINANCE NO. AN ORDINANCE ESTABLISHING AN ECONOMIC DEVELOPMENT PROGRAM UNDER CHAPTER 380 OF THE LOCAL GOVERNMENT CODE FOR MAKING GRANTS OF PUBLIC MONEY TO PROMOTE ECONOMIC DEVELOPMENT AND TO STIMULATE BUSINESS ACTIVITY IN THE CITY OF DENTON; APPROVING AN ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH WINDJAMMER, LTD. REGARDING THE DEVELOPMENT OF APPROXIMATELY 134 ACRES OF LAND COMMONLY KNOW AS UNICORN LAKE WHICH IS GENERALLY LOCATED ON THE WEST SIDE OF 1-35E NORTH OF STATE SCHOOL ROAD IN THE M.E.P. & P.R.R. CO. SURVEY, ABSRACT NO. 950, IN THE CITY OF DENTON, DENTON COUNTY TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Windjammer, Ltd. ("Windjammer") has made a request of the City of Denton to establish an economic development program under Chapter 380 of the Texas Local Governmem ("Chapter 380") to stimulate the developmem of commercial property within the City of Demon; and WHEREAS, the City Council by this ordinance is establishing an economic developmem program under Chapter 380 which will stimulate business activity in the City and promote the public imerest (the "Program"); WHEREAS, to effectuate the Program the City and Windjammer have negotiated an Economic Developmem Gram Agreemem (the "Agreemem"), a copy of which is attached hereto and made a part hereof by reference; and WHEREAS, the City Council finds that the Program and Agreement promote economic developmem and will stimulate commercial activity within the City of Demon for the benefit of the public; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The recitals and findings comained in the preamble of this ordinance are incorporated imo the body of this ordinance. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreemem on behalf of the City of Demon and to carry out the City's responsibilities and rights under the Agreement, including without limitation the authorization to make the expenditures set forth in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 23, 2003 Questions concerning this acquisition may be directed Solid Waste to Charles Fiedler 349-8948 Howard Martin, Assistant City Manager ~ SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execute a professional services agreemem with Biodiesel industries, inc. and with DTE Biomass Energy, inc. to design and develop a landfill gas collection system ($160,000) and a biodiesel production facility ($650,000); authorizing the expenditure of funds therefore and providing an effective date (RFP 3111-in an amoum not to exceed $810,000). RFP INFORMATION The City must meet Clean Air Act and Energy Policy Act requirements for its on and off road diesel powered vehicles and equipmem. These requiremems include the use of lower emission alternative fuels. The proposed project consists of a landfill gas (LFG) collection and treatmem system that utilizes the collected LFG in the production of a biodiesel fuel. The proposed project would include the development of contracts with DTE Biomass Energy, Inc. and Biodiesel Industries, inc. to construct and operate landfill gas and biodiesel facilities, which would be located on the City's landfill property. The biodiesel fuel produced in this process will provide fuel for the City's diesel fleet, which meets the alternative fuel requirements of the Energy Policy Act. A Modular Biodiesel Production Unit (MPU) as produced only by Biodiesel Industries, fits inside a standard imermodal shipping comainer (8' x 8' x 40'), and is capable of producing up to 3,000,000 gallons per year of biodiesel from a variety of feed stocks, including both virgin and recycled vegetable oils. The modular design allows for substamial market fluctuations and rapid unit locations from a single manufacturing poim. The DeNon biodiesel project is presemly estimated to be a three MPU operation built in phases according to market demand. The proposed DeNon MPU (3,000,000 gallons per year production rate) is essemially a duplicate of the new Las Vegas MPU addition and can be sited at the City's landfill near the flare, it would use landfill gas energy for process heat and, perhaps, for electric energy. The total landfill gas energy use for one MPU is small and is much less than the gas generation rate of the landfill. A waste cooking oil collection infrastructure is to be provided and operated by Biodiesel industries. This would include: (1) grease collection comainers placed at area restaurams and other grease generating sites such as large condominium complexes; (2) two pump trucks for removing the collected grease from the containers to a central collection tank located at the plant. The first markets for the biodiesel produced from the collected greases could involve municipal diesel vehicles such as municipal bus fleets and MSW hauling trucks. Electric utility fleets are also prime potential users ofbiodiesel since they are now under EPACT mandates. Every gallon of biodiesel use displaces 0.95 gallons of petroleum-based diesel over its life cycle. It is also very efficient. For every unit of fossil fuel energy used to produce biodiesel, 3.37 units of biodiesel energy are created. In the case under discussion, LFG energy, not fossil fuel energy, will be used to produce biodiesel, thereby increasing efficiency of the fuel. Furthermore, the crops used to produce biodiesel absorb large amounts of CO2 from the atmosphere as they grow. I n addition, the project will significantly reduce the City's cost of LFG collection and treatment. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board voted unanimously (7-0) to approve this item at their February 24, meeting discuss this item at its February 23, 2004 meeting. RECOMMENDATION Staff recommends award of this item to Biodiesel Industries, Inc. and DTE Biomass Energy, Inc. in an amount not to exceed $810,000. PRINCIPAL PLACE OF BUSINESS Biodiesel Industries, Inc. Las Vegas, Nevada DTE Biomass Energy, Inc. Ann Arbor, Michigan ESTIMATED SCHEDULE OF PROJECT This project would begin upon council award with an estimated completion date of July 2004. FISCAL INFORMATION Funding for this project will be provided from Solid Waste Operating Funds ($300,000) and available Capital Project Funds ($510,000). EXHIBITS 1. Biodiesel Ordinance 2. Biomass Ordinance 3. Feasibility Study 4. Biodiesel Agreement 5. Biomass Agreement 6. Support Letters 7. PUB Meeting Minutes Respectfully submitted: Howard Martin ACM/Utilities ORDINANCE NO. 2004- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN EQUIPMENT SALE, LEASE, AND LICENSE AGREEMENT BETWEEN THE CITY OF DENTON AND BIODIESEL INDUSTRIES, INC.; SAID AGREEMENT BEING FOR PROFESSIONAL SERVICES AND HIGH TECHNOLOGY PROCUREMENT FOR THE DESIGN, DEVELOPMENT, AND OF A BIODIESEL PRODUCTION FACILITY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE AND PROVIDING AN EFFECTIVE DATE (RFP 3111). WHEREAS, after advertising for and receiving competitive sealed proposals in accordance with the law, City staff reviewed and rated the sealed proposals and recommends that the Equipment, Sale, Lease, and License Agreement for the design, development, and of the a biodiesel facility be awarded to Biodiesel Industries, Inc. (the "Provider") as the proposal offering the best final offer based on the evaluation factors contained in the request for proposal, said agreement being attached hereto and made a part hereof as Exhibit "A" (the "Agreement"); and WHEREAS, the Agreement calls for a high technology procurement of equipment and professional services of a highly technical nature; and WHEREAS, the City Council finds that the Provider's proposal as set forth in the Agreement is the proposal offering the best final offer based on the evaluation factors contained in the request for proposal WHEREAS, the Provider is qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the amount being charged for professional services under the Agreement are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CiTY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as if fully set forth herein. SECTION 2. The Agreement is hereby approved and the City Manager, or his designee is hereby authorized to enter into the Agreement on behalf of the City. SECTION 3. The City Manager is authorized to expend funds as required bythe Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and EXHIBIT 1 ' approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-RFP 31 t 7 ORDINANCE NO. 2004- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A LANDFILL GAS RIGHTS AND COLLECTION FACILITY LEASE AND LICENSE AGREEMENT BETWEEN THE CITY OF DENTON AND DTE BIOMASS ENERGY, INC.; SAID AGREEMENT BEING FOR PROFESSIONAL SERVICES AND HIGH TECHNOLOGY PROCUREMENT FOR THE DESIGN, DEVELOPMENT, AND OPERATION OF A LANDFILL GAS COLLECTION FACILITY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE AND PROVIDING AN EFFECTIVE DATE (RFP 3111). WHEREAS, after advertising for and receiving competitive sealed proposals in accordance with the law, City staff reviewed and rated the sealed proposals and recommends that the landfill Gas Rights and Collection Facility Lease and License for the design, development, and operation of a landfill gas collection facility be awarded to DTE Biomass Energy, Inc. (the "Provider') as the proposal offering the best final offer based on the evaluation factors contained in the request for proposal, said agreement being attached hereto and made a part hereof as Exhibit "A" (the "Agreement"); and WHEREAS, the Agreement calls for a high technology procurement of equipment and professional services of a highly technical nature; and WHEREAS, the City Council finds that the Provider's proposal as set forth in the Agreement is the proposal offering the best final offer based on the evaluation factors contained in the request for proposal WHEREAS, the Provider is qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the mount being charged for professional services under the Agreement are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as if fully set forth herein. SECTION 2. The Agreement is hereby approved and the City Manager, or his designee is hereby authorized to enter into the Agreement on behalf of the City. SECTION 3. The City Manager is authorized to expend funds as required by the Agreement. EXHIBIT 2 SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: '-~~~~' 3-ORD-RFP 3~1~7 - / FEASIBILITY STUDY FOR a PROPOSED BIODIESEL PRODUCTION FACILITY at a LANDFILL Site IN DENTON, Texas Executive SUMMARY qd ~ Proposed Site for Combined Landfill Gas/Biodiesel Production Facility RusSeLL TeaLL, PResIDeNT 435 1/2 EL SUeNO ROAD, SaNTa BaRbaRa, CA 93110 805-683-8103 / Fax 80~456-2192 EMAIL -- RTEALL@AOL.COM / WEB SITE --PIPELINE.TO/BIODIESEL NOTE: Certain parts of this Feasibility Study contain forward-looking statements regarding Biodiesel Industries, Inc. ("The Company"). The Company's actual results may vary materially from these forward-looking statements. The Company intends that such statements be subject to the safe harbor provision of the Securities Exchange Act of 1934. These statements relate to future growth of the Company. There can be no assurance that these goals will be realized, and actual results may vary materially from those statements set forth herein. 02004 Biodiesel Industries, Inc. EXHIBIT 3 Feasibility Study This Feasibility Study has been commissioned by the City Of Demon, Texas to examine the feasi- bility of locating a biodiesel production facility at the landfill site at 1527 South Mayhill Road, DeNon. This is divided imo five sections: 1. What is Biodiesel? 2. Background of the Technology 3. Feedstock Suitability and Availability 4. Proposed Site 5. Market Drivers and Incentives As part of the overall study, economic factors were considered separately by Charles Fiedler in cooperation with John Villella, and are covered elsewhere. 1. What is biodiesel? - Biodiesel is a nomoxic and biodegradable alternative to petroleum diesel which is made from organic fats and oils such as virgin and recycled vegetable oils and animal fats. Even in blends as low as 20% biodiesel to 80% petroleum (known as B20), biodiesel can substamially reduce the emission levels and toxicity of diesel exhaust. Biodiesel is des- ignated under federal law as an "alternative fuel," and is regis- tered with the US Environmental Protection Agency as a fuel and fuel additive. It can be used in any diesel engine, withom the need for mechanical alterations, and is compatible with the existing petroleum distribution infrastructure. Both State and Federal regulations require certain government fleets to use al- ternative fuels. The City of Demon has a potemial need for over 300,000 gallons ofbiodiesel annually to run in vehicles such as City of Denton gabage truck those used for refuse collection. 2. Background of the Technology - Biodiesel has been in widespread use in Europe over the past twenty years and in the US for the past 10 years. Tra- ditionally biodiesel has been made from virgin veg- etable oils such as soybean oil, and the price has been high. New technology developed by Biodiesel Indus- tries uses recycled cooking oils and modular produc- tions units to substantially reduce the cost of biodie- sel. These units were developed in cooperation with the US Department of Energy and the US Navy, and are being used commercially in Las Vegas, Nevada, Rutherford, Australia plant with build out capacity of 10,000,000 gallons per year Ventura, California, and Rutherford, Australia. The first unit proposed for DeNon will be capable of producing up to 3,000,000 gallons ofbiodiesel per year. 3. Feedstock Suitability and Availability - US Department of Energy Studies have indicated that there are approximately 3 gallons of waste vegetable oils generated per person per year. Each gallon of used vegetable oil will generate approximately .9 gallons ofbiodiesel. For an area the size of the Dallas Fort Worth Metroplex this would mean 12-15 million gallons of feedstocks per year. Currently these waste oils are being collected from area restaurams for a fee of $25 to $50 per month and are being processed imo animal feed supplemems or being disposed of at landfills. The use of used cooking oils as animal feeds supplemeNs is in questions because they also include animal fats and by products poteNially linked to Mad Cow Disease. A direct collection system for gathering waste cooking oils from Metroplex area res- taurants would generate enough feedstock to support at least a 3,000,000 gallon per year biodiesel production facility, and pos- sibly a second and third production unit. Used cooking oil samples were collected from three Denton area restaurants, McDonalds, UNT's Student Union, and the INernational House of Pancakes. These samples fell within an acceptable range for use as biodiesel feedstocks, and small samples ofbiodiesel were made from each sample. Each facility surveyed generated between 50 to 150 gallons of used cooking oils per week. At an average of 100 gallons per week it would take roughly 60 restaurants to generate the 300,000 gallons of biodiesel estimated for the needs of the City of DeNon. Used cooking oil samples from Denton area restaurants 4. Proposed Site - The proposed site for the biodiesel production facility is located at the landfill on 1527 South Mayhill Road in DeNon. An existing building, which is slated for demolition, is the pre- ferred site. The biodiesel plan will occupy under 10,000 square feet and will be collocated with the proposed landfill gas project. Utilities needed for the plan are readily accessible. Noise, odor, and traffic impacts will be minimal, and there is a new ceNral fueling station being completed adjaceN to the loca- i / PrEFErRED 5. Market Drivers and Incentives - The national effort to improve air quality and reduce our dependence on foreign oil has lead to regulations on a state and federal level requiring governmeN fleets to use alternative fuels. Biodiesel is generally considered to be the least expensive alternative fuel because no new infrastructure is required. Fleets do not need to buy new vehicles or convert old ones, fueling infrasturcture remains the same, and the performance of the vehicles is unaffected. The national average price ofbiodiesel is now $2.12 per gallon in bulk fleet pruchases. Producing biodiesel locally will substaNially reduce this price, and profit sharing from the production facility can reduce the net price for biodiesel even further. The economics of this are covered in a separate preseNa- tion. Suffice it to say that having a biodiesel plan operate in conjunction with the proposed landfill gas project will be the lowest cost compliance option for the City of DeNon. 