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May 13, 2003 Agenda
AGENDA CITY OF DENTON CITY COUNCIL May 13, 2003 After determining that a quorum is present, the City Council will convene in a Work Session on Tuesday, May 13, 2003 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of May 13, 2003. NOTE: 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 Government Code, as amended. Following the completion of the Work Session, the 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 Government Code, as amended, as set forth below. 1. Closed Meeting: mo Deliberations regarding real property - Under TEXAS GOVERNMENT CODE Section 551.072 and Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Deliberate the purchase and value of real property interests for street, utility and right-of-way purposes in the Nathaniel Britton Survey, Abstract No. 51 Denton County, Texas, and being an approximate 0.08 acre tract located between the northwest corner of the Ryan Ranch Addition and the southeast comer of the proposed Thistle Hill Estates, Phase II; which acquisition is for a public purpose. Receive legal advice from the City Attorney or his staff concerning legal issues regarding the acquisition and/or condemnation of such real property interests. (Creekdale Drive Connection) Bo 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 for the purposes of economic development negotiations relating to the development of facilities of Sally Beauty Company on a 24 acre parcel of land located north of the intersection of Brinker Road and Colorado Boulevard in the J. White Survey, Abstract No. 1433, in the City of Denton. City of DeNon City Council Agenda May 13, 2003 Page 2 ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE "PUBLIC POWER EXCEPTION"). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §§551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §§551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of DeNon City Council on Tuesday, May 13, 2003 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE 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. May Yard-of-the-Momh Awards C. Recognition of staff accomplishments 3. CITIZEN REPORTS A. Receive citizen reports from the following: Peternia Washington: governmem grams, HUD, non-profits, and the City of Demon. John Wolfe: need for emergency medical capabilities closer to Robson Ranch. Ed Soph: Eureka Playground Jane Fulton: lack of care of rock creeks 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. City of DeNon City Council Agenda May 13, 2003 Page 3 Listed below are bids, purchase orders, contracts, and other items to be approved under the Consem Agenda (Agenda items A-V). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. if no items are pulled, Consem Agenda items A-V below will be approved with one motion, if items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. A. Consider approval of the minutes of April 8, 2003 and April 15, 2003. Bo Consider adoption of an ordinance of the City of DeNon, Texas approving a lease agreement between the City of Denton and the Denton Mall Company, L.P. for the City Hall in the Golden Triangle Mall; authorizing the expenditure of funds therefor; and providing an effective date. Co Consider adoption of an ordinance of the City of DeNon authorizing the City Manager to execute on behalf of the City of Denton Amendment No. 2 to an Airport Project Participation Agreement with the Texas Department of Transportation dated December 4, 2001 relating to the construction of improvements at the Denton Municipal Airport; and declaring an effective date. Do Consider adoption of an ordinance of the City of DeNon authorizing an agreement between the City of Denton and the Federal Aviation Administration to provide for air traffic controllers at the Denton Municipal Airport; and providing an effective date. mo Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of rubber goods testing; providing for the expenditure of funds therefor; and providing an effective date (Bid 2976 - Annual Price Agreement for Rubber Goods Testing awarded to Texas Meter and Device Company in the estimated amoum of $25,000). Fo Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of electric meters, CTs, meter sockets and related items; providing for the expenditure of funds therefor; and providing an effective date (Bid 2982 - Annual Price Agreemem for Electric Meters, CTs, Meter Sockets and Related items awarded to the lowest responsible bidders for each item in the estimated amoum of $200,000). Go Consider adoption of an ordinance authorizing the City Manager to execute change number one to the contract between the City of Denton and Visionair, inc; providing for the expenditure of funds therefor; and providing an effective date (Ordinance 2000-457; File 2640 - Agreemem for Purchase, Licensing, Programming, Implementation, Training, Service and Support of Fire and Police Support Software and Hardware between the City of DeNon and Visionair, inc. awarded to Visionair, inc. in the amoum of $1,237,934.95 and File 3018 - Change Order No. One in the deduct amoum of $55,247.60 for a total amoum of $1,182,687.35) City of Demon City Council Agenda May 13, 2003 Page 4 Ho Consider adoption of an ordinance authorizing the City Manager to approve a Memorandum of Understanding (MOU) with the University of North Texas to authorize participation in various research projects originated by the City of Demon; providing for the expenditure of funds therefor; and declaring an effective date (File 3024 - Memorandum of Understanding with the University of North Texas). Consider adoption of an ordinance of the City of Demon, Texas authorizing the expenditure of funds for paymems by the City of Demon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Demon; and providing an effective date (File 3017 - Electrical Energy Transmission Fees in the total amoum of $1,195,204.31). Jo Consider adoption of an ordinance of the City of Demon, Texas, authorizing the Mayor to execute an amendment to the two interlocal agreements by and between the City of Denton, Texas and the Denton Independent School District dated May 15, 2001 and May 14, 2002 pertaining to an aquatic center, in order to authorize the City's construction of a skate park on a portion of the aquatic center property; authorizing the expenditure of funds therefor; and providing an effective date. Ko Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Denton Skate Park; providing for the expenditure of funds therefor; and providing an effective date (Bid 2992 - Denton Skate Park Project awarded to Calvert Paving Corporation in the amount of $60,645). Lo Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for dry boring, casing and PVC conduit installations; providing for the expenditure of funds therefor; and providing an effective date (Bid 2995 - Annual Price Agreemem for Dry Boring, Casing and PVC Conduit installation awarded to LB&L Cable, inc. in the estimated amoum of $106,128). Mo Consider adoption of an ordinance of the City of Demon, Texas, authorizing the Mayor to execute an interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas for road improvements for a bridge bypass on Loop 288 north of Colorado; authorizing the expenditures of funds therefor; and providing an effective date. No Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of the Loop 288 East Temporary Traffic Diversion; providing for the expenditure of funds therefor; and providing an effective date (Bid 3014 - Loop 288 East Temporary Traffic Diversion awarded to Austin Bridge and Road, LP in the amoum of $185,292.16). Oo Consider adoption of an ordinance authorizing the City Manager, or his designee to execute a Real Estate Contract for the acquisition of approximately 3.0 acres being a tract conveyed to Frederick A. Beardsley and wife, Carol Ann Beardsley as recorded by Deed in Volume 1054, Page 889, of the Real Property Records of City of Demon City Council Agenda May 13, 2003 Page 5 Demon County, Texas, said property being located in the G. Walker Survey, Abstract Number 417, Denton County Texas; authorizing the expenditure of funds therefor; and declaring an effective date. (Pecan Creek Water Reclamation Plato Future Expansion) Po Consider adoption of an ordinance by the City of Demon abandoning and vacating a portion of an easement to the City of Denton, Texas recorded in Volume 4397, Page 1364 of the Real Property Records of Demon County, Texas as it affects Lot 1, Block A of the Lissberger Addition; and providing an effective date. Qo Consider adoption of an ordinance authorizing the City Manager, or his designee to execute an Interlocal Agreement with Texas Woman's University to enable