50' 70' Barrel Cleaning/Storage FILTER Unit Control Grease Filters Boiler Boiler Haz Mat Storage Area out Grease in EQUIPMENT SALE, LEASE, AND LICENSE AGREEMENT BIODIESEL INDUSTRIES, INC., BIODIESEL INDUSTRIES OF DENTION And THE CITY OF DENTON, TEXAS March ,2004 EQUIPMENT SALE, LEASE, AND LICENSE AGREEMENT PARTIES THIS EQUIPMENT SALE, LEASE, AND LICENSE AGREEMENT (the "Agreemem") is entered into effective as of the __ day of February, 2004, by and between BIODIESEL INDUSTRIES, INC., a Delaware corporation ("BioD"); BIODIESEL INDUSTRIES OF DENTON ("Affiliate"), a subsidiary of BioD, and, the CITY OF DENTON, TEXAS, a home rule municipal corporation ("City"). BioD, Affiliate, and City are sometimes referred to collectively herein as the "Parties", and each individually as a "Party". II RECITALS 2.1 BioD is engaged in the business of producing, supplying, and marketing biodiesel and biodiesel production facilities on a global scale. 2.2 BioD is also in the business of manufacturing for sale modular production units which produce biodiesel. 2.3 City owns and operates a municipal landfill and waste collection system, which would be suitable for a biodiesel production facility. 2.4 The Parties desire to emer into an Agreement to, among other things, establish, encourage and support a business emerprise for the developmem of a biodiesel production facility, and the production of biodiesel in Demon, Texas which will employ people locally, utilize local resources, and produce a clean, renewable source of energy. 2.5 Affiliate is curremly a wholly owned subsidiary of BioD which will maimain totally separate books and records for accouming purposes, which may be under the managemem and comrol ora separate board of directors, which may have additional or differem shareholders, which may establish itself as an independem business structure, and which will undertake the objectives of this Agreement as set forth herein. 2.6 To accomplish these purposes, BioD will sell and license biodiesel production equipmem to City, and City will lease said equipmem to Affiliate for rem based upon a percemage of net profits. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 2.7 NOW, THEREFORE, in consideration of the promises and the mutual covenants comained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, imending to be legally bound, hereby agree as follows: III CERTAIN DEFINITIONS The following capitalized terms shall have the respective meanings specified in this Article lll. Other terms defined elsewhere herein shall have meanings so given them. The terms defined in this Article III include the plural as well as the singular. 3.1 Affiliate. "Affiliate" is curremly a wholly owned subsidiary of Biodiesel Industries, Inc. a Delaware corporation which shall be registered to do business in the State of Texas. 3.2 City. "City" is the City of DeNon, Texas, a home rule municipal corporation. 3.3 Customer. "Customer" shall mean persons or companies to whom Affiliate sells, or will in the future sell, Biodiesel exclusively for use within the Territory, and under no circumstances for shipment outside of the Territory. 3.4 Disclosing Party. "Disclosing Party" shall mean the Party that discloses its Proprietary Information to the other Party. 3.5 GAAP. "GAAP" shall mean the generally accepted accouming principles of the Financial Accounting Standards Board, consistently applied, as amended from time-to-time. 3.6 Improvements. "lmprovemems" shall mean any updates, upgrades, improvemems, new versions and releases, enhancemems or replacemems of the Technology, as applicable. 3.7 Licensed Marks. "Licensed Marks" shall mean all trademarks, trade names, logos, and marks curremly belonging to BioD and which may in the future be adopted for use by BioD or its Affiliates. It is expressly agreed that the appearance and/or style of the Licensed Marks may change from time-to-time in BioD's sole discretion. 3.8 Marketing Expenses. "Marketing Expenses" shall mean all costs and expenses arising from and related to marketing, promotional and advertising activities, including advertisement placement and advertisement creation for the production and sale ofbiodiesel, as well as employee salaries for employees whose employmem responsibilities involve marketing biodiesel. 3.9 Most Favored Nation Basis. "Most Favored Nation Basis" shall mean that the Affiliate will offer to and provide to the City the price or terms for the sale and purchase of biodiesel provided to any other customer in the Territory. 3.10 Proprietary Information. "Proprietary Information" of a Disclosing Party shall mean the following, to the extent previously, currently or subsequently disclosed to the Receiving C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC Party, hereunder or otherwise: information relating to products or technology of the Disclosing Party or the properties, composition, structure, use or processing thereof, or systems therefore, or to the Disclosing Party's business (including, without limitation, computer programs, code, schematics, data, know-how, processes, ideas, inventions (whether patentable or not), names and expertise of employees and consultants, all information relating to customers and customer transactions and other technical, business, financial, customer and product development plans, forecasts, strategies and information). In particular, but without limitation, Proprietary Rights, Technology, and Improvements shall be considered Proprietary Information. 3.11 Proprietary Rights. "Proprietary Rights" shall mean patent rights, copyrights, trade secret rights, and similar proprietary intellectual property rights. 3.12 Purchase Price. "Purchase Price" shall mean the amount to be paid by City to BioD hereunder for the purchase of the MPU, as further reflected in Section 4.2, below. 3.13 Receiving Party. "Receiving Party" shall mean the Party hereto that receives Proprietary Information of the other Party. 3.14 Technology. "Technology" shall mean those processes, techniques and equipment relied upon for the production and distribution of biodiesel, including the collection, use and processing of feedstocks for making biodiesel. 3.15 Territory. "Territory" shall mean the Greater Dallas/Fort Worth Metroplex which consists of Denton, Collin, Dallas, Cooke, Grayson, Ellis, Erath, Hood, Hunt, Johnson, Navarro, Palo Pinto, Parker, Somerville, Tarrant, Wise, Rockwall and Kaufman counties. IV SALE AND LEASE OF EQUIPMENT 4.1 Description of Equipment. Execution of this Agreement shall constitute the obligation of City to acquire a modular production unit from BioD (the "MPU"), the exact specifications and details of which are described in greater detail on Exhibit A, attached hereto and incorporated herein by reference. 4.2 Purchase Price. In consideration for the purchase of the MPU, City shall pay to BioD the sum of SIX HUNDRED AND FIFTY THOUSAND DOLLARS ($650,000). 4.3 Payment Provisions. 4.3.1. Payment Schedule. Payment of the Purchase Price shall be made in installments as follows: (1) $150,000 upon the signing of this Agreement which is payment for the license fee, (2) $150,000 within 45 days of signing this agreement, (3) $150,000 upon the completion of the MPU, and (4) $100,000 upon delivery of the MPU to the site at the City's landfill, and (5) $100,000 upon completion of installation by BioD and Final Acceptance by City. City shall have the right to inspect the progress of construction of the equipment prior to each payment, with C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC Final Acceptance conditioned upon BioD demonstrating that the MPU has been installed and is operational Delays in payment of the first three payments may extend the delivery date and completion of installation time set forth in section 4.4.2 but only to the extent of such delay. To secure the delivery and completion of the installation of the MPU, upon the signing of this Agreemem BioD will deliver to the City an irrevocable letter of credit in the amoum of $500,000 and in substantially the same form as the letter of credit attached hereto and made a part hereof as Exhibit B. The letter of credit shall be from a federally insured bank having offices in Dallas, Texas to where drafts on the letter of credit may be drawn. The letter of credit shall be for a period of six months, except that BioD shall substitute a letter of credit no later then 30 days prior to its expiration for an additional six momh period should the schedule set forth in 4.4.2 be delayed. Upon the completion of the installation of the MPU and the City's Final Acceptance of the MPU, the letter of credit will be released. As an alternative to the letter of credit, BioD may elect to have City issue a Purchase Order, with payments 2-4 as set forth above due upon delivery of the MPU to the landfill site at Denton. In such case payment 5 will be made as set forth above upon completion of the installation of the MPU by BioD and Final Acceptance by the City. Any additional costs directly associated with the Letter of Credit or similar financing arrangements drawn upon the Purchase Order shall be borne by City as they are incurred. 4.3.2. Sales and Use Taxes. The City as a tax exempt governmemal emity is exempt from sales and use taxes. 4.3.3. Place of Payments. City shall tender payment of the Purchase Price to BioD at such place as BioD shall designate in writing to City. However the place where the sale of the MPU is deemed to have occurred is Demon County, Texas. 4.4 Delivery. 4.4.1. General Terms. Delivery of the MPU shall be to the location designated by City at the City's landfill, at the expense of BioD which shall be in addition to the Purchase Price. 4.4.2. Schedule. Delivery of the MPU shall be made within four months of the receipt of the first payment due hereunder. Completion of the installation of the MPU shall be within one month thereafter. 4.5 Lease. City agrees to lease to Affiliate for a period of twenty years, with two options for ten year renewals by Affiliate, the MPU and a site for operations at its landfill for rent equal to 49% of net operating profits generated from the first and second MPU's, paid on a quarterly basis. Affiliate agrees to maimain adequate books and records subject to inspection by City upon reasonable notice and conforming to GAAP. City shall have the right to appoim one member of a three person managing board of Affiliate and shall have the right to attend and participate in all board meetings of Affiliate. Should the number of the board members increase the City will be entitled to appoint additional board members so that a ratio one to three of City appointed board members will be maimained. Net operating profits shall be defined as gross revenues from the sale ofbiodiesel and glycerin, minus any expenses including reasonable salaries, raw materials, utilities, maintenance, transportation, insurance, professional fees, marketing, taxes and court ordered paymems or fines. Any taxes, fees or charges levied by the City against Affiliate shall be deducted C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC wholly from City's share of net operating profits. In no event shall City be liable for any debts or obligations incurred by Affiliate. 4.6 Warranties. 4.6.1. Limited Warrantw The Parties hereby expressly agree that there are no warranties on the MPU which extend beyond the general warrant that the Technology and Equipment are suitable for the intended purpose of producing biodiesel meeting ASTM 6751 standards. BioD does not warrant that the MPU or the Technology shall be free from defects or errors that do not compromise the ability of the MPU to meet its intended purpose. Rather, BioD warrants that the nature and extent of defects and errors shall not exceed industry standards, and that warranties provided by vendors of individual components of the MPU shall be extended to City and Affiliate. BioD agrees to use reasonable efforts to promptly correct any errors that disable the MPU or the Technology. This warranty shall not apply in the event City, Affiliate or any other party, with or without the consent of Affiliate, makes or permits any alteration of the MPU or the Technology, or any part thereof, by any party other than BioD. 4.6.2. Disclaimer. Except as provided in Section 4.6.1 above and Article IX below, BioD hereby expressly disclaims any warranty, express or implied, including the warranty of merchantability or a warranty that the MPU can be used, or is fit for any particular purpose other than producing biodiesel. City hereby purchases and accepts the MPU, and Affiliate hereby leases and accepts the MPU, solely on the basis of the warranties expressed herein and Section 4.6.1. and Article IX. 4.7 Damages. 4.7.1. City's and Affiliate's Remedies. City's and Affiliate's exclusive remedy for claims arising under this Agreement shall be for actual damages, injunctive relief, specific performance and/or declaratory judgment relief. In no event will BioD be liable for lost profits or other consequential or incidental damages. Notwithstanding the foregoing, should BioD be in default under this Agreement or the City is enjoined from using the MPU or Technology due to a patent infringement suit, or the like, which results in the City's inability to receive a minimum of 300,000 gallons ofbiodiesel fuel annually as contemplated by this Agreement, then BioD shall be required to provide sufficient biodiesel fuel to the City to meet this minimum at the same purchase price provided for in Subsection 4.9 (f) of this Agreement regardless of the actual cost to BioD to provide such biodiesel fuel. 4.7.2. BioD's Remedies. Failure of City to pay the Purchase Price when due shall give BioD the unlimited right, without liability, to take possession of the MPU, and to have all of the remedies of a secured party under the Uniform Commercial Code of the State of Texas. Should Affiliate fail to make the lease payments to the City when due, or otherwise default under the lease, the City will give Affiliate and BioD at least 30 days written notice of such default, during which Affiliate or BioD shall have an opportunity to cure. 4.8 Related Obligations of BioD. In addition to all other obligations hereunder regarding the sale of the MPU, BioD shall, at its sole cost and expense, also be obligated as follows: C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC (a) provide consulting services to assist Affiliate with the design of its plans for appropriate site preparations; (b) provide commissioning of the MPU so as to ensure that the MPU is fully operational; (c) offer to sell to City a second MPU for operation in conjunction with the first MPU at a price of $390,000, and subject to the same lease terms to Affiliate contained herein; and, (d) provide initial training to designated Affiliate personnel for the initial operation of the MPU; and (e) provide in conjunction with the Affiliate, the installation of the MPU and make it operational so that it is satisfactorily using the Technology. 4.9 Related Obligations of Affiliate. In addition to all other obligations hereunder regarding the purchase of the MPU, Affiliate shall, at its sole cost and expense, also be obligated as follows: (a) at its sole cost and expense, provide all necessary and appropriate site preparations for the MPU, any additional improvements needed for a second MPU, and all expenses associated with a third MPU; (b) obtain any and all necessary construction and operating permits; and (c) pay all Marketing Expenses in order to satisfy its obligations under this Agreement, which shall include providing a "link" on the Affiliate website to the BioD website. (d) maintain adequate insurance to cover loss, damage or theft of the MPU and site improvements, liabilities for injuries sustained during as a result of its activities, product liability insurance, directors and officers insurance, and with all policies indicating BioD and City as additional insured parties and meeting the City's insurance requirements contained in Exhibit C attached hereto and incorporated herein by reference. (e) provide all necessary employees and personnel and other maintenance and operational costs and expenses necessary to operate and maintain the MPU, Technology and related equipment and activities to meet the goals and purposes of this Agreement. (f) sell to City a minimum of 300,000 gallons ofbiodiesel annually on a Most Favored Nation Basis during the term of the Lease at a purchase price not to exceed $1.30 per gallon until the completion of five years or the City receives $650,000 worth of lease payments from the Affiliate as provided in Section 4.5 whichever occurs latter. Thereafter the purchase price for the biodiesel will have an annual adjustment based upon the consumer price index for the Dallas Fort Worth Area. 4.10 Related Obligations of City,. In addition to all other obligations hereunder regarding the purchase of the MPU, City shall, at its sole cost and expense, also be obligated as follows: (a) at its sole cost and expense, provide a mutually agreeable site for the MPU at its landfill site, with suitable access to utilities, and transit for personnel and vehicles necessary for the operation of one MPU initially, and for up to two additional MPU's at the same site; (b) assist with all necessary construction and operating permits; C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC (c) purchase a minimum of 300,000 gallons of biodiesel annually on a Most Favored Nation Basis" during the term of the Lease at a purchase price not to exceed $1.30 per gallon umil the completion of five years, or the City receives $650,000 worth of lease paymems from the Affiliate as provided in Section 4.5 whichever occurs latter. Thereafter the purchase price for the biodiesel will have an annual adjustmem based upon the consumer price index for the Dallas Fort Worth Area. V LICENSE 5.1 Grant. Subject to all the terms and limitations of this Agreement, BioD hereby grams to City, and by extension to Affiliate, a perpetual, non-transferable, non-sublicensable license (the "License") to use the Technology and the associated Proprietary Rights solely for the purpose of producing, marketing, promoting, and otherwise using biodiesel in the Territory, and only so long as City and Affiliate are in full compliance with this Agreemem and the Agreemem has not expired or been terminated. The License is exclusive only in the Territory and no rights to use the Technology or any associated Proprietary Rights are granted by BioD outside of the Territory. Biodiesel produced hereunder by City or Affiliate will not be marketed or provided directly or indirectly by City or Affiliate to any party which is not a Customer imending to use the biodiesel inside of the Territory. Any marketing by City or Affiliate to Customers outside the Territory shall be done solely in cooperation with BioD (and with BioD's prior written consem in each instance, which may be withheld in its sole discretion), and shall be in compliance with all applicable laws. City and Affiliate and its employees, directors, shareholders and officers, agree not to compete with BioD by producing, marketing or distributing biodiesel outside of the Territory without the express written consent of BioD. 5.2 License to Licensed Marks. Subject to all the terms and limitations of this Agreemem, the License shall also expressly include the gram hereunder by BioD to City and Affiliate of a perpetual, non-transferable, non-sublicensable license to use the Licensed Marks in the Territory solely in connection with the marketing, promotion, and supply ofbiodiesel. The foregoing gram is exclusive only in the Territory. Said use of the Licensed Marks shall be sufficiemly differem to distinguish it geographically from BioD's Licensed marks. 5.3 Retained Rights. BioD shall retain and own all right, title and interest in and to the Technology, Licenses Marks, and all Proprietary Rights. Any and all Improvements, extensions of the Technology, and all related additions and items shall be the sole and exclusive property of BioD, even if developed, perfected, or otherwise derived through the sole effort and expense of City or Affiliate. VI ROYALTIES There shall be no royalty paymems due to BioD by City as part of this Agreemem. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC VII ADDITIONAL RIGHTS AND OBLIGATIONS OF AFFILIATE In addition to all other rights and obligations of Affiliate hereunder, Affiliate also hereby agrees as follows: 7.1 Duties. Affiliate shall, among other things: (a) produce, promote market, sell, advertise, and otherwise exploit biodiesel within the Territory, subject to and in satisfaction of the Minimum Standards; (b) comply with all applicable laws, and, at all times, to conduct its activities under this Agreement in a lawful manner; and (c) use the Licensed Marks in accordance with this Agreement. 7.2 Minimum Standards. Affiliate shall satisfy the minimum standards for marketing, customer service, operational reliability, performance, and technological development. Such minimum standards also include the standards, functional, and performance requirements for the MPU. 7.3 Regulatory Approval. Affiliate shall ensure that the MPU and the production of biodiesel by the MPU satisfies all applicable regulatory standards and requirements in the Territory, and that it will diligently pursue the necessary regulatory approvals for the operation of the MPU and the provision ofbiodiesel in the Territory. 7.4 Reverse Engineering. Affiliate and City agree not to disassemble, decompile, or otherwise reverse engineer the MPU or otherwise attempt to derive processes underlying the Technology, or, except as contemplated by this Agreement, copy, reproduce or modify the Technology, or allow others to do any of the foregoing, without the express written consent of BioD. 7.5 Exclusive Right in Territory. So long as City and Affiliate are not in breach of this Agreement, then (i) the License granted hereunder shall be exclusive to City and Affiliate within the Territory, and (ii) BioD shall not sell another MPU to be located within the Territory. 7.6 Required Changes and Maintenance. Affiliate shall make any changes and/or corrections in or to the MPU as may be reasonably required by BioD to prevent an erosion of the functionality or productivity of the MPU. Affiliate shall also maintain the quality standards prescribed by BioD. All such necessary changes and actions shall be at the sole cost and expense of Affiliate. 7.7 Promotional Materials. Affiliate shall have the right to create and distribute promotional and marketing literature and materials for biodiesel, using the Licensed Marks and materials and content provided by BioD. Affiliate shall furnish to BioD, at no expense to BioD, C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC samples of all literature and materials containing the Licensed Marks that it distributes or intends to distribute prior to any distribution thereof. BioD shall control the quality of all promotional and marketing literature and materials bearing the Licensed Marks and Affiliate's use of the Licensed Marks. Such quality control must be necessary, in BioD's reasonable determination, to the preservation of BioD's interest in the Licensed Marks, the "look and feel" and value propositions associated with the Licensed Marks, and other similar quality related standards. IfBioD believes that the Licensed Marks are being used by Affiliate in a manner likely to diminish BioD's rights in or protection of the Licensed Marks, Affiliate agrees, at its sole cost and expense, to make whatever changes and/or corrections BioD deems necessary to protect the Licensed Marks. 7.8 Protection of Reputation. Affiliate agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of City, BioD or any Licensed Mark. 7.9 Inspection Rights. City and BioD shall have the right to inspect the operations and facilities of Affiliate during normal business hours upon reasonable prior notice, to the extent reasonably necessary to ensure that BioD's and City's quality standards have been and are being met by Affiliate. Affiliate shall provide BioD and City with monthly reports (no later than ten (10) days after the end of each calendar month) no more detailed than the internal reports of Affiliate, taking into account BioD's advice when formulating the internal format of Affiliate, for BioD to evaluate the operational efficiency and controls of Affiliate, and to obtain reasonably detailed financial information. Viii ADDITIONAL RIGHTS AND OBLIGATIONS OF BiODiESEL In addition to all other rights and obligations of BioD hereunder, BioD also hereby agrees as follows: 8.1 Marketing and Technical Support. BioD shall provide a reasonable amount of continuing marketing and technical support of Affiliate, although such matters shall remain the primary responsibility of Affiliate. 8.2 Additional Support. BioD shall provide a reasonable amount of regulatory and operational compliance and customer service support, although such maters shall remain the primary responsibility of Affiliate. 8.3 Additional Quality Standards. In addition to the Minimum Standards, BioD shall also establish reasonable quality standards for the operation of the MPU, which will need to be satisfied by Affiliate. 8.4 Protection of Affiliate's Rights. BioD shall not itself, and shall not permit any other person except Affiliate or City, and shall use reasonable efforts so that no other person except Affiliate or City can, directly or indirectly (i) use the Licensed Marks or Technology in the Territory, C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC or (ii) use or license any part of the Technology in the Territory, whether or not in association with the Licensed Marks, for the benefit of any person other than Affiliate or City. 8.5 Intent as to Intellectual Property. BioD shall provide to Affiliate and City, as soon as reasonably practicable after the Effective Date of this Agreement, Technology in a form which would be reasonably necessary for Affiliate to produce biodiesel from the MPU. All Improvements to the Technology will only be required to be provided by BioD to Affiliate within a reasonable time after BioD makes the same available for distribution to its others affiliates, and Affiliate shall have no less priority in this regard than other affiliates with similar licenses. The Parties shall use their best efforts to work together to implement the Technology so that Affiliate may launch the MPU as soon as possible. IX REPRESENTATIONS AND WARRANTIES OF BIODIESEL AND AFFILIATE BioD and Affiliate hereby represent and warrant to City that: 9.1 Organization. BioD is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware, and Affiliate is currently a wholly owned subsidiary of BioD. 9.2 Authorization. 9.2.1 Operation of Business. BioD has the requisite corporate power and authority and all requisite licenses, permits and franchises necessary to own and operate its properties and to carry on its business as now being conducted and to provide the equipment and services provided for in this Agreement. 9.2.2 Execution of Agreement. BioD has the requisite corporate power and authority to enter into and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder. All corporate proceedings have been taken and all corporate authorizations have been secured which are necessary to authorize the execution, delivery and performance by BioD of this Agreement. This Agreement has been duly and validly executed and delivered by BioD and constitutes the valid and binding obligations of BioD, enforceable in accordance with the respective terms. 9.3 Effect of Agreement. As of the Effective Date, the consummation by BioD of the transactions herein contemplated, including the execution, delivery and consummation of this Agreement, will comply with all applicable law and will not: (a) Violate any judgment, order, writ or decree of any court or administrative body applicable to BioD or any of its assets; or C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 10 (b) Result in the breach of, constitute a default under, constitute an event which with notice or lapse of time, or both, would become a default under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the assets or other properties of BioD under any agreement, commitment, contract (written or oral) or other instrument to which BioD is a party, or by which any of the assets or other properties of BioD are bound or affected. 9.4 Consent. There are no (i) non-governmental third parties and (ii) governmental or regulatory entities in the United States who are entitled to any notice of the transaction, licenses and services contemplated hereunder or whose consent is required to be obtained by BioD for the consummation of the transactions contemplated hereunder. 9.5 Title and Ownership. To the best of its knowledge, BioD is the sole and rightful owner of all right, title and interest in and to the Technology and the Licensed Marks and all related Proprietary Rights therein and it has the unrestricted right to market, license and exploit the Technology and the Licensed Marks. 9.6 Absence of Adverse Claims. To the best of its knowledge, no claims have been made in respect of the Technology or Licensed Marks and no demands of any third party have been made pertaining to them, and no proceedings have been instituted or are pending or threatened that challenge the rights of BioD in respect thereof. 9.7 Services. All services to be rendered by BioD hereunder will be provided by BioD in a professional, diligent and timely manner using staff knowledgeable and suitably qualified for the performance of the respective tasks for which they are responsible and it will use reasonable efforts to ensure that the quality and reliability of its Services are no less favorable to Affiliate than the equivalent services provided by it for its own purposes or for its other licensees. 