an exchange of easemems and services to accommodate utility relocations and easemems; and declaring an effective date. (Austin Street Sanitary Sewer) Ro Consider adoption of an ordinance by the City of Demon abandoning and vacating a portion of a drainage and utility easemem to the City of Demon, Texas recorded by Clerk's File No. 94-R0077739 of the Real Property Records of Denton County, Texas as it affects Lot 1R, Block 1 of the Denton Regional Medical Cemer Addition; and providing an effective date. So Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.08 acre tract or parcel of land in fee simple for street, utility and right-of-way purposes, such title to be in the name of the City of Demon and said property being located in the Nathaniel Britton Survey, Abstract Number 51 in Denton County, Texas and being out of that certain tract or parcel of land in a deed to Wayne S. Ryan and Shelton Ryan recorded in Volume 2522, Page 898 of the Real Property Records of Denton County, Texas; authorizing the City Manager, or his designee, to make an offer to purchase the property for its just compensation and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation to acquire the property for street, utility and right-of-way purposes; and declaring an effective date. To Consider adoption of an ordinance of the City of Demon, Texas approving an agreement between the City of Denton and Denton Thistle Hill Partners, L.P. for the acquisition by purchase or condemnation of an approximate 0.08 acre tract or parcel of land in fee simple for street, utility and right-of-way purposes, such title to be in the name of the City of Demon and said property being located in the Nathaniel Britton Survey, Abstract Number 51 in Denton County, Texas and being out of that certain tract or parcel of land in a deed to Wayne S. Ryan and Shelton Ryan recorded in Volume 2522, Page 898 of the Real Property Records of Denton County, Texas; and providing an effective date. Uo Consider a variance of Section 35.20.2 (L.3.a.) of the Code of Ordinance concerning improvements to a perimeter street. The parcel contains approximately 23 acres and is generally located on the northwest corner of City of DeNon City Council Agenda May 13, 2003 Page 6 Vimage Boulevard and Bonnie Brae Street. The property is zoned Planned Developmem 139 (PD-139). Single-family residemial lots are proposed. The Planning and Zoning Commission recommends approval (7-0). (Vintage Addition Phase 2-B, perimeter street improvements, V03-0006) Consider adoption of an ordinance ratifying a PCB Waste Disposal Agreemem between the City of Denton, Texas and L.W. Environmental Services, Inc. for the removal of polychlorinated biphenyls at the Spencer electric pole yard; authorizing the expenditure of funds therefor, being an emergency procurement, which is exempt from competitive bidding; and providing an effective date. (Purchase Order for amoum not to exceed $42,886.95) 5. PUBLIC HEARINGS Hold the first to two public hearings to consider the voluntary annexation and service plan for approximately 67.69 acres of land generally located north and east of Teasley Lane (FM 2181), and west of Blue Bonnett, in the southeastern section of the City of DeNon Extraterritorial Jurisdiction (ETJ). (Teasley Lane High School Annexation, AO3-OOOD Hold a public hearing and consider adoption of an ordinance regarding an Alternative Development Plan for approximately 0.5 acres located in a Downtown Residemial 2 (DR-2) zoning district. The property is generally located at the corner of Avenue A and Fannin. A multi-family developmem is proposed. The Planning and Zoning Commission recommends approval (7-0). (ADP03-O004, Ave A & Fannin) Hold a public hearing and consider adoption of an ordinance rezoning approximately 6 acres from Regional Cemer Commercial Neighborhood (RCC-N) to Regional Cemer Commercial Dowmown (RCC-D). The property commonly known as 4901 1-35N is generally located approximately 1600 feet north of Schuyler Drive on the west side of 1-35N. The existing RV sales and future display areas are proposed. The Planning and Zoning Commission recommends approval (7-0). (Z03-0008, 1-35 RV Center) Hold a public hearing and consider adoption of an ordinance for a Specific Use Permit to allow gas well developmem. The approximately 95 acre site is in a Neighborhood Residemial 6 (NR-6) zoning district and is generally located east of the intersection between Bonnie Brae and the future extension of Vintage Boulevard. Two gas well sites are proposed. The Planning and Zoning Commission recommends approval (7-0) with conditions. (Z03-O011, dOAB A&B Unit #O Hold a public hearing and consider adoption of an ordinance for a Specific Use Permit to allow gas well developmem. The approximately 17.3 acre property is in a Neighborhood Residemial 6 (NR-6) zoning district and is generally located south of Hickory Creek Road approximately 1000 feet west of Teasley Lane. The Planning and Zoning Commission recommends approval (7-0) with conditions. (Z03-0012, Meredith #1) City of Demon City Council Agenda May 13, 2003 Page 7 6. ITEMS FOR INDIVIDUAL CONSIDERATION 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 Grant Agreement with Sally Beauty Company, Inc. regarding the development of an approximate 24 acre parcel of land located north of the intersection of Brinker Road and Colorado Blvd. in the J. White Survey, Abstract No. 1433, in the City of Denton, Texas; authorizing the expenditure of funds therefor; and providing an effective date. Consider for adoption an ordinance of the City of Demon, Texas updating impact fees by amending Chapter 26, "Utilities," Section 26-210 through 26-232 of the City of Demon Code of Ordinances; adopting revised land use assumption and capital improvements plans for water and wastewater impact fees; establishing new service areas for wastewater impact fees; establishing new maximum impact fees per service unit and impact fees to be collected; creating schedules for the assessmem and collection of impact fees; revising procedures for administering impact fees; repealing conflicting ordinances and resolutions; providing a severability clause; providing for a penalty not to exceed $2,000 for each violation thereof; and providing an effective date. C. Consider nominations and appoimmems to the City's Boards and Commissions. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Demon, Texas, on the day of ,2003 at o'clock (a.m.) (p.m.) CITY SECRETARY City of Denton City Council Agenda May 13, 2003 Page 8 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. CITY OF DENTON CITY COUNCIL MINUTES April 8, 2003 After determining that a quorum was presem, the City Council convened in a Planning Session of the City of DeNon City Council on Tuesday, April 8, 2003 at 4:00 p.m. in the City Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members McNeill, Momgomery, Phillips, and Redmon. ABSENT: Council Member Fulton 1. The Council received an outcome statemem and held a discussion regarding Education and Economic Developmem in the City of DeNon. Mike Conduff, City Manager, presemed outcome statemems from the Education and Economic Development Planning Session. Council Member Fulton arrived at the meeting. Conduff stated that the Outcome Statement for Education/Economic Development indicated that there was a high quality of life with a healthy economy that was growing appropriately. There were excellent employment opportunities that met the employment needs of the workforce. The workforce had the education, skills and abilities that made them employable. Council discussion dealt with the separating the high quality of life from the healthy economy statements; whether the outcome statements were aiming too low; and wording of the outcome statements to reflect more of a measurable outcome. Conduff stated that staff would refine the statemems and bring them back to Council for further discussion. 