9.8 Competitive Advantage. BioD shall use reasonable efforts to remain competitive and to continually improve and upgrade its Technology, systems, and facilities. X REPRESENTATIONS AND WARRANTIES OF CITY City hereby represents and warrants to Biodiesel and Affiliate that: 10.1 Organization. City is a home rule municipal corporation organized under the laws of the State of Texas. 10.2 Authorization. 10.2.1 Operations. City has the requisite municipal power and authority and all requisite licenses, permits and franchises necessary to own and operate its properties and to carry on its activities as now being conducted and as provided for in this Agreement. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 11 10.2.2 Execution of Agreement. City has the requisite municipal power and authority to enter into and carry out the terms and conditions of this Agreement, as well as all transactions contemplated hereunder. All municipal proceedings have been taken and all municipal authorizations have been secured which are necessary to authorize the execution, delivery and performance by City of this Agreement. This Agreement has been duly and validly executed and delivered by City and constitutes the valid and binding obligations of City, enforceable in accordance with the respective terms. 10.3 Effect of Agreement. As of the Effective Date, the consummation by City of the transactions herein contemplated, including the execution, delivery and consummation of this Agreement, will comply with all applicable law and will not: (a) Violate any judgment, order, writ or decree of any court or administrative body applicable to City or any of its assets; or (b) Result in the breach of, constitute a default under, constitute an event which with notice or lapse of time, or both, would become a default under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the assets or other properties of City under any agreement, commitment, contract (written or oral) or other instrument to which City is a party, or by which any of the assets or other properties of City are bound or affected. 10.4 Fairness of Fees. Any and all fees, costs, and expenses to be paid hereunder by City are fair and reasonable, and the result of arm's length, good faith negotiations by and between the Parties. 10.5 Loyalty. City does not currently, and will not during the term of this Agreement, represent or promote any services or products that intentionally divert business away from the business of BioD, the MPU, or the biodiesel to be produced by the MPU. XI REPRESENTATIONS AND WARRANTIES OF AFFILIATE Affiliate hereby represents and warrants to BioD and City that: 11.1 Organization. Affiliate is currently a wholly owned subsidiary of BioD and is a Texas corporation in good standing. 11.2 Authorization. 11.2.1 Operations. Affiliate has the requisite power and authority and all requisite licenses, permits and franchises necessary to own and operate its properties and to carry on its activities as now being conducted and as provided for in this Agreement and the Lease. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 12 11.2.2 Execution of Agreement. Affiliate has the requisite power and authority to enter into and carry out the terms and conditions of this Agreement and the Lease, as well as all transactions contemplated hereunder. All proceedings have been taken and all authorizations have been secured which are necessary to authorize the execution, delivery and performance by Affiliate of this Agreement and the Lease. This Agreement has been duly and validly executed and delivered by Affiliate and constitutes the valid and binding obligations of Affiliate, enforceable in accordance with the respective terms. 11.3 Effect of Agreement. As of the Effective Date, the consummation by Affiliate of the transactions herein contemplated, including the execution, delivery and consummation of this Agreement, will comply with all applicable law and will not: (a) Violate any judgment, order, writ or decree of any court or administrative body applicable to Affiliate or any of its assets; or (b) Result in the breach of, constitute a default under, constitute an event which with notice or lapse of time, or both, would become a default under, or result in the creation of any lien, security interest, charge or encumbrance upon any of the assets or other properties of Affiliate under any agreement, commitment, contract (written or oral) or other instrument to which Affiliate is a party, or by which any of the assets or other properties of Affiliate are bound or affected. 11.4 Fairness of Fees. Any and all fees, costs, rent payments and expenses to be paid hereunder by Affiliate are fair and reasonable, and the result of arm's length, good faith negotiations by and between the Parties. 11.5 Loyalty. Affiliate does not currently, and will not during the term of this Agreement, represent or promote any services or products that intentionally divert business away from the business of BioD, the MPU, or the biodiesel to be produced by the MPU. XII CONFIDENTIALITY 12.1 Proprietary Information of BioD. During the period this Agreement and Lease are in effect and at all times after their termination, City, Affiliate and its employees, and agents shall, to the extent permitted by law, maintain the confidentiality of the Proprietary Information of BioD and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party or use such information except as authorized by this Agreement. City and Affiliate shall not disclose any such Proprietary information of BioD to persons not an employee of City or Affiliate without the prior written consent of BioD. Notwithstanding the foregoing, the Parties understand and agree that the City as a governmental entity must comply with the Texas Public information Act, being Chapter 552 of the Texas Government Code (the "Open Records Act") and the confidentiality requirements contained herein are subject to the Open Records Act. 12.2 Proprietary Information of Affiliate. During the period this Agreement is in effect and at all times after its termination, BioD and its employees, and agents shall maintain the C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 13 confidentiality of the Proprietary Information of Affiliate and City and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party or use such information except as authorized by this Agreement. BioD shall not disclose any such Proprietary Information of Affiliate or City to persons not an employee of BioD without the prior written consent of Affiliate or City. 12.3 Lack of Adequate Remedy. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law and to be indemnified by the Receiving Party from any loss or harm, including, without limitation, lost profits and attorney's fees, in connection with any breach or enforcement of the Receiving Party's obligations hereunder or the unauthorized use or release of any such Proprietary Information. The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach. Any breach of this Section 12.3 will constitute a material breach of this Agreement. XIII INDEMNIFICATION AND LIABILITY 13.1 Indemnification by Affiliate. Affiliate shall indemnify, defend and hold City and BioD, and their affiliates, directors, officers, employees, shareholders, and each of their successors and assigns, harmless from and against any and all claims, liabilities, demands, causes of action, damages, loss and expenses, including, without limitation, personal injury, including death, and property damage and reasonable attorneys' fees and costs of suit arising out of or in connection with: (a) Any breach of this Agreement by Affiliate; (b) The conduct of the business of Affiliate; and (c) The negligent act or omission of Affiliate. 13.2 Indemnification by BioD. BioD shall indemnify, defend and hold City, Affiliate, and their affiliates, directors, officers, employees, shareholders, and each of their successors and assigns, harmless from and against any and all claims, liabilities, demands, causes of action, damages, loss and expenses, including, without limitation, personal injury, including death, and property damage and reasonable attorneys' fees and costs of suit arising out of or in connection with: (a) Any breach of this Agreement by BioD; (b) Infringement of United States, copyright, trademark, or patent laws by the Technology, MPU or Licensed Marks; C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 14 (c) Agreement; and The conduct of the business of BioD, not otherwise in violation of this (d) The negligent act or omission of BioD. 13.3 No Consequential Damages. Except as provided in Section 4.7.1 of this Agreement, BioD shall not be liable to City or Affiliate for indirect, special, incidental, exemplary or consequential damages (including, without limitation, lost profits) related to this Agreement or resulting from Affiliate's use or inability to use the MPU or the Technology, arising from any cause of action whatsoever, including contract, warranty, strict liability, or negligence, even if BioD has been notified of the possibility of such damages. 13.4 Force Majeure. None of the Parties shall be in default or otherwise liable for any delay in or failure of performance under this Agreement if such delay or failure arises by any reason beyond their reasonable control, including any act of God, any acts of the common enemy or terrorism, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by another Party or such other Party's employees, or agents. However, lack of funds shall not be deemed to be a reason beyond a Party's reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause ora delay in the performance of this Agreement. XIV STATUS OF THE PARTIES The relationship of the Parties is purely that ora contractual nature, which is formulated under this Agreement. Under no circumstances are the Parties to be deemed partners, joint venturers, co-owners, or the like. Affiliate is not and shall not be deemed to be a franchisee of BioD, and similarly, under no circumstances shall BioD be deemed a franchisor in relation to Affiliate. Each Party shall be responsible for the operation of its respective sole and separate business, including the payment of its own costs and expenses incurred in connection therewith. XV TERM AND TERMINATION 15.1 Effective Date. This Agreement, the Lease and the License granted hereunder shall take effect upon the date first referenced in Article I, above. 15.2 Term. This Agreement shall continue in full force and effect from the Effective Date for a term of twenty years, with two options for ten year renewals by City, unless terminated as provided for hereunder. 15.3 Termination. This Agreement shall terminate upon thirty (30) days prior written notice from one Party (the "Acting Party") to the other (the "Breaching Party") alleging an "Event of'Default" C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 15 (as defined below), provided that the Breaching Party does not cease and cure the conduct constituting "for cause" prior to the expiration of such thirty (30) day period. For purposes of this Agreement, the term "Event of Default" shall include the following: (a) Breach of a material provision of this Agreement; (b) this Agreement; The repeated failure to render full and proper services as required by the terms of (c) Termination or suspension of business; (d) Initiation, either voluntary or involuntary, of a bankruptcy or insolvency or assignment for the benefit of creditors proceeding under Federal or state statute; (e) Determination of insolvency or becoming subject to direct control by a trustee, receiver or similar authority; or (f) Liquidation, voluntarily or otherwise. A termination of the Agreement shall also act as a termination of the Lease. 15.4 Notice. The notice required under Section 15.3, above (the "Termination Notice"), must identify in detail the Event of Default. If the Event of Default remains uncured for thirty (30) days, the Acting Party may terminate this Agreement, the Lease and the License granted herein by delivering to the defaulting party a subsequent written notice which merely identifies the effective date of the termination (the "Subsequent Notice"). 15.5 Disputes as to Event of Default. If the Disputing Party disputes the Event of Default, except in the case of an emergency, the Parties agree to enter into mediation to attempt to resolve the dispute. 15.6 Option to Acquire and Sell MPU. Upon termination of this Agreement, for any reason, BioD and City each shall have the right, to be exercised within sixty (60) days after the date of termination of this Agreement, to have BioD acquire the MPUs for a purchase price equal to eighty percent (80%) of the Purchase Price actually paid by City. Additionally, whether or not this option is exercised, each Party shall promptly return to the other any and all Proprietary Information of the other currently in its possession, or alternatively, deliver to the other a certification, in writing signed by an officer of that Party under penalty of perjury, that all Proprietary Information of the other has been deleted or destroyed, and its use discontinued. XVI NOTICES All notices, requests, demands and other communications required or permitted to be given hereunder shall be effected pursuant to Section 17.13, below, as follows: C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 16 If to BioD or Affiliate: Mr. Russell T. Teall, III BIODIESEL INDUSTRIES, INC. 435 1/2 E1 Sueno Road Sama Barbara, California 93110 Fax No. If to City: City Manager City of Demon City Hall 215 E. McKinney Denton, Texas 79201 Fax No. 940.349.8596 With a copy to: Keith A. Rosenbaum, Esq. SPECTRUM LAW GROUP, LLP 1900 Main Street Suite 125 Irvine, California 92614 Fax No. XVII ADDITIONAL PROVISIONS 17.1 Executed Counterparts. This Agreement may be executed in any number of original, fax or copied counterparts, and all counterparts shall be considered together as one agreement. A faxed or copied counterpart shall have the same force and effect as an original signed counterpart. Each of the Parties hereby expressly forever waives any and all rights to raise the use ora fax machine to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine, as a defense to the formation of a contract. 17.2 Successors and Assigns. Except as expressly provided in this Agreemem, each and all of the covenants, terms, provisions, conditions and agreemems herein comained shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties hereto. 17.3 Article and Section Headings. The article and section headings used in this Agreement are inserted for convenience and idemification only and are not to be used in any manner to imerpret this Agreement. 17.4 Severability. Each and every provision of this Agreemem is severable and independem of any other term or provision of this Agreemem. If any term or provision hereof is held void or invalid for any reason by a court ofcompetemjurisdiction, such invalidity shall not affect the remainder of this Agreement. 17.5 Governing Law. This Agreement shall be governed by the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 17 other than the State of Texas. If any court action is necessary to enforce the terms and conditions of this Agreement, the Parties hereby agree that a court of competent jurisdiction in Denton County, Texas or the Federal District Court for the Eastern District of Texas shall be the sole jurisdiction and venue for the bringing of such action. This Agreement is fully performable in Denton County, Texas. 17.6 Entire Agreement. This Agreement, and all references herein, contains the entire understanding among the Parties hereto and supersedes any and all prior written or oral agreements, understandings, and negotiations between them respecting the subject matter contained herein. Notwithstanding the foregoing, the City and Affiliate reserve the right to enter into such other agreements as may be necessary, if any, for the Lease. 17.7 Additional Documentation. The Parties hereto agree to execute, acknowledge and cause to be filed and recorded, if necessary, any and all documents, amendments, notices and certificates which may be necessary or convenient under the laws of the State of Texas. 17.8 Attorney's Fees. If any legal action (including arbitration) is necessary to enforce the terms and conditions of this Agreement, the prevailing Party shall be entitled to costs and reasonable attorney's fees. 17.9 Amendment. This Agreement may be amended or modified only by a writing signed by all Parties. 17.10 Remedies. 17.10.1 Specific Performance. The Parties hereby declare that it is impossible to measure in money the damages which will result from a failure to perform any of the obligations under this Agreement. Therefore, each Party waives the claim or defense that an adequate remedy at law exists in any action or proceeding brought to enforce the provisions hereof. 17.10.2 Cumulative. The remedies of the Parties under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled. 17.11 Waiver. No failure by any Party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy on a breach shall constitute a waiver of any such breach or of any other covenant, duty, agreement, or condition. 17.12 Assignability. This Agreement is not assignable by either Party without the expressed written consent of all Parties, except as expressly set forth herein. 17.13 Notices. All notices, requests and demands hereunder shall be in writing and delivered by hand, by facsimile transmission, by mail, by telegram or by recognized commercial over-night delivery service (such as Federal Express, UPS or DHL), and shall be deemed given (a) if by hand delivery, upon such delivery; (b) if by facsimile transmission, upon telephone confirmation of receipt of same; (c) if by mail, forty-eight (48) hours after deposit in the United States mail, first class, registered or certified mail, postage prepaid; (d) if by telegram, upon telephone confirmation of receipt of same; or (e) if by recognized commercial over-night delivery service, upon such delivery. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 18 17.14 Time. All Parties agree that time is of the essence as to this Agreement. 17.15 Disputes. With regard to all disputes other than those that require immediate action due to an emergency, the Parties agree to cooperate and meet in order to resolve any disputes or controversies arising under this Agreement. Should they be unable to do so, except in the case of an emergency, the Parties agree to mediate such disputes with a third party mediator mutually agreed upon by the Parties. 17.16 Provision Not Construed Against Partw Drafting Agreement. This Agreement is the result of negotiations by and between the Parties, and each Party has had the opportunity to be represented by independent legal counsel of its choice. This Agreement is the product of the work and efforts of all Parties, and shall be deemed to have been drafted by all Parties. In the event of a dispute, no Party hereto shall be entitled to claim that any provision should be construed against any other Party by reason of the fact that it was drafted by one particular Party. 17.17 Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof as if set out in full herein. 17.18 Consents, Approvals and Discretion. Except as herein expressly provided to the contrary, whenever this Agreement requires consent or approval to be given by a Party, or a Party must or may exercise discretion, the Parties agree that such consent or approval shall not be unreasonably withheld, conditioned, or delayed, and such discretion shall be reasonably exercised. 17.19 No Third Party Beneficiaries. This Agreement has been entered into solely by and between BioD, City, and Affiliate, solely for their benefit. There is no intent by any of the Parties to create or establish a third party beneficiary to this Agreement, and no such third party shall have any right to enforce any right, claim, or cause of action created or established under this Agreement. 17.20 Best Efforts. The Parties shall use and exercise their best efforts, taking all reasonable, ordinary and necessary measures to ensure an orderly and smooth relationship under this Agreement, and further agree to work together and negotiate in good faith to resolve any differences or problems which may arise in the future. 17.21 Definitional Provisions. For purposes of this Agreement, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii) wherever from the context it appears appropriate, each term stated either in the singular or plural shall include the singular and plural; (iii) wherever from the context it appears appropriate, the masculine, feminine, or neuter gender, shall each include the others; (iv) the words "hereof", "herein", "hereunder", and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement; (v) all references to designated "Articles", "Sections", and to other subdivisions are to the designated Articles, Sections, and other subdivisions of this Agreement as originally executed; (vi) all references to "Dollars" or "$" shall be construed as being United States dollars; (vii) the term "including" is not limiting and means "including without limitation"; and, (viii) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute, C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 19 statutory provision, regulation, or similar administrative provision as in force at the date of this Agreement and as may be subsequently amended. XVlII EXECUTION IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties, and shall be effective as of and on the date set forth in Article I of this Agreement. BIODIESEL INDUSTRIES, INC., a Delaware corporation BY: NAME: TITLE: CITY OF DENTON, TEXAS BY: MICHAEL A. CONDUFF City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM HERBERT L. PROUTY, CITY ATTORNEY BY: BIODIESEL INDUSTRIES OF DENTON, INC., C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 20 a subsidiary of Biodiesel Industries BY: NAME: TITLE: ACKNOWLEDGMENTS STATE OF CALIFORNIA COUNTY OF SANTA BARBARA This instrumem is acknowledged before corporation, on behalf of said corporation. me, on this day of , 2004 by of the Biodiesel Industries, Inc. a Delaware Notary Public in and for the State of California STATE OF TEXAS COUNTY OF DENTON This instrumem is acknowledged before me, on this __ day of Conduff, City Manager of the City of Demon, Texas, on behalf of said city. ,2004 by Michael A. Notary Public in and for the State of Texas STATE OF CALIFORNIA COUNTY OF SANTA BARBARA This instrumem is acknowledged before me, on this day of of the Biodiesel industries subsidiary of Biodiesel industries, inc., on behalf of said corporation. ,2004 by of Denton, a C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 21 Notary Public in and for the State of Texas EXHIBIT A MPU The specifications and description of the Modular Production Equipment as referred to in Section 4.1 of this Agreement is as follows. (1) Two, 1,500 gallon reactors with hot water heating coils and plumbing composed of 304 stainless, with circulation pumps and level sensors meeting applicable electrical standards for handling flammable liquids. (2) One, 300 gallon tank for mixing alcohol and catalyst and plumbing, composed of 304 stainless, with circulation pump meeting applicable electrical standards for handling flammable liquids. (3) Two, CINC V-10 centrifuges and plumbing configured with the reactors to separate biodiesel, glycerin and water, and installed to meet applicable electrical standards for handling flammable liquids. (4) Two, drying columns and plumbing designed to remove water from biodiesel. (5) One filter system designed to remove particulates and water from biodiesel. (6) One distillation system designed to remove alcohol from glycerin, composed of stainless steel and and installed to meet applicable electrical standards for handling flammable liquids. (7) One control panels designed to control all electrical functions of the above equipment, with an emergency cut off switch on the panel and on the processing equipment. Panel to be mounted in a remote control room separated from the above described equipment. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 22 EXHIBIT B LETTER OF CREDIT NAME OF BANK: DATE: IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: BENEFICIARY THE CITY OF DENTON, TEXAS C/O CITY MANAGER CITY OF DENTON CITY HALL 215 E. MCKINNEY DENTON, TEXAS 76201 APPLICANT BIODIESEL INDUSTRIES, INC. 435 1/2 EL SUENO ROAD SANTA BARBARA, CALIFORNIA 93110 ATTN: RUSSELL T. TEALL, III AMOUNT USD 500,000.00 FIVE HUNDRED THOUSAND AND NO/100'S US DOLLARS EXPIRATION ,2004 AT BANK OF DALLAS, TEXAS WE HEREBY ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER , IN FAVOR OF THE CITY OF DENTON, TEXAS, AS BENEFICIARY BY ORDER AND FOR THE ACCOUNT OF BIODIESEL INDUSTRIES, INC. AVAILABLE FOR PAYMENT AT SIGHT AT THE COUNTERS OF BANK OF , N.A. FOR U.S. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 23 $500,000.00 (FIVE HUNDRED THOUSAND U.S. DOLLARS) AGAINST ANY ONE OF THE FOLLOWING DOCUMENTATION REQUIREMENTS: 1) A STATEMENT SIGNED BY A PURPORTED OFFICER OF BENEFICIARY STATING "BIODIESEL INDUSTRIES, INC. HAS NOT PERFORMED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE EQUIPMENT SALE, LEASE, AND LICENSE AGREEMENT DATED ,2004 BETWEEN THE CITY OF DENTON AND BIODIESEL INDUSTRIES, INC.", OR 2) A STATEMENT SIGNED BY A PURPORTED OFFICER OF BENEFICIARY STATING "BIODIESEL INDUSTIES, INC. HAS FAILED TO DELIVER A REPLACEMENT LETTER OF CREDIT SATISFACTORY TO BENEFICIARY PRIOR TO THE THIRTIETH DAY PRIOR TO THE STATED EXPIRATION DATE OF LETTER OF CREDIT NUMBER ," OR SPECIAL INSTRUCTIONS: 1) 2) 3) PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED. DOCUMENTS MUST BE PRESENTED AT ,2004. OUR COUNTERS LOCATED AT , DALLAS, TEXAS 75202 NO LATER THAN ALL COSTS RELATED TO DRAWINGS UNDER THIS LETTER OF CREDIT NUMBER SHALL BE CHARGED TO THE ACCOUNT OF THE APPLICANT. WE HEREBY ENGAGE WITH YOU THAT ALL DOCUMENTS PRESENTED IN COMPLIANCE WITH THE TERMS OF THIS CREDIT WILL BE DULY HONORED IF DRAWN AND PRESENTED FOR PAYMENT ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF CREDIT. IF YOU REQUIRE ANY ASSISTANCE OR HAVE ANY QUESTIONS REGARDING THIS TRANSACTION, PLEASE CALL 800- AUTHORIZED SIGNATURE C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 24 EXHIBIT C iNSURANCE REQUIREMENTS Affiliate shall, during the term of this agreement and any extension thereof, maintain adequate insurance coverage as follows: In General. All policies of insurance provided shall be issued by insurance companies qualified to do business in the State of Texas and either (1) listed on the U.S. Department of the Treasury's Listing of Approved Sureties (Department Circular 570) (as amended), or (2) having a current rating of"A-" or better in the most current available A.M. Best Co., Inc.'s, Best's insurance Reports, Property and Casualty Edition. Except in the case of workers' compensation insurance, City and BioD, and their respective officers and employees shall be included as an additional named insureds on all insurance policies. Affiliate shall cause copies of certificates of insurance to be furnished to City and BioD concurrently with or prior to conducting construction-related site inspections, surveys, etc. associated with this agreement. The certificates shall name City and BioD as the certificate holders and as an additional named insured (except in the case of workers' compensation insurance), if requested, Affiliate shall also cause copies of the insurance policies required by this agreement to be provided to City and BioD. Workers' Compensation Insurance. Affiliate shall obtain and maintain during the term of this agreement and any extension thereof workers' compensation insurance with statutory limits as required by laws and regulations for all of Affiliates's employees employed at the Project. o Comprehensive Public Liability and Property Damage Liability Insurance. Affiliate shall secure and maintain during the term of this agreement and any extension thereof a commercial general public liability and property damage liability insurance policy. The policy shall protect City and BioD, and their respective officers and employees from claims for damages for personal injury, including accidental death, and from claims for property damage which may arise from Affiliates's operations under this agreement, whether any such operation be by the Affiliate or by anyone directly or indirectly employed by Affiliate. The C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 25 minimum amounts of such insurance shall be not less than $1,000,000 for each occurrence, and $3,000,000 general aggregate, and $2,000,000 products/completed operations aggregate. Such policy(ies) shall provide coverage for liability resulting from premises/operations, products/completed operations, independent contractors and contractual liability. Automobile Public Liability Insurance. Affiliate shall secure and maintain during the term of this agreement and any extension thereof comprehensive automobile public liability insurance with limits not less than $1,000,000 per occurrence, covering owned, hired, and non-owned automobiles and mobile equipment. o Environmental Impairment Liability Insurance. Affiliate shall secure and maintain during the term of this agreement and any extension thereof Environmental Impairment Liability insurance with limits not less than $1,000,000 per occurrence, covering liability and cleanup costs associated with discharges or releases of chemicals or other forms of pollution. o Property Insurance. Affiliate shall secure and maintain during the term of this agreement and any extension thereof Property Insurance on an All-Risk basis, providing for 100% of the replacement cost of all associated buildings and equipment. C:\DOCUME- 1 \j erichar\L OCAL S- 1 \Temp\B IODIE~ 1. DOC 26 LANDFILL AND DIGESTER GAS RIGHTS AND COLLECTION FACILITY LEASE This Landfill Gas and Digester Gas Rights and Collection Facility Lease ("Lease") is dated as of April __, 2004 by and between the City of DeNon, Texas, a home rule municipal corporation ("Owner" or "Lessor") and DTE Biomass Energy, inc., a Michigan corporation ("DTE" or "Lessee"). Whereas, Lessor owns and operates the City of DeNon Sanitary Landfill located in the City of DeNon, Texas at 1527 S. Mayhill Road (the "Landfill") and the City of Denton Water Reclamation Plant located in the City of Denton at 1100 S. Mayhill Road (the "Water Reclamation Plan Property"), and; Whereas, pursuant to a Request for Proposal by the City of Denton entitled RFSP #3111 - Professional Services CoNract for Design and DevelopmeN of a Biodiesel Production Facility, DTE and Biodiesel industries, inc. made a Proposal dated November 13, 2003, a copy of which is on file in the Offices of the DeNon City Engineer (the "Proposal"), and; Whereas, the Lessor and Lessee desire to enter into this Lease to set forth the terms and conditions of the leasing of Landfill and Digester Gas Rights and a Landfill Gas Collection System to be constructed by Lessor to collect landfill gas for a proposed landfill and digester gas to energy project, and; Whereas, this Lease provides, among other things, for the construction by Lessor of a Preliminary Gas Collection System sufficieN in scope to supply the City's Biodiesel Production Facility ("BP Facility") with all the Landfill Gas required to operate the BP Facility and to provide for a Preliminary Gas Collection System sufficieN in scope to allow DTE to do a feasibility study to determine whether or not Landfill Gas and Digester Gas can be extracted and sold in Commercial QuaNities, and; Whereas, this Lease is coNingeN upon Landfill Gas and Digester Gas being sold in Commercial Quantities to a Customer, and Lessor agreeing to construct an expanded Gas Collection System by Lessor sufficient in scope and size to permit the consummation of a Landfill Gas and Digester Gas for the Project, and; Now, therefore, in consideration of the mutual covenants and agreements set forth herein, Lessor and Lessee agree as follows: 1. Definitions 1.1 "BTU/cf'shall mean British Thermal Units per cubic feet and is defined as a unit of energy equal to the heat needed to raise the temperature of one pound of water from sixty (60) degrees Fahrenheit to sixty-one (61) degrees Fahrenheit at a constaN pressure of one standard atmosphere. The BTU equivalent on a dry basis at 14.65 psia may be obtained by multiplying the BTU so measured by the factor 1.012. 