2. The Council received a report, held a discussion, and gave staff direction regarding Transportation issues including the Airport Master Plan. Jon Fortune, Assistant City Manager for Public Safety and Transportation Operations, stated that the White Paper presented to Council was a comprehensive review of the past and current issues and how they related to the future development of the Denton Airport, public transportation, and surface transportation projects. He reviewed the current projects of the Airport and the benchmark of the Airport compared to area airports. Mike Dmyterko, Coffman and Associates, presemed a summary of the new DeNon Airport Master Plan. He detailed a history of the Airport, presented airside development recommendations, landside development recommendations, short-term programs, and the master plan concept as found in the White Paper for Transportation/Infrastructure. Council discussion cemered on types of planes that would be able to use the Airport when the runway extension was complete, residemial encroachmem imo the Airport, visual perception of the Airport, and how to make the Airport competitive with other area airports. Fortune continued with a presentation on the transportation system in Denton. He showed the growth of the ridership in the LINK System, challenges and opportunities for the system such as City of Demon City Council Minutes April 8, 2003 Page 2 funding, a multi-modal station, UNT partnerships and the Denton County Transportation Authority. Council discussed increasing ridership per bus, location of stops, and cost of the service versus revenues. Charles Emery, Chair of the Denton County Transportation Authority Executive Committee, presented an overview of the County public transportation initiatives, legislative issues, status of the interlocal agreements with area cities, activities outside the county, regionalization programs, and funding sources. Council reviewed the outcome statement from master plan as indicated in the White Paper. Poims of discussion included: · public education to achieve the outcome statements · increased publicity for the Airport · weather updated from the Airport by local TV/radio stations · anchor of industrial complex · economic gateway for the city · have a nationally recognized aviation institution · build an airport no matter what type of business · flexibility, allow for change · no encroachment of residential development near the Airport · no non-aviation activities occur in inappropriate locations · Denton has services to accommodate business users of the Airport With no further business, the meeting was adjourned at 6:20 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES April 15, 2003 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, April 15, 2003 at 5:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Burroughs; Council Members Fulton, McNeill, Momgomery, Phillips, and Redmon. ABSENT: None 1. The Council received a funding recommendations Developmem Advisory Committee (CDAC) and the Human report from the Community Services Advisory Committee (HSAC) and held a discussion regarding the proposed City of DeNon 2003 Action Plan for Housing and Community Development. (Committee Chairs provided briefings.) Ed Touraine, Community Developmem Advisory Committee, presemed the Community Development Advisory Committee funding recommendations as noted in the agenda materials. James McDade, Human Services Advisory Committee, presemed the funding recommendations of the Committee as noted in the agenda materials. Council discussed the amoum of funding for some agencies that included Council comingency funds and the process of determining which agencies to fund. 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for the regular meeting of April 15, 2003. Regular Meeting of the City of DeNon City Council on Tuesday, April 15, 2003 at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards Mayor Pro Tem Burroughs presemed the following proclamations: Fair Housing Month National Community Developmem Week Denton Cinco de Mayo Day B. April Yard-of-the-Momh Awards Mayor Pro Tem Burroughs presented April Yard of the Month awards to: Jerry and Katherine Graham City of DeNon City Council Minutes April 15, 2003 Page 2 Mike and Susan Gill Elizabeth and Kerry Thornhill Robert and Ann Richardson Mildred Hodges Samm and Brent McAlister Xeriscaped Yard - David and Shepora Baldwin Business - The Selwyn School C. Recognition of staff accomplishments City Manager Conduffpresemed staff accomplishmems to the Council. 3. CITIZEN REPORTS C. The Council received citizen reports from the following: 1. Mike LeFebvre: sidewalks in the Lakeview Ranch Subdivision. Mr. LeFebvre stated the subdivision was fashioned to be country living and the installation of sidewalks would not be compatible with that type of development. He asked that sidewalks not be installed in the developmem. 2. Tommy Bain: sidewalks in the Lakeview Ranch Subdivision. Mr. Bain stated when he began the developmem he had requested no sidewalks for Phase I with the Planning and Zoning Commission reserving a decision for future developmem. Now it appeared that sidewalks were being required for future developmem. Sidewalks were not needed as there were many trails throughout the development that were used for walking, biking, etc. Mayor Brock indicated that Donna Dews and Thomas Beitinger had submitted Speaker Cards in support of the citizen reports. 3. Mike Cochran: quarterly review of Denton Development Code. Mr. Cochran felt that the quarterly review of the Denton Development Code had not been done as was originally imended. He felt that adequate public notice needed to be given and a work session on the items should be held before consideration at the regular meeting. One of the changes done in the Code would now allow apartmems in a residemial neighborhood under the definition of attached single-family dwellings. 4. CONSENT AGENDA McNeill motioned, Burroughs seconded to approve the Consem Agenda and accompanying ordinances and resolutions. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Momgomery "aye", Phillips "aye", Redmon "aye" and Mayor Brock "aye". Motion carried unanimously. A. Approved the minutes of March 25, 2003 and April 1, 2003. City of DeNon City Council Minutes April 15, 2003 Page 3 Bo 2003-102 - An ordinance authorizing the City Manager to execute a Local Participation Advanced Funding Agreement for an on-system project as related to the implementation of the proposed 1-35 E northbound ramp reversals between Loop 288/Lillian Miller Parkway and State School Road/Mayhill Road (Brinker Road) project in the City of DeNon. Co 2003-103 - An ordinance authorizing the City Manager to execute a Local Participation Advanced Funding Agreement for an on-system project as related to the implementation of the proposed 1-35 E southbound ramp reversals between Loop 288/Lillian Miller Parkway and State School Road/Mayhill Road (Wind River Lane) project in the City of DeNon. Do 2003-104 - An ordinance approving a real estate contract between the City of Denton and Denton County relating to the purchase of the County's one half undivided iNerest in 2.93 acres of land located in the Eugene Puchalski Survey, Abstract No. 996, Denton County, Texas, and being part of a tract of land as described by deed to the City of DeNon, Texas and DeNon County, as recorded in Volume 383, Page 187, Deed Records, Denton County Texas; authorizing the expenditure of funds therefore; and providing an effective date. mo 2003-105 - 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 2003 Summer Food Service Program; if such funding is graNed, 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. Fo Approved a request for an exception to the Noise Ordinance for the purpose of the Chi Omega, Alpha Alpha Chapter of the University of North Texas, "Just Wish for It" Fun Walk, Sunday, April 27, 2003 at South Lakes Park. Go Approved a request for an exception to the Noise Ordinance for the purpose of construction on the Denton Aquatics Center by Charter Builders, LTD beginning immediately through the completion of the project during the hours of 6:30 a.m. and 8:30 p.m. Monday through Friday. Ho 2003-106 - An ordinance accepting competitive bids and awarding an annual contract for mowing for the Parks and Recreation Department; providing for the expenditure of funds therefore; and providing an effective date (Bid 2980 - Annual Mowing CoNract (Parks) awarded to the lowest responsible bidders for each item in the estimated amouN of $32,000). 2003-107 - An ordinance accepting competitive bids and awarding an annual contract for the purchase of laboratory analyses for the Pecan Creek Reclamation PlaN; providing for the expenditure of funds therefore; and providing an effective City of DeNon City Council Minutes April 15, 2003 Page 4 date (Bid 2981 - Annual Price Agreemem for Environmemal Laboratory Comract awarded to Ana-Lab Corp. in the estimated amoum of $110,495). Jo 2003-108 - An ordinance awarding a comract for the purchase of physical fitness equipment for the New Central Fire Station; providing for the expenditure of funds therefore; and providing an effective date (Bid 2987 - Physical Fitness Equipment/New Cemral Fire Station awarded to the lowest responsible bidder for each item for a total amoum of $39,754.77). Ko 2003-109 - An ordinance authorizing the City Manager or his designee to execute change orders 19 and 20 to the contract between the City of Denton and Pharlap Construction, Inc.; providing for the expenditure of funds therefore; and providing an effective date (Bid 2791 - Solid Waste Facility Change Orders 19 and 20 in the amoum of $25,088). 