1.2 "Collection System or Gas Collection System" means the network of recovery wells and interconnecting pipes together with attendant valves, pumps, monitoring devices and other extraction related equipment installed for the purpose of extracting and recovering Landfill Gas, including a blower sufficient to deliver the Landfill Gas to a flare, a condensate recovery system, a flare, gas meter, including any expansions thereof, including expansions to the Preliminary Gas Collection System to sell Landfill Gas to a Customer. 1.3 "Commercial Quantities" Commercial Quantities shall mean volumes of Landfill and Digester Gas for sale deemed by Lessee to be sufficient in amount for the Project to be economically viable. Recovery and sale of Landfill Gas and Digester Gas in average monthly volumes of more than 1000 SCFM and more than a heating value of 450 btu/CF is presumptively deemed to be Commercial Quantities. 1.4 "Customer" shall mean any suitable Landfill Gas and Digester Gas Purchaser within a reasonable distance of the Landfill. 1.5 "Digester Gas" shall mean methane, carbon dioxide and other constituent products produced by the anaerobic decomposition of waste water and sludge at the sewage treatment plant adjacent to the Landfill. 1.6 "Delivery Point" shall be at a meter near a flare with blower on the Landfill. 1.7 "Gross Revenues" shall mean the total receipts from sales of Landfill and Digester Gas to Customer. 1.8 "Expanded Gas Collection System" is that portion of the Gas Collection System built or to be built in addition to the Preliminary Gas Collection System. 1.9 "Feasibility Study" shall mean a study performed by Lessee as soon as practicable after the Effective Date to determine whether or not Landfill or Digester Gas can be sold in Commercial Quantities. In no event shall such study be completed later than 2 years from the Effective Date minus the reasonable time necessary to complete construction of the Gas Collection System. 1.10 "Landfill Gas" shall mean methane, carbon dioxide and other constituent products produced by the anaerobic decomposition of refuse material within the Landfill. It is personal property and does not include oil, gas, or other mineral interests in real property. 1.11 MMBTU shall mean one million BTUs. 1.12 "Preliminary Gas Collection System" shall mean that portion of the Collection System built by the City of Denton in support of Biodiesel Production. 1.13 "Project" shall mean all activities and efforts associated with the recovery and sale of Landfill Gas and Digester Gas and their delivery to a Customer. 1.14 "Project Schedule" shall mean the proposed schedule attached hereto as Exhibit "A" and made a part hereof by reference. 1.15 "SCFM" shall mean standard cubic feet of Landfill Gas and Digester Gas per minute, measured at sixty degrees Fahrenheit (60 degrees F.) and at a pressure of fourteen and seventy- three one hundredths (14.73) pounds per square inch absolute (psia). 2. Term This Lease shall become effective on the Effective Date and shall continue for a term of twenty (20) years. 3. Rights Granted to Lessee Subject to the provisions of this Lease, Lessor hereby grants to Lessee the following: 3.1 Landfill and Digester Gas. The exclusive right to explore for, extract, collect, process, use, sell and deliver all Landfill Gas in the Landfill and Digester Gas from the City's Wastewater Treatment Plant, except that Landfill Gas which is required for the Biodiesel Production Facility. This right is subordinate to Lessor's right to use the Landfill for landfill purposes and its right to use the Water Reclamation Plant Property for water reclamation purposes. However, Lessor agrees to cooperate with Lessee in all reasonable manners necessary to carry out Lessee's rights under this Lease. 3.2 Gas Collection System. The exclusive right to use and operate a Gas Collection System at the Landfill other than that which is required for the BD Facility, subject to the Lessor's rights set forth in Section 3.1. Such right and related activities encompasses the right to conduct all activities necessary and incidental to the operation and maintenance of a Gas Collection System, which includes the right to install underground gas transmission pipes, operate associated gas collection equipment, etc. The cost of additional well drilling will be bom by the Lessor. Any Landfill Gas realized from such drilling will augment the Landfill Gas supply. The Lessor has the obligation to construct the Gas Collection System in a manner suitable for use by the Biodiesel Production Facility. The operator of the Biodiesel Production Facility is entitled to use the Gas Collection Facility for use by the Biodiesel Facility at no cost. The cost of operation and maintenance of the Gas Collection Facility, and related pipeline, if any, to the Customer shall be bom by Lessee provided that: (1) the Landfill Gas and Digester Gas volumes and quality produced by the Landfill and Wastewater Treatment Plant meet the standard of Commercial Quantities as defined in Paragraph 1.3, and; (2) The Gas Collection System is suitable for use by both the Biodiesel Production Facility and the Customer. Failure to complete the entire Gas Collection System, as designed by the Lessee, over and above the Gas Collection System portion required for the Biodiesel Production Facility, within two years after Lessee's determination that Landfill Gas and Digester Gas can be economically recovered as provided in Section 8 is grounds for termination by the Lessee. Failure to complete that portion of the Gas Collection System portion required for the Biodiesel Production Facility, within six months of the Effective Date of this Lease is also grounds for termination by the Lessee. 3.3 Plant Site. Lessor shall make available to Lessee, a mutually acceptable site of approximately two hundred feet (200 ft.) by three hundred feet (300 ft.) in size to accommodate the construction and operation of the gas processing plant and related facilities for $1.00 per year and other good and valuable consideration. Lessee shall have the right of free ingress and egress at all times to and from such site for itself and its customers, provided that such ingress and egress is consistent with appropriate security measures imposed by Lessor and is subordinate to Lessor's use of the Landfill for landfill purposes. Lessor and Lessee shall in good faith mutually agree on a suitable location or locations for such access that does not interfere with Lessor's Landfill operations. 4. Payments To Lessor 4.1 Royalty/Lease Payment. Lessee agrees to pay Lessor twelve and one-half percent (12.5%) of Gross Revenues from the sale of Landfill Gas and Digester Gas to all Customers exclusive of any applicable taxes to the Project provided that Landfill Gas and Digester Gas volumes and quality conform with the definition of Commercial Quantities found in Paragraph 1.3 hereof. Landfill Gas provided to the Biodiesel Production Facility is not subject to royalty payments. These royalty/lease payments shall be paid each calendar quarter to Lessor on or before the last day of the month following the close of the calendar quarter (the "End of the Quarter") with the first payment being due and payable at the End of the Quarter immediately after the Gas Collection System and gas processing plant become operational. Along with such payments Lessee shall provide documentation to Lessor evidencing all Gross Revenues and deductions for taxes. Lessor shall have the right at all reasonable times to audit the records of Lessee to determine that the royalty/lease payments have been properly computed. 4.2 Contingent Lease Payments. Lessee represents that the sale of Landfill Gas from the Landfill does not currently entitle Lessee to claim Internal Revenue Code Section 29 Production Tax Credits. In the event Congress enacts Production Tax Credits, entitling Lessee to claim such credits or benefits, Lessee agrees to pay Lessor a further additional Lease payment equal to twenty (20%) percent of the value of those new tax credits or benefits. 5. Lessee's Obligations Lessee agrees to: (a) (b) Conduct a Feasibility Study to confirm that Landfill Gas and Digester Gas are available in Commercial Quantities. Provided Commercial Quantities are available, design, operate and maintain the Gas Collection System. Lessor shall have to right to monitor Lessee's performance of such. Nothing in this Lease shall be construed as Lessee assuming any of those obligations imposed by law upon Lessor as owner of the Landfill, including compliance with environmental laws, unless such obligations are caused by Lessee or are expressly assumed by Lessee. 6. Lessor's Obligations Lessor agrees to: (a) cooperate in the construction, development and operation of its Landfill, Wastewater Treatment Plant and the Collection System so as to maximize the production of Landfill Gas and Digester Gas and the transportation of Landfill Gas and Digester Gas to the Delivery Point; (b) not unreasonably interfere with the Lessee's operation of the Project or cause the disruption or destruction of the biological decomposition of refuse material within the Landfill; (c) prevent any of its independent contractors from committing such interference, disruption, or destruction; (d) promptly repair all cracks, fissures, erosion or physical changes in, of, or to, the interim and final covers at the Landfill which have an adverse material effect on the production of Landfill Gas; (e) cooperate in the construction, development, operation and maintenance of the Project and the Collection System at the Landfill; (f) comply with all applicable federal, state, county, municipal and local laws, statutes, rules, regulations, ordinances, codes, restrictions, requirements, obligations and permitting requirements relating to the management and operation of the Landfill, including all environmental laws pertaining to the Collection System, provided such laws are specifically imposed upon Lessor and have not been imposed upon Lessee or expressly assigned and accepted by Lessee and; (g) approve in a timely manner all Project design plans, specifications, and requisite construction activities which involve Lessor's property. (h) construct the pipeline from the Waste Water Treatment plant to the Landfill flare and construct the entire Gas Collection System as designed by Lessee following the conclusion of a favorable Feasibility Study by Lessee. 7. Emission Credits To the extent Pollution Control Emission Credits are available to the Project, the value of such Emission Credits, if any, shall belong to Lessee. 8. Special Right to Terminate Within two years after the Effective Date of this Lease, Lessee, at its sole expense, shall conduct a Feasibility Study as it deems appropriate in order to determine whether Landfill Gas and Digester Gas can be economically recovered from the Landfill and Wastewater Treatment Plant in Commercial Quantities and whether such Commercial Quantities can be economically delivered to a Customer. In the event that Lessee's Feasibility Study establishes, in its sole judgment, that the Landfill Gas from the Landfill and Digester Gas from the Wastewater Treatment Plant are not suitable for the economic recovery and processing in Commercial Quantities for the Customer, Lessee shall give written notice to Lessor of such judgment. Thereafter, all rights of Lessee under this Lease shall terminate without further liability on the part of either party to the other hereunder. 9. Lessee Facilities 9.1. Lessee shall not be responsible for the construction, operation and maintenance of the BP Facility, such construction, operation and maintenance being under separate agreement between the Lessor and Biodiesel Industries, Inc. 9.2. Lessee shall be responsible for the design, operation, and maimenance of the Gas Collection System and the construction of the pipeline from the Delivery Point to the Customer at its expense, following the conclusion of a favorable Feasibility Study. 9.3. Lessor shall be responsible for the construction of the Preliminary Gas Collection System and, assuming the conclusion of a favorable Feasibility Study by Lessee, shall also be responsible for constructing the Expanded Gas Collection System, related infrastructure lying within the Landfill property boundaries and the pipeline from the Waste Water Treatment Plant to the landfill flare, at its expense. 10. Surrender. Upon thirty (30) days notice to Lessor, Lessee may at any time or times, surrender and terminate this Lease without liability, if (1) Lessee is prevemed due to no fault of its own to meet the milestones set forth in Exhibit A emitled Project Schedule. or (2) Landfill Gas cannot be recovered or sold from the Landfill, in Commercial Quamities, and Lessee thereby is relieved of all obligations except for surrendering the Gas Collection System and gas processing plant and related facilities in good operational condition, performing removal and restoration activities in accordance with Section 12, and making full paymem to Lessor for obligations in Section 4 of this lease. 11. Lessor and Lessee Rights 11.1. Landfill Use. Lessee shall be authorized to use the Landfill, upon notification to Lessor, without cost, to the extent reasonably necessary or convenient for Lessee to carry out its obligations hereunder. Such use is subordinate to Lessor's use of the Landfill for Landfill purposes. 11.2. Oil, Natural Gas, Mineral Rights. This Lease shall not be deemed to gram Lessee any rights or interests in any oil, natural gas, or other minerals located in the Landfill real property but is only a lease of Landfill Gas and Digester Gas. 11.3. Cooperation in Obtaining Authorization. Upon request by Lessee, Lessor shall reasonably assist Lessee in any proceedings, hearings or other procedures necessitated by any required zoning laws, environmental impact reports, governmental permits, authorizations and similar type requirements, related to the Project and the construction and operation of Lessor's wells, collection system, and gas processing equipmem. Upon request, Lessee shall assist Lessor in briefing the officials of any governmental agency or body, or any other imerested party, with respect to the status of the Project. 11.4. Removal of Facilities. At Lessor's option, Lessee shall have an obligation, within six (6) momhs after the expiration or termination of this Lease, to remove the above-ground property, fixtures and improvemems which Lessee has placed on or adjacem to the Landfill and to cap any transmission gas lines at the boundary of the Landfill. There will be no Lessee obligation to remove underground property, fixtures and improvements which Lessee has placed underground in or adjacent to the Landfill. Lessee hereby grants to Lessor an option to purchase any of such above-ground property, fixtures and improvements (the "Option Improvements") at a price equal to Lessee's cost of the Option Improvements. The cost of the Option Improvements will be established within 90 days after the completion of any and all of the Option Improvements by written notice from Lessee to Lessor along with supporting documentation to establish such cost (the "Option improvements Price"). Within 90 days after the expiration or termination of this Lease, Lessor may elect to purchase the Option Improvements, or any part thereof, for the Option improvements Price, or applicable price of a part thereof, by providing Lessee written notice of the election of the option. The purchase of the Option improvements will be consummated within 90 days thereafter. At closing, in exchange for the Option improvements Price, Lessee shall deliver to Lessor a bill of sale transferring the Option Improvements to Lessor, free and clear of all debts and liens. Lessee grants an option only on that equipment which was installed by Lessee. 11.5. Surface Restoration. Lessee shall, upon expiration or termination of this Lease, generally restore the surface of the Landfill affected by its operations to its condition at the commencement of this Lease to the extent reasonably possible. Pipes on landfill easements shall be sealed and capped at Landfill property boundary. 11.6. Return to Landfill Matter. Lessee shall, in connection with its operations on the Landfill, have the right in its sole discretion, to return to the Landfill consistent with Lessor's Landfill operating permits and environmental regulations any and all matter either solid or liquid (including all condensate from the Project). 12 Warranty Lessor makes no warranty of title express or implied to the Landfill Gas and Digister Gas. Lessor covenants to Lessee the right of quiet enjoyment of the use of the Gas Collection System so long as Lessee is not in default. Lessee acknowledges that the Landfill Gas and Digester Gas is personality and not an oil, gas, or mineral interest in real property. 13 Default 13.1 Default by Lessee. In the event that Lessor concludes that Lessee's operations, excluding the provisions of the Project Schedule, are at any time not being conducted in material compliance with the provisions of this Lease, or fails to actively and diligently pursue or operate the facilities under this Lease, Lessor shall notify Lessee in writing of the facts relied upon as constituting a default hereunder, and Lessee, if in default, shall have ninety (90) days after receipt of such notice in which to complete or substantially complete compliance with such provisions. Lessor shall have the right to terminate this Lease upon written notice to Lessee if Lessee fails to complete or substantially complete such compliance efforts within the ninety (90) day period, unless such failure is excused by the provisions of Section 16 hereof, if compliance within ninety (90) days is not reasonably possible and Lessee has commenced and is diligently pursuing such compliance efforts, Lessee may be allowed additional time to complete compliance, not to exceed an additional ninety (90) days, but only if written notice of an extension is given to Lessor within the first ninety (90) day period. Notwithstanding anything contained herein to the contrary, upon termination of this Lease, due to a default by Lessee the Gas Collection System shall revert back to Lessor in good operating condition at no cost to the Lessor and the Landfill Gas rights shall be surrendered to Lessor. 13.2 Default by Lessor. In the event that Lessee concludes that Lessor at any time is failing to perform or observe any of the provisions of this Lease required to be performed or observed by Lessor, Lessee shall notify Lessor in writing of the facts relied upon as constituting a default hereunder, and Lessor, if in default, shall have ninety (90) days after receipt of such notice in which to complete or substantially complete compliance with such provisions. Lessee shall have the right to terminate this Lease upon written notice to Lessor if Lessor fails to complete or substantially complete such compliance efforts within the ninety (90) day period, unless such failure is excused by the provisions of Section 17 hereof. If compliance with ninety (90) days is not reasonably possible and Lessor has commenced and is diligently pursuing such compliance efforts, Lessor may be allowed additional time to complete compliance, not to exceed an additional ninety (90) days, but only if written notice of an extension is given to Lessee within the first ninety (90) day period. 14 Indemnification 14.1 Lessor shall defend, indemnify and hold Lessee harmless from and against any and all claims, demands, actions, proceedings, liability or losses, of whatsoever nature (including reasonable attorney's fees) for injury or death to person(s) or for damage or loss to property arising out of or caused by Lessor's operations or activities in connection with the Landfill, or any contiguous or non-adjacent property under Lessor's control except to the extent such injury, damage or loss is caused by the wrongful acts or negligence of Lessee. 14.2 Lessee shall defend, indemnify and hold Lessor harmless from and against any and all claims, demands, actions, proceedings, liability or losses, of whatsoever nature (including reasonable attorney's fees) for injury or death to person(s) or for damage or loss to property arising out of or caused by Lessee's operations or activities in connection with the Project or any contiguous or non-adjacent property under Lessee's control except to the extent such injury, damage or loss is caused by the wrongful acts or negligence of Lessor. 14.3 The Lessor and the Lessee agree that in any action based on an allegation of joint negligence on the part of the Lessor and the Lessee that each party shall only be responsible for that portion or percentage of any damages awarded which is directly attributable to the negligence of that party. 14.4 The Lessor and the Lessee must provide the other prompt and timely notice of any event covered which, in any way, directly, indirectly, contingently or otherwise, affects or might affect the other. The Lessor may compromise and defend the same to the extent of its own interests. 15. insurance Lessee shall, during the term of this Lease, maintain adequate insurance coverage as follows: ao In General. All policies of insurance provided shall be issued by insurance companies qualified to do business in the State of Texas and either (1) listed on the U.S. Department of the Treasury's Listing of Approved Sureties (Department Circular 570) (as amended), or (2) having a current rating of "A-" or better in the most current available A.M. Best Co., Inc.'s, Best's Insurance Reports, Property and Casualty Edition. Except in the case of workers' compensation insurance, Lessor shall be included as an additional named insured on all insurance policies. Lessee shall cause copies of certificates of insurance to be furnished to Lessor concurrently with or prior to conducting construction-related site inspections, surveys, etc. associated with this Lease. The certificates shall name Lessor as the certificate holder and as an additional named insured (except in the case of workers' compensation insurance), if requested, Lessee shall also cause copies of the insurance policies required by this Lease to be provided to Lessor. bo Workers' Compensation Insurance. Lessee shall obtain and maintain during the term of this Lease workers' compensation insurance as required by laws and regulations for all of Lessee's employees employed at the Project. Co Comprehensive Public Liability and Property Damage Liability Insurance. Lessee shall secure and maintain during the term of this Lease a commercial general public liability and property damage liability insurance policy. The policy shall protect Lessee and Lessor from claims for damages for personal injury, including accidental death, and from claims for property damage which may arise from Lessee's operations under this Lease, whether any such operation be by the Lessee or by anyone directly or indirectly employed by Lessee. The minimum amounts of such insurance shall be not less than $1,000,000 for each occurrence, and $3,000,000 general aggregate, and $2,000,000 products/completed operations aggregate. do Automobile Public Liability Insurance. Lessee shall secure and maintain during the term of this Lease comprehensive automobile public liability insurance with limits not less than $1,000,000 per occurrence, covering owned, hired, and non- owned automobiles. eo Environmental Impairment Liability Insurance. Lessee shall secure and maintain during the term of this Lease Environmental Impairment Liability insurance with limits not less than $1,000,000 per occurrence, covering liability and cleanup costs associated with discharges or releases of chemicals or other forms of pollution. f. Property Insurance. Lessee shall secure and maintain during the term of this Lease Property insurance on an All-Risk basis, providing for 100% of the replacement cost of the Gas Collection System and associated buildings and equipment. 16 Force Majeure 16.1 If by reason of Force Majeure either party is unable to carry out, either in whole or in part, its obligations herein contained, such party shall not be deemed in default during the continuation of such inability. In this clause, "Force Majeure" means an exceptional event or circumstance: (a) which is beyond a party's control, (b) which such party could not reasonably have provided against before entering into this contract, (c) which, having arisen, such party could not reasonably have avoided or overcome, and (d) which is not substantially attributable to the other party. 16.2 Force Majeure may include, but is not limited to, the following events or circumstances, so long as all these conditions (a) through (d) above are satisfied: (i) acts of God, including but not limited to, winds, hurricanes, tornadoes, fires, epidemics, landslides, floods or earthquakes; (ii) strikes, lock-outs or other industrial disturbances by persons other than personnel and other employees of the parties; (iii) acts of public enemies; and (iv) military action, war, whether or not it is declared, sabotage, riots, civil disturbances or explosions. 16.3 Lessor and Lessee agree that: (a) the non-performing party, within two weeks after the occurrence of the Force Majeure, shall give the other party written notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is required by the Force Majeure; (c) no obligations of either party which arose prior to the occurrence causing the suspension of performance shall be excused as a result of the occurrence, and; (d) the non-performing party shall use its best efforts to remedy with all reasonable dispatch the cause or causes preventing it from carrying out its obligations. Notwithstanding the foregoing, the other party may, at its option, terminate this Lease after six months of any such suspension of performance. 17. Assignment 17.1 Assignment. Neither party hereto may sell, encumber, assign or transfer this Lease or any interest it may have herein, without the express written consent of the other party, and upon such written notice the terms, conditions and provisions of this Lease shall extend and apply to and shall be binding upon the respective heirs, administrators, executors, successors, assigns and delegates of said party. Upon any such sale, assignment of transfer of a party's interest herein, the transferring party shall be relieved of any further obligation hereunder as to the interest sold, assigned or transferred. Notwithstanding the foregoing, either party may assign this Lease to an affiliate at least fifty percent (50%) owned without first obtaining the other party's consent. 17.2 Change of Ownership of Landfill. No change or division in ownership of the Landfill or assignment of the amounts due hereunder shall operate to enlarge the obligations or diminish the rights of Lessee, and no change, division or assignment of 10 such rights shall be binding upon Lessee umil thirty (30) days after Lessee has been furnished with the original or a certified copy of the recorded instrument evidencing the same. 18. Notices Any notice to be given under this Lease shall be in writing and shall be deemed to have been properly given and received (i) when delivered in person or via facsimile to the authorized represemative of the party to whom the notice is addressed, or (ii) on the date received as indicated on the return receipt when sent by prepaid certified or registered mail, return receipt requested, to the party to be notified at its address, as follows: To Lessee: Mr. Curtis T. Ranger, P.E. President DTE Biomass Energy, Inc. 425 South Main Street, Suite 201 Ann Arbor, Michigan 48104 Fax No. 734 668-1541 To Lessor: Charles W. Fiedler, P.E. Director of Engineering City of DeNon 601 E. Hickory, Suite B Denton, TX 76205 Fax No. 940 349-8951 Either party may change such represemative or address by written notice of said change of representative or address given to the other party. 19 General Provisions 19.1 Successors. The provisions of this Lease shall insure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, personal representatives, administrators, successors and assigns. 19.2 Express Obligations. All obligations of Lessee and Lessor under this Lease are expressly stated, and no other obligations or covenants are to be implied hereunder. 19.3 Entire Lease. This Lease is intended by the parties to constitute a complete and exclusive expression of the agreement with respect to the subject matter hereof. 19.4 Modifications. This Lease shall not be changed or modified except by a subsequent agreement in writing signed by both parties. 19.5 Waiver. The waiver by either party of any failure on the part of the other party to perform in accordance with any of the terms or conditions of this Lease shall not be construed as a waiver of any future or cominuing failure, whether similar or dissimilar thereto. 11 19.6 Captions. Section and paragraph captions are inserted for identification purposes only and are not a part hereof. 19.7 Law and Venue. This Lease shall be construed under the laws of the State of Texas and is fully performable in Denton County, Texas or the appropriate U.S. District Court. Exclusive venue for a lawsuit enforcing the terms and conditions of the Lease shall be a court of competent jurisdiction in Denton County, Texas. 