5. PUBLIC HEARINGS mo The Council held a public hearing inviting citizens to commem on the City of DeMon's 2003 Action Plan for Housing and Community Development. Ed Touraine, Chair of the Community Developmem Advisory Committee, presemed the members of both committees. He indicated that he would answer any questions Council had regarding the Committee recommendations. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Kae Fisher, 2601 W. Oak Shores Dr., Cross Roads, 76227 -DeNon Affordable Housing Sandra Benavides, 3008 Broken Bow, DeNon, 76209 - Day Laborer Site Suzanne Akins, 1216 Pin Oak Dr., DeNon, 76209 - Adjustmem to Disabilities Group Lorraine Platt, 1021 Bayfield, DeNon, 76209 - Adjustmem to Disabilities Group Peternia Washington, 618 E. Prairie, Denton, 76201 - review of funding for non-profit organizations Jane Provo, DeNon Affordable Housing Corporation - favor of recommendations Linnie McAdams, DeNon Affordable Housing Corp. - favor of recommendations Laura Williams, 1028 Springcreek Drive, DeNon, 7210 - favor of recommendations Guadalupe Saucedo - favor for Denton Affordable Housing Princess Lister - requested funding for Walking Prayer Group Roy Anderson, DeNon Affordable Housing - favor of recommendations The Mayor closed the public hearing. Council discussed not increasing the funding commitmem from the general fund and the use of council comingency funds if Council waned to increase funding to specific organizations or for the funding of new organizations. Consensus of Council was to follow Option Two for funding scenarios. City of DeNon City Council Minutes April 15, 2003 Page 5 The Council held a public hearing and considered adoption of an ordinance approving a Specific Use Permit for approximately 1.5 acres to allow a drive-thru facility. The site was in a Neighborhood Residemial Mixed Use (NRMU) zoning district. The subject property was generally located at the southwest corner of Teasley Lane and Teasley Lane opposite Wind River. A pharmacy with a drive-thru was proposed. The Planning and Zoning Commission recommended approval (7-0). (ZO3-OOOD Larry Reichhart, Assistant Director of Planning and Development, stated that the drive-through was the portion of the development that required the specific use permit. The Planning and Zoning Commission had recommended approval. The criteria for graining a specific use permit was listed in the agenda materials. The specific use permit would be site specific for the drive- through and only a pharmacy could use the drive-through. If the use changed, a new specific use permit would be required. The Mayor opened the public hearing. The following individuals spoke during the public haring: Robert Baldwin, CVS Pharmacy - favor Karen Mitchell, Mitchell Planning Group - favor The Mayor closed the public hearing. The following ordinance was considered: NO. 2003-110 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A DRIVE-THRU FOR A PHARMACY ON APPROXIMATELY 1.7 ACRES OF LAND GENERALLY LOCATED AT THE SOUTHWEST CORNER OF TEASLEY LANE (FM 2181), LILLIAN MILLER PARKWAY AND WIND RIVER LANE, WITHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z03-0007) Burroughs motioned, Montgomery seconded to adopt the ordinance as recommended by the Planning and Zoning Commission. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Momgomery "aye", Phillips "aye", Redmon "aye" and Mayor Brock "aye". Motion carried unanimously. The Council cominued and re-convened the public hearing begun on March 25, 2003 regarding the amendment of land use assumptions and capital improvements plan, and the possible imposition of an amended impact fee for water and wastewater. Jim Coulter, Director of Water/Wastewater, reviewed the impact fee recommendations. The Mayor opened the public hearing. City of DeNon City Council Minutes April 15, 2003 Page 6 No one spoke during the public hearing. The Mayor closed the public hearing. Council discussed the level of the impact fee and the review of prior philosophy of impact fees. 6. ITEMS FOR INDIVIDUAL CONSIDERATION mo The Council considered an ordinance of the City of DeNon, Texas, prescribing regulations regarding a rate filing package to include specific schedules, data, and other information to be provided to the municipality by gas utilities as part of the statement of intent to increase rates under the gas utility regulatory act; providing that this ordinance is cumulative and that other information may be required to be submitted; providing for the use of forms as part of the statement of intent; requiring that the rate filing package be supported by affidavit; providing for expert assistance; providing for compliance with other laws; providing for a waiver of these filing requiremems on good cause but no waiver of jurisdiction; providing for the treatmem of proprietary gas utility information; providing for notice; providing for a civil penalty in the maximum amoum of $500.00 for violations thereof, providing for a savings clause; providing a severability clause; and providing an effective date. Mayor Brock left the meeting with a conflict of interest. Herb Prouty, City Attorney, reviewed the details of the ordinance. The ordinance was designed to simplify the process for the rate consultants to review future rate filing packages by gas utilities. The following ordinance was considered: NO. 2003-111 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PRESCRIBING REGULATIONS REGARDING A RATE FILING PACKAGE TO INCLUDE SPECIFIC SCHEDULES, DATA, AND OTHER INFORMATION TO BE PROVIDED TO THE MUNICIPALITY BY GAS UTILITIES AS PART OF THE STATEMENT OF INTENT TO INCREASE RATES UNDER THE GAS UTILITY REGULATORY ACT; PROVIDING THAT THIS ORDINANCE IS CUMULATIVE AND THAT OTHER INFORMATION MAY BE REQUIRED TO BE SUBMITTED; PROVIDING FOR THE USE OF FORMS AS PART OF THE STATEMENT OF INTENT; REQUIRING THAT THE RATE FILING PACKAGE BE SUPPORTED BY AFFIDAVIT; PROVIDING FOR EXPERT ASSISTANCE; PROVIDING FOR COMPLIANCE WITH OTHER LAWS; PROVIDING FOR A WAIVER OF THESE FILING REQUIREMENTS ON GOOD CAUSE BUT NO WAIVER OF JURISDICTION; PROVIDING FOR THE TREATMENT OF PROPRIETARY GAS UTILITY INFORMATION; PROVIDING FOR NOTICE; PROVIDING FOR A CIVIL PENALTY IN THE MAXIMUM AMOUNT OF $500.00 FOR VIOLATIONS THEREOF, PROVIDING FOR A City of DeNon City Council Minutes April 15, 2003 Page 7 SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. Fulton motioned, McNeill seconded to adopt the revised ordinance presemed by the City Attorney. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", and Redmon "aye". Motion carried unanimously. Mayor Brock returned to the meeting. B. The Council considered nominations and appoimmems to the City's Boards and Commissions. Council voted on the nominations made at the previous meeting - Darla Bostick to the Animal Shelter Advisory Committee, Diana Hatch to the Historic Landmark Commission and Sherri McDade to the Library Board. Burroughs motioned, Montgomery seconded to approve the nominations. On roll vote, Burroughs "aye", Fulton "aye", McNeill "aye", Montgomery "aye", Phillips "aye", Redmon "aye" and Mayor Brock "aye". Motion carried unanimously. C. New Business The following items of New Business were suggested by Council Members for future agendas: Council Member Fulton requested a work session on the requirements for dumpsters for business, apartments. Council Member McNeill requested a discussion or staff report on the sidewalk requiremems in the Lakeview subdivision. Council Member McNeill requested a memo regarding the quarterly and annual code review and to set a schedule for the next review. Council Member Phillips requested information on increasing the number of voting locations on election day for future elections. 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. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no cominuation of the Closed Meeting. F. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. City of Demon City Council Minutes April 15, 2003 Page 8 There was no official action taken on Closed Meetings items. With no further business, the meeting was adjourned at 8:40 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 13, 2003 Utilities Customer Service Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City of DeNon, Texas approving a lease agreemem between the City of DeNon and the DeNon Mall Company, L.P. for the City Hall in the Golden Triangle Mall; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND City Hall in the Mall was relocated in March 2003 to a location next to JC Penney. The current agreement for the current space is a temporary lease with a term of March through September 2003. The permanent lease attached will extend our access to that space through September of 2006. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On December 9, 2002, the Public Utility Board approved the temporary lease with the agreemem that a permanent lease would be adopted to protect our investment of remodeling. In fulfilling the Public Utility Board's recommendations, the attached permanem lease agreemem is being presemed for approval. FISCAL INFORMATION The annual cost of the lease is $34,553 or $18./sqft. Based on square footage, Customer Service will pay 27,643/yr. and Police will pay 6,910/yr. EXHIBITS Ordinance Golden Triangle Mall Lease Agreemem - Space L-22A Public Utilities Board Meeting Minutes, December 9, 2002 Respectfully submitted: Howard Martin Assistant City Manager/Utilities S:\Our Documents\Ordinances\03\City Hall in the Mall.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON MALL COMPANY, L.P. FOR THE CITY HALL iN THE GOLDEN TRIANGLE MALL; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute a lease agreemem between the City and the Demon Mall Company, L.P. for the City Hall in the Golden Triangle Mall in substantially the form of the lease agreement attached hereto and made a part of this ordinance for all purposes (the "Lease Agreemem"). SECTION 2. The City Manager, or his designee, is authorized to make the expenditures as set forth in the Lease Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: EXHIBIT 1 GOLDEN TRIANGLE MALL LEASE THIS LEASE made this ~day of 2003, by and between DENTON MALL COMPANY, L.P., a Texas limited partnership ("Landlord") having a business address of P.O. Box 7033, Indianapolis, Indiana 46207 and CITY OF DENTON ("Tenant") having a business address of 215 East McKinney, Denton, Texas 76201; WlTNESSETH THAT, in consideration of the rents, covenants and agreements hereinafter set forth, such parties enter into the following agreement: ARTICLE I The exhibits listed below EXHIBIT "A" EXHIBIT "B" EXHIBIT "B-1" EXHIBIT "C" EXz-EE'~T "D" and attached to this Lease are incorporated herein by this reference: Plan of existing and proposed improvements (the "Center"). This Exhibit is provided for informational purposes only, and shall not be deemed to be a warranty, representation or agreement by Landlord that the Center or buildings and/or any stores will be exactly as indicated on the Exhibit, or that the other tenants which may be drawn on said Exhibit will be occupants in the Center. Landlord reserves unto itself the unlimited right to modify the configuration of the Center at any time for the purpose of incorporating additional Major Tenants and other buildings within the Center. Rules and Regulations applicable to Tenant. Tenant Information Package. Sign Criteria applicable to Tenant, Tzn.~n:': ARTICLEII A. Leased Premises. Landlord hereby leases to Tenant and Tenant hereby rents from Landlord, in its "as is" condition, the space (in the Center) designated as Room L-22A as crosshatched on Exhibit "A" (hereinafter called "the Premises"), measured to the center line of all party or common walls, to the exterior faces of all other walls and to the building line where there is no wall, containing approximately 1,762 square feet (hereinafter called the "Store Floor Area"), Any further alterations of this room, done upon Tenant's sole election, wit[ be at the Tenant's sole expense and deemed to' be Tenant's Work, subject to the prior written approval of Landlord. Landlord shall have the exclusive right to use any part of the roof, side and rear walls of the Premises for any purpose. Tenant shall have no right whatsoever in the exterior of exterior walls or the roof of the Premises or any portion of the Center outside the Premises. Landlord, its agents and employees shall have the right to enter the Premises from time to time at reasonable times to examine the same, show them to prospective purchasers and other persons, and make such repairs, alterations, improvements or additions as Landlord deems desirable. Rent shall not abate while any such repairs, alterations, improvements, or additions are being made. In addition, during any apparent emergency, Landlord or its agents may enter the Premises forcibly without liability therefor. B. Lease Term. The term of this Lease (hereinafter called "Lease Term") shall commence upon '.5: zzri~z~f: (!) ~"~ ~::' ~-'- T:n.~x: :,F:n: ~-- 5::z~x~:c :.n ....... ;~" (being hereinafter called "Commencement Date"), and shall end on September 30, 2006 unless sooner terminated as herein provided. If Tenant holds over with or without Landlord's written consent Tenant shall, at Landlord's option, occupy the Premises on a tenancy from month to month and all other terms and provisions of this Lease shall be applicable to such period, C. Lease Year Defined. "Lease Year," as used herein, means a period of twelve (12) consecutive months during the Lease Term, the first Lease Year commencing on the Commencement Date, or, in the event such Commencement Date is other than the first day of the month, the Lease Year shall commence on the first day of the first month immediately following such Commencement Date, "Partial Lease Year" means that portion of the Lease Term following the last full Lease Year. ARTICLE III A. Minimum an~ Patter. raga Rent. Tenant covenants and agrees to pay to Landlord, without notice or demand, at Landlord's address for notice (Landlord's and Tenant's notice addresses being the addresses set forth above), as rent for the Premises: A "Minimum Annual Rent" of $10.00 per square foot of Store Floor Area,, or Seventeen Thousand Six Hundred Twenty and 00/I00 Dollars ($17,620.00) per annum (based upon the approximated Store Floor Area), payable in equal monthly installments, in advance upon the first day of each and every month of the Lease Term commencing upon the Commencement Date and continuing for the remainder of the term hereof (such monthly installment being hereinafter called "Minimum Monthly Rent"). ~n4 EXHIBIT 2 · .......a ,:~. ariS' Part!a! Lzzz:. Yzar) B. Miscellaneous Rent Provisions. If Tenant shall fail to pay any installment of Minimum Rent, Pz:'.-'z.-.:.Tgz or any item of additional rent within five (5) days after the date the same became due and payable, then Tenant shall pay to Land/oral a late payment service charge ("Late Charge") covering administrative and overhead expenses equal to the greater of (a) $250.00 or (b) 5¢ per each dollar so overdue. Provision herein for payment of the Late Charge shall not be construed to extend the date for payment of any sums required to be paid by Tenant hereunder or to re]icrc Tenant of its obligation to pay all such sums at the times herein stipulated. If the Commencement Date is ether than the first day of a month, Tenant shall pay on the Commencement Date a prorated partial Minimum Monthly Rent for the peric~t prior to the first day of the next calendar month, and thereafter Minimum Monthly Rent payments shall be made not later than the first day of each calendar month. C, Percentage Rent. INTENTIONALLY DELETED. D. C-ross Sales Defined. INTENTIONALLY DELETED. E. ~ Taxes. Landlord shall pay or cause to be paid, upon the discretion of Landlord but before delinquent, all Taxes (as hereinafter defined) levied, assessed, imposed, become due and payable, or liens arising in connection with the use, occupancy or possession of or become due and payable out of or for, the Center or any part thereof during the Lease Term. As used in this Section the term "Taxes" shall mean and include all property taxes, both real and personal, public and governmental charges and assessments, and all other taxes which Landlord is obligated to pay with respect to the development of the Center, including all extraordinary or special assessments or assessments against any of Landlord's personal property now or hereafter located in the Center, all costs and expenses including, but not limited to consulting, appraisal and attorneys' fees incurred by Landlord in researching, reviewing, evaluating, contesting, appealing or negotiating with public authorities (Landlord having the sole authority to conduct such a contest or enter into such negotiations) as to any of the same and all sewer, water and other utility taxes and impositions, but shall not include taxes on Tenant's machinery, equipment, inventory or other personal property or assets of Tenant, if Taxes shall not include interest and penalties due on delinquent Taxes, but shall include interest on Taxes withheld by virtue of Landlord making partial payment under protest in the event such partial payment is permitted in connection with a tax appeal proceeding. Tenant shall pay to Landlord, as additional rent, its proportionate share of all calendar year or fiscal year Taxes, such proportionate share to be prorated for periods at the beginning and end of the Lease Term which do not constitute full calendar months or years. Tenant's proportionate share of any such Taxes shall be that portion of such taxes which bears the same ratio to the total Taxes as the Store Floor Area bears to the average rentable floor area rented or occupied in the Center (hereinafter called "Rented Floor Area") during the calendar year or fiscal year in which such Taxes constitute a lien upon the Center. The floor area of (i) Major Tenants (defined as a single tenant occupying at least 40,000 contiguous square feet of store floor area in the Center), and (ii) any tenant in a free standing premises, and (iii) Common Areas, as hereinafter defined, shall not be included in the Rented Floor Area, and any contributions to Taxes received by Landlord from such tenants (less any tax payments recaptured against any other rents or payments due Landlord) shall be deducted from Taxes prior to the calculating of Tenant's proportionate share. Tenant's proportionate share of Taxes shall be paid in monthly installments commencing with the Commencement Date, in amounts initially estimated by Landlord, one (J.) such installment being due on the first day of each full or partial month during the Lease Term. Upon notice from Landlord, such monthIy installments shall increase or decrease from time to time to reflect the then current estimate of the amount of any Taxes due. When the actual amount of any such Taxes is determined by Landlord, Landlord will notify Tenant of such actual amount (in a format to be determined by Landlord) and of any excess or deficiency in the amount theretofore paid by Tenant as its share of' such Taxes. Any such excess will be credited to Tenanfs account. Tenant will pay the amount of any deficiency to Landlord within ten (10) days following Landlord's notice thereof. Tenant acknowledges and stipulates that Landlord has made no representations or agreement of any kind as to the total doIlar amount of such Taxes, actual or estimated, or Tenant*s dollar share thereof. Tenant's proportionate share of any governmental tax or charge (other than income tax) levied, assessed, or imposed on account of the payment by Tenant or receipt by Landlord, or based in whole or in part upon, the rents in this Lease reserved or upon the Center or the value thereof shall be paid by Tenant including any new direct or indirect tax or surcharge against the Center, the parking areas, or the number of parking spaces in the Center or any new direct or indirect tax or surcharge in addition to or by way of substitution for any existing tax or assessment which Landlord beeomes obligated to pay with respect to the Center. If the land under the Center is a part of a larger parcel of land for assessment purposes (the "Larger Parcel"), the taxes and assessments allocable to the land in the Center for the purpose of determining Taxes under this Section shall be deemed a fractional portion of the taxes and assessments levied against the Larger Parcel, the numerator of which is the acreage in the Center and the denominator of which is the acreage in the Larger ]Parcel. -2- F. Additional Rent. All amounts required or provided to be paid by Tenant under this Lease other than Minimum Annual Rent and Pzr:zn:zg: n~_. shall be deemed additional rent and Minimum Annual Rent," ......... ~'~-' and additional rent shall in all events be deemed rent. G. Sprinkler System. INTENTIONALLY DELETED. H. Landlord's Expenses. If Landlord pays any monies or incurs any expense to correct a breach of this Lease by Tenant or to do anything in this Lease required to be done by Tenant, or incurs any expense (including, hut not limited to, attorneys' fees and court costs), as a result of Tenant's failure to perform any of Tenant's obligations under this Lease, all amounts so paid or incurred shall, on notice to Tenant, be considered additional rent payable by Tenant with the first Minimum Monthly Rent installment thereafter becoming due and payable, and may be collected as by law provided in the case of rent. ARTICLE IV A. Common Areas. All areas and improvements provided by Landlord for the general use in common of tenants and their customers and department stores in the Center (all herein called "Common Areas*') shall at all times be subject to the exclusive control and management of Landlord, and Landlord shall have the right, from time to time, to establish, modify and enforce reasonable rules and regulations with respect to all Common Areas. Landlord shall have the absolute right from time to time to change or modify and add to or subtract from the sizes, locations, shapes and arrangements of the Common Areas. Tenant and its business invitees, employees and customers shall have the nonexclusive right, in common with Landlord and all others to whom Landlord has granted or may hereafter grant rights, to use the Common Areas subject to such reasonable regulations as Landlord may from time to time impose and the rights of Landlord set forth above. Tenant shall pay Landlord, upon demand, $25.00 for each day on which a car of Tenant, a concessionaire, employee or agent of Tenant is parked outside any area designated by Landlord for employee parking. Tenant shall abide by all rules and regulations and cause its concessionaires, officers, employees, agents, customers and invitees to abide thereby. Landlord may at any time close temporarily any Common Areas to make repairs or changes, prevent the acquisition of public rights therein, discourage noncustomer parking, or for other reasonable purposes. Tenant shall furnish Landlord license numbers and descriptions of cars used by Tenant and its concessionaires, officers and employees. Tenant shall not interfere with Landlord's or other tenants' rights to use any part of the Common Areas. ARTICLE V A. Expense of Operating and Maintaining the Common Facilities. Landlord will operate, manage, maintain and repair or cause to be operated, managed, maintained or repaired, the Common Areas of the Center, to the extent the same is not done by any Major Tenant. "Landlord's Common Area Costs" shall mean all costs of operating and maintaining the Common Areas in a manner deemed by Landlord appropriate for the best interests of tenants and other occupants in the Center. Tenant will pay Landlord, in addition to all other amounts in this Lease provided, $5.00 per square foot of Store Floor Area per year as Tenant's share of Landlord's Common Area Costs. Such share shall be paid in monthly installments, one (1) such installment being due on the first day of each month of each calendar year. B. Heating, Ventilating, Air Conditioning Char~es (Common Areas). As additional rent, Tenant will pay Landlord annually, in equal monthly installments due on the first day of each month in advance, for providing heating, ventilating and air conditioning, including the cost of electricity used in providing the same (but not inspecting, repairing, or maintaining the same, which are among Landlord's Common Area Costs) of the Common Areas of the mall, the base HVAC charge of $1.13 per square foot of Store Floor Area per year. ARTICLE VI A. Utilities. Tenant shall not install any equipment which can exceed the capacity of any existing utility facilities. Tenant shall be solely responsible for and promptly pay all charges for use or consumption of sewer, gas, trash, electricity, water and all other utility services. Landlord may make electrical, domestic water or other utility service available to the Premises, and so long as Landlord continues to provide such service Tenant agrees to purchase the same from Landlord and pay Landlord for the service (based upon Landlord% determination from time to time of Tenant's consumption), as additional rent, on the first day of each month in advance (and prorated for partial months), commencing on the Commencement Date at the same cost as would be charged to Tenant from time to time by the utility company which otherwise would furnish such services to the Premises. Landlord's initial billing for any utility being provided by Landlord hereunder and not separately metered and directly billed by Landlord to Tenant hereunder, as the case may be, shall be accompanied by evidence reasonably satisfactory to Tenant of the applicable rate or rates of such public or municipal utility and a statement in reasonable detail setting forth the computation of the amount of Landlord's billing together with such