19.8 Council Approval. This Lease shall become effective upon its approval by the Demon City Council. The parties hereto have executed this Lease as of the day and year first above written. CITY OF DENTON, TEXAS BY: Michael A. Conduff City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: DTE Biomass Energy, Inc. By: Curtis T. Ranger, President 12 AKNOWLEDGEMENTS STATE OF TEXAS COUNTY OF DENTON This instmmem is acknowledged before me, on this day of , 2004 by Michael A. Conduff, City Manager of the City of Demon, a municipal corporation, on behalf of said municipal corporation. Notary Public in and for State of Texas STATE OF MICHIGAN COUNTY OF This instmmem was acknowledged before me on this day of ,2004 by Curtis T. Ranger, President of DTE Biomass Energy, a Michigan corporation, on behalf of said corporation. Notary Public in and for State of 13 EXHIBIT A PROJECT SCHEDULE The following schedule lists several significam activities that are included within the Project Scope. These dates represem milestone targets as described in the City of Demon's Landfill Gas Rights and Collection Facility Lease. Date 04/1/04 07/1/04 10/1/04 10/1/06 12/1/06 04/1/07 Activity Execute the Landfill Gas Rights and Collection Facility Lease Approve preliminary wellfield and plato site design Begin operation of Preliminary Wellfield Execute a Landfill Gas Sales Agreement Permit pipeline and plant site construction Initiate commercial Landfill Gas sales Denver iee6;iens!! Support ©f{iee Office of Energy Efficiency and Renewable Energy U.S, Depadment of Energy March 4, 2004 TO: Mayor Euline Brock and City Council Members FROM: U.S. Department of Energy SUBJECT: Letter of Support - Biodiesel Processing Plant Powered by Landfill Gas It has come to my attention that the City .of Denton is considering an innovative project to extract landfill gas and utilize some of it to po'wet a biodieseI processing plant. Biodiesel is one of the alternative fuels approved under The Energy Policy Act of I992 for use in vehicles. The use ofbiodiesel from the proposed project in the City of Denton's and other surrounding communities diesel vebJcle fleets ira blends from B-5 to B-20 not only would have air quality benefits, but would replace use of a certain percentage of diesel fuel depending on the blend utilized. The proposed project, would help decrease our nation's dependence on imported oil, which reached a record 63 percent 2003. Also the project would provide a so.ce of supply for biodieseI which is not currently available in the area. The U.S. Department of Energy commends you for yom' eftbrts to consider use of a renewable fuel - landfill gas and use some of it to produce biodiesel. If irpq~lemented~ this project could serve as an excellent example for other communities across the nation. Please contact me at 972-491-7276, if I can be of any assistance. Dallas Duty Station 7937 Cross Plains Drive Piano, Texas 75025 Phone: 2t4/49I~7276 Fax: 214/491-7292 Prin~ed with soy ink on recycled ~paper ~ EXHIBIT 6 Fuel Vehicles for ~or:l~ Texas March 4, 2004 The Honorable Euline Brock Mayor City of Denton 215 E. Mc,Kinney Denton, 'TX 76201 Dear Mayor Brock: Please consider this letter of support from the Dallas-Fort Worth (DFW) Clean Cities Coalition for the City of Denton's implementation of a biodiesel production facility and usage of said fuel in the city's fleet. As you may be aware, the DPW Clean Cities Program is part of the U.S. Department of Energy's (DOE) National Clean Cities Program. These progressive steps to reduce your city's diesel fuel consumption and emissions is one of the main goals of the National Clean Cities Program initiative, to enhance our nation's energy security by reducing our dependence on 'foreign oil. The proposed biodiese! production facility and usage of biodiesel in the city's fleet could potentially displace 300,000 gallons of petroleum diesel per year. This would be a huge step in the right direction and would facilitate the goal of the National Clean Cities Program of using one billion gallons of alternative fuel per year by 2010.. This biodiesel project will be a first of its kind in North Texas, which is really thrilling to the DFW Clean Cities Program and national leaders. I would like to commend and encourage the City of Denton's efforts to displace fossil fuels and implement alternative fuel options. Denton has always been a leader in the clean fuels movement in North Texas, and has been an extremely active member of. the DFW Clean Cities Coalition. The City of Denton is se~ing a positive precedent by taking proactive efforts to not only utilize, but to also locally produce its renewable fuels. This project is not only an exciting venture for the City of Denton, but for all of North Texas. Please contact me at (817)608-2346 or mmize@nctcocl.orq if you have any further questions. Sincerely, Mindy Mize DFW Clean Cities Coordinator MM:Ik cc: Michael Conduff, City Manager, City of Denton 2003-2004 UPWP Element 6.10 Project File P. O. Box 5888 Arlington, Texas 76005-5888 (817) 640-3300 FAX 817-640-3028 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES February 23, 2004 Draft After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, February 23, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bill Cheek, Yolanda Guzman, George Hopkins, Charldean Newell, Dick Smith and Don White EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: ITEMS FOR INDIVIDUAL CONSIDERATION: 3) Receive a report, hold further discussion and give staff direction on the results of the feasibility study and its financial considerations to develop a landfill gas (LFG) management and bio-diesel production system. Vance Kemler, Director of Solid Waste, presented this item. Charles Fiedler, Director of Engineering, was also presem and imroduced Ed Snyder, Deputy City Attorney, who was available to answer the Board's legal questions. Russell Teal, iii, President of Biodiesel Industries, Inc., was also in attendance. The feasibility study was completed and presemed to the Public Utilities Board at their meeting of January 26, 2004. During this meeting, the Board requested additional information on the long-range financial plan and proforma projections. Fiedler provided proforma documems, which included projections of the project capital requiremems and operational costs and revenues. Hopkins questioned the economics of the proposal and said he could justify the proposal only as a result of the avoided cost. Based on the avoided cost issue he would support the proposal Cheek moved to approve a capital expenditure cost for a landfill gas collection system in the amount of $160,000 and the biodiesel system in the amount of $650,000, for an approximate total of $810,000. Board Member John Baines seconded the motion. The motion was approved by a vote of 7-0. PUBMINSDRAFT22304 Page 1 of l EXHIBIT 7 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 23, 2004 Legal Herbert L. Prouty, City Attorney SUBJECT Resolution of the City of Denton, Texas urging the Texas Legislature to adopt School Finance Reforms that would not adversely affect city revenues and economic development efforts; and providing an effective date. BACKGROUND The Texas public education system faces severe challenges. The current school finance system relies too heavily on local property taxes. Already, half of the 1,100 school districts levy taxes at or near the statutory cap of $1.50 for Maintenance and Operations. The Joint Committee on Public School Finance was created by Lt. Governor David Dewhurst and House Speaker Tom Craddick to address this issue. The Committee is charged to recommend innovative ways that the Legislature might fulfill its obligation to public education, while reducing the reliance on local property taxes. The Joint Committee's charges included reviewing our tax system and assessing different options for public school funding. The committee is studying the entire public school enterprise, including appropriate funding levels for high academic performance; adjustments for legitimate student and school district cost differences; the role of the state in providing school facilities; and incentives for improved student performance and cost- effective operation. School and district practices that contribute to high academic performance and cost-effective operation. The timeline indicates that the report will be complete in April of 2004 and that Governor Perry may call a special session on School Finance. This resolution would direct the Mayor, Council and city staff in communicating the City of Denton's position to state legislators on this critical issue. OPTIONS 1. The City Council may pass the resolution or direct staff to add or delete certain provisions and then pass the resolution; or 2. The City Council may decline to adopt the resolution. FISCAL IMPACT This legislative effort will help to preserve city revenues. Respectfully submitted: Herbert L. Prouty City Attorney S:\Our Documents\Legislation\04 State\School Finance Resolution.doc RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS URGING THE TEXAS LEGISLATURE TO ADOPT SCHOOL FINANCE REFORMS THAT WOULD NOT ADVERSELY AFFECT CITY REVENUES AND ECONOMIC DEVELOPMENT EFFORTS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, it is likely that the Texas Legislature will address school finance and tax system reforms in the near future; and WHEREAS, during deliberations by the Texas Legislature, proposals to limit the ability of cities to collect property taxes and sales taxes are likely to be offered by some members of the Legislature; and WHEREAS, additional restrictions on city taxes fly in the face of a history of frugal tax administration by Texas cities; and WHEREAS, all Texas cities combined collect only 15.3 percent of all property taxes collected in the State of Texas, while schools collect more than 60 percent; and WHEREAS, between 1985 and 2002, the municipal share of all property tax revenue fell from 20.3 percent to 15.3 percent; and WHEREAS, adjusted for inflation, municipal property taxes went up by only 37 percent between 1985 and 2002, while population grew by 33 percent, demonstrating that growth in municipal property tax levies roughly matched population growth; and WHEREAS, in 1994 Denton voters have approved a ½ cent sales tax to reduce property taxes, which dropped the city tax rate from .747/$100 to .56/$100; and WHEREAS, in 2000 Denton voters passed a 5 cent tax increase proposed by a Blue Ribbon Bond Committee for capital improvements, which the City Council did not fully implement because of the downturn in the economy, showing that the Denton City Council is fully responsible; and WHEREAS, since 1994, there has been a 36 percent decrease in the City of Denton's property tax; and WHEREAS, Texas cities rely on tax revenue to build basic infrastructure, to ensure public safety through police and fire departments, and to provide numerous essential services for city residents, who are 80 percent of the state's population; and WHEREAS, Texas cities engage in numerous economic development activities that produce jobs and revenue for the entire State of Texas; and WHEREAS, cities must meet the challenges of homeland security and compliance with state and federal mandates, many of which are unfunded mandates; and WHEREAS, Texas cities have shown over the years that they are fiscally responsible and good stewards of taxpayers' money; and WHEREAS, efforts to limit the ability of cities to collect sales and property tax revenues or to set tax rates would have severe negative impacts on city services, city employees, economic development efforts, and ultimately the citizens of the State of Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the governing body of the City of Denton urges the Texas Legislature to adopt all school finance or tax reform that will not negatively impact the ability of the City to provide basic essential services, conduct economic development activities, and ensure public safety by limiting our ability, beyond the provisions of current law, to collect property tax or sales tax revenues. SECTION 2. That the Mayor, City Council and City Staff shall communicate the City of Denton's positions on proposed school finance reforms to members of the Texas Legislature. SECTION 3, This resolution shall be effective immediately. PASSED AND APPROVED this the __ day of _, 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: March 23, 2004 City Manager's Office Mike Conduff, City Manager SUBJECT Consider nominations and appointments to the City's Boards and Commissions. BACKGROUND Council Member Redmon has a nomination to the Historic Landmark Commission due to the death of Mildred Hawk. Mayor Brock has two appointments to the Denton Housing Authority. Council may wish to suspend the rules and vote on any nominations made at this meeting. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary INFILL DEVELOPMENT What are we asking the City Council to d_.q today? · Hear a briefing on issues r¢lating to infi[I development policies and implementation tools; and · Provide m with direction on those policies and programs. ~'~' / Why are we reviewing the City's infill development policies? In response to a request from City Council, City staffis: What is infill development? · Bypassed ~ · Underused What inflll development policies are contained in the Denton Plan? 2~) universities, (PAGE24) Policies (cunt.) Compatlbility. De velopm~nt should Policies (cont.) oomp~ffbility with existing How much vacant land is located within possible infill boundary? Policies (cont.) Where are inflll sites located in Denton? Properties rezoned for |nfill* Percentage of properties rezoned for infll]* Percentage of propertie~ rezoned for infill* by land use Location of cases approved and denied rezoning for development Properties denied inffil zoning Rezoned and developed prior to Development Code (cont.) Properties rezoned and developed for infill orior to adoption of Development Code What other inffil development has occurred prior to adoption of the Denton Code? Z01-0017, Bluffvicw Villas Z01-0020, 1604 N. Elm Z01-0024, Suliette's Jewels 211 Oak 3 Other infill development prior to Denton Code? ~ Single-family Subdivision Properties rezoned and developed for infig since adoption of Development Code What other inffll development has occurred since adoption of Denton Code? Other infill development since Denton Code? 2121 University, Sherwin-Williams Paints Other infill development since Denton Code? Are other cities encouraging infill development? What recommendations do we propose to supplement the City's current infill development policies? 1. Gain community acceptance 2. Establish Infil] Policy and Program 3. Establish boundary for targeting infill development 4. Amend zoning and development regulations 5. Encourage usc of overlay zoning 6. Develop comprehensive inventory of infill and redevelopment properties Recommendations (cont.) 7. Establish aggressive program to acquire property for land banking, land assembly and/or land trausfer 8. Aggressively market infill and redevelopment sites 9. Participate in infrastructure cost sharing 10.Establish financial incentives program specifically for infill development 11 .Develop and implement neighborhood/small area plans for areas within infill development boundary · Questions · Comments 5 2 Z oz ~ ~ z z z ~.-< _~.~ '" ~ ~ o o o ~" ~ m .5' ~'~ o Z · '< '~' '~ z -o= z ~ o ~' ~' z ~ ~ ~ Z ~ Z Z m ~-- o~ ~ ~ o ~ = z z m z z <~ ~ z ~, o o o ~ ~ ~ o m o ~ o ~ ~ ~.~ ~-7 m = .... ~ ~ ~ m -. ~B~ o~~