additional information as Tenant may reasonably require to verify that Landlord's billing does not exceed the amount which Tenant would otherwise be required to pay such public or municipal utility for the services being provided. Any subsequent increase or decrease in Landlord's billing for any such services' shall include a statement in reasonable detail settlng forth the basis for such increase or decrease and the computation thereof. B. Enforcement and Termination. Landlord shall not be liable to Tenant in damages or otherwise if any utilities or services, whether or not furnished by Landlord hereunder, are interrupted or terminated because of repairs, installation or improvements, or any cause beyond Landlord's reasonable control, nor shall any such termination relieve Tenant of any of its obligations under this Lease. Tenant shall operate the Premises in such a way as shall not waste fuel, energy or natural resources. Landlord may cease to furnish any one or more of said utilities or services to Tenant without liability for the same, and no discontinuance of any utilities or services shall constitute a constructive eviction. -3- ARTICLE VII A. Use of Premises. The Premises shall be occupied and used by Tenant solely for the purpose of conducting therein the business of the City of Denton offices, along with City of Denton Utilities customer service center, and Tenant shall not use or permit or suffer the use of the Premises for any other business or purpose. B, Conduct of Business. Such business shall be conducted (.~ under the name CITY OF DENTON ~ unless another name is previously approved in writing by the Landlord. Such business operations shall be conducted under standard mall operating hour~ unless other hours are approved by Landlord's on-site management. ; C. Oeration b Tenant. Tenant covenants and agrees that it will: not place or maintain any merchandise, vending machines or other articles in any vestibule or entry of the Premises or outside the Premises, except for City Hall Kiosk, or such other article, as may be approved by Landlord's on-site management; store garbage, trash, rubbish and other refuse in rat-proof and insect-proof containers inside the Premises, and remove the same frequently and regularly and, if directed by Landlord, by such means and methods and at such times and intervals as are designated by Landlord, ail at Tenant's costs; not permit any sound system audible or objectionable advertising medium visible outside the Premises; keep all mechanical equipment free of vibration and noise and in good working order and condition; not commit or permit waste or a nuisance upon the Premises; not permit or cause odors to emanate or be dispelled from the Premises; not solicit business in the Common Areas nor distribute advertising matter to, in or upon any Common Area; not permit the loading or unloading or the parking or standing of delivery vehicles outside any area designated therefor, nor permit any use of vehicles which will interfere with the use of any Common Areas; comply with all laws, recommendations, ordinances, rules and regulations of governmental, public, private and other authorities and agencies, including those with authority over insurance rates, with respect to the use or occupancy of the Premises, and including but not limited to the Americans with Disabilities Act of 1990 and the Williams-Steiger Occupational Safety and Health Act; light the show windows of the Premises and all signs each night of the year for not less than one (1) hour after the Premises is permitted to be closed; not permit any noxious, toxic or corrosive fuel or gas, dust, dirt or fly ash on the Premises; not place a load on any floor in the Shopping Center which exceeds the floor load per square foot which such floor was designed to carry. Tenant shall store in the Premises only merchandise which Tenant intends to sell at, in or from the Premises, within a reasonable time after receipt thereof. Landlord may make additional services, including but not limited to, pest control, trash removal, cleaning, and security, available to the Premises and, in such event, Tenant shall utilize such services, at Tenant's expense. Tenant is solely responsible to comply with all regulations of the Texas Architectural Barriers Act. This includes review and approval of plans, and the inspection of the space at the conclusion of construction. Tenant will not paint, decorate or change the architectural treatment of any part of the exterior of thc Premises nor any part of the interior of the Premises visible from the exterior. Tenant will maintain merchandise displays in the show windows on the Premises consistent with the character and standards of the Center. No public or private auction or any fire, "going out of business," bankruptcy or similar sales or auctions shall be conducted in or from the Premises and the Premises shall not be used except in a dignified and ethical manner consistent with the general high standards of merchandising in the Center and not in a disreputable or immoral manner or in violation of national, state or local laws. D. Hazardous Materials. Tenant shall not, without the prior written consent of Landlord, cause or permit, knowingly or unknowingly, any Hazardous Material (being any substance which is or becomes regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement, and shall include asbestos and petroleum products) to be brought or remain upon, kept, used, discharged, leaked, or emitted in or about, or treated at the Premises. Tenant shall remove from the Premises all Hazardous M~,terials at the termination of this Lease. In addition to, and in no way limiting, Tenant's duties and obligations as set forth in Article X (F) of this Lease, should Tenant breach any of its duties and obligations as set forth in this Article VII (D), or if the presence of any Hazardous Material on the Premises results in contamination of the Premises, the Center any land other than the Center, the atmosphere, or any water or waterway (including groundwater), or if contamination of the Premises or of the Center by any Hazardous Material otherwise occurs for which Tenant is otherwise legally liable to Landlord for damages resulting therefrom, Tenant shall indemnify, save harmless and, at Landlord's option and with attorneys approved in writing by Landlord, defend Landlord, and its contractors, agents, employees, partners, officers, directors, and mortgage~s, if any, from any and all claims, demands, damages, expenses, fees, costs} fines, penalties, suits, proceedings, actions, causes of action, and losses of any and every kind and nature (including, without limitation, diminution in value of the Premises or the Center, damages for the loss or restriction on use of the rentable or usable space or of any amenity of the Premises or the Center, damages arising from any adverse impact on marketing space in -4- the Center, and sums paid in settlement of claims and for attorney's fees, consultant fees and expert fees, which may arise during or after the Lease Term or any extension thereof as a result of such contamination). Without limiting the foregoing, if the presence of any Hazardous Material on or about the Premises or the Center caused or permitted by Tenant results in any contamination of the Premises or the Center, Tenant shall, at its sole expense, promptly take all actions and expense as are necessary to return the Premises and/or the Center to the condition existing prior to the introduction of any such Hazardous Material to the Premises or the Center; provided, however, that Landlord's approval of such actions shall first be obtained in writing. Tenant shall be solely responsible for compliance with the Texas Asbestos Hea~th Protection Act and all local ordinances and rules relating thereto, including, but not limited to, conducting any asbestos survey of the Premises required for renovation or demolition permits. Tenant shall provide a copy of any such asbestos survey to Landlord's on-site management. ARTICLE VIII A. Maintenance by Landlord. Landlord shall keep or cause to be kept the foundations, roof and structural portions of the walls of the Premises in good order, repair and condition except for damage thereto due to the acts or omissions of Tenant, its agents, employees or invitees. This Section shall not apply in case of damage or destruction by fire or other casualty or condemnation or eminent domain, in which events the obligations of Landlord shall be controlled by Article XV. All other repairs, replacements or improvements of any kind upon the Premises shall be Tenant's responsibility. B, Maintenance by Tenant. Tenant shall at all times, at Tenant's sole cost and expense, keep the Premises (including all entrances and vestibules) and all partitions, window and window frames and mouldings, glass, store fronts, doors, door openers, fixtures, equipment and appurtenances thereof (including lighting, heating, electrical, plumbing, ventilating and air conditioning fixtures and systems and other mechanical equipment and appurtenances) and alt parts of the Premises, and parts of Tenant's Work not on the Premises, not required herein to be maintained by Landlord, in good order, condition and repair and clean, orderly, sanitary and safe, damage by unavoidable casualty excepted (including but not limited to doing such things as are necessary to cause the Premises to comply with applicable laws, ordinances, rules, regulations and orders of governmental and public bodies and agencies, such as but not limited to the Americans with Disabilities Act of 1990 and the Williams-Steiger Occupational Safety and Health Act). If replacement of equipment, fixtures and appurtenances thereto is necessary, Tenant shall replace the same with new or completely reconditioned equipment, fixtures and appurtenances, and repair all damages done in or by such replacement. At the expiration of the Lease Term, Tenant shal[ surrender the Premises in the same condition as they were required to be in on the Required Completion Date, reasonable wear and tear and damage by unavoidable casualty excepted, and deliver all keys for the Premises to the office of the Center's general manager. All alterations, changes and additions and all improvements, including leasehold improvements, made by Tenant whether part of Tenant's Work or not, shall remain Tenant's property for the Lease Term, but shall immediateIy upon the termination of this Lease become Landlord's property, be considered part of the Premises, and not be removed without Landlord's written consent. [f Tenant fails to remove any shelving, decorations, equipment, trade fixtures or personal property from the Premises prior to the end of the Lease Term, they shall become Landlord's property and Tenant shall repair or pay for the repair of any damage done to the Premises resulting from removing same but not for painting or redecorating the Premises. ARTICLE IX A. Tenant's Liens. Tenant shall not suffer any mechanics' or materialmen's lien to be filed against the Premises or the Center by reason of work, labor, services or materials performed or furnished to Tenant or anyone holding any part of the Premises under Tenant. If any such lien shall at any time be filed as aforesaid, Landlord may remove said lien by any manner Landlord deems appropriate, without investigating the validity thereof, and Tenant, upon demand, shall pay Landlord the amount so paid out by Landlord in connection with the discharge of said lien, together with interest thereon and expenses incurred, including attorneys' fees, which amounts are due and payable to Landlord as additional rent on the first day of the next following month. Nothing contained in this Lease shall be construed as a consent on the part of Landlord to subject Landlord's estate in the Premises to any lien or liability under the lien laws of the State where the Center is located. Tenant's obligation to observe and perform any of the provisions of this Section shall survive the expiration of the Lease Term or the earlier termination of this Lease. Tenant shall not create or suffer to be created a security interest or other lien against any improvements, additions or other construction made by Tenant in or to the Premises or against any equipment or fixtures installed by Tenant therein (other than Tenant's property), and should any security interest be created in breach of the foregoing, Landlord shall be entitled to discharge the same by exercising the rights and remedies afforded it under the first paragraph of this Section. ARTICLE X A, Insurance By Landlord. Landlord shall carry public liability insurance on the Common Areas owned or controlled by Landlord. Landlord shall also carry insurance for fire, extended coverage, vandalism, malicious mischief and other endorsements deemed advisable by Landlord, insuring all improvements in the Center, including the Premises and all leasehold improvements thereon and appurtenances thereto (excluding Tenant's merchandise, trade fixtures, furnishings, equipment, personal property and excluding plate glass) for the full insurable value thereof, with such deductibles as Landlord deems advisabIe, and Tenant agrees to pay Landlord, as additional rent, sixty cents (60__QgO per year for each square foot of Store Floor Area payable in equal installments on the first day of every calendar month during the Lease Term, as Tenant's share of the cost of the premiums for such insurance described above in this sentence, -5- B. Insurance By Tenant Tenant agrees to carry public liability insurance on the Premises during the Lease Term, covering the Tenant and naming the Landlord as an additional named insured with terms and companies satisfactory to Landlord/for limits of not less than $250,000.00 for bodily injury, includi~tg death, and personal injury for any one (1) person and $$O0,O00.OOfor any one (1) occurrence, and $100,000.00 property damage insurance, zr z zz~5!:z~ z:.ng'.z ~-~ .... '-'~ -7 .... :--~ ':~":'"7 ~-~ 7--":~:-g, ~'~' ' ~-~ ~nd Tenant shall be given a minimum of sixty (60) days written notice by the insurance company prior to cancellation, termination or change in such insurance. Tenant also agrees to carry insurance against fire and such other risks as are from time to time required by Landlord, including, but not limited to, a standard "Ali-Risk" policy of property insurance protecting against all risk of physical loss or damage, including without limitation, sprinkler leakage coverage and plate glass insurance covering all plate glass in the Premises (including store fronts), in amounts not less than the actual replacement cost, covering all of Tenant's merchandise, trade fixtures, furnishing, wall covering, floor covering, carpeting, drapes, equipment and all items of personal property of Tenant located on or within the Premises. Upon the Commencement Date and annually thereof, Tenant shall provide Landlord with certificates of the policies, evidencing that such insurance, is in full force and effect and stating the terms thereof, including all endorsements. Notwithstanding the foregoing requirements, Landlord and Tenant acknowledge Tenant is a self-insured public entity as permitted by the State of Texas. Claims for which Tenant is liable will be paid from the Risk Retention Fund established for that purpose. C, Mutual Waiver of Subrogation Rights~ Landlord and Tenant and all parties claiming, by, through or under them mutually release and discharge each other from all claims and liabilities arising from or caused by any casualty or hazard covered or required hereunder to be covered in whole or in part by insurance on the Premises or in connection with property on or activities conducted on the Premises, and waive any right of subroga:ien which might otherwise exist in or accrue to any person on account thereof and further agree to evidence such waiver by endorsement to the required insurance policies. D. Waiver. Landlord, its agents and employees, shall not be liable for, and Tenant waives all claims for. loss or damage, including but not limited to consequential damages, to person, property or otherwise, sustained by Tenant or any person claiming through Tenant resulting from any accident, casualty or occurrence in or upon any part of ;_he Center. All property of Tenant kept in the Premises shall be so kept at Tenant's risk only and Tenant shall save Landlord harmless from claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier. E, Insurance - Tenant's Operation. Tenant will not do or suffer to be done anything which will contravene Landlord% insurance policies oi' prevent Landlord from procuring such policies in amounts and companies selected by Landlord. If anything done, omitted to be done or suffered to be done by Tenant in. upon or about the Premises shall cause the rates of any insurance effected or carried by Landlord on the Premises or other property to be increased beyond the regular rate from time to time applicable to the Premises for use for the purpose permitted under this Lease, or such other property for the use or uses made thereof, Tenant will pay the amount of such increase promptly upon Landlord's demand and Landlord shall have the right to correct any such condition at Tenant% expense. F. Indemnification~ To the extent permitted by law, Tenant shall save harmless, indemnify, and at Landlord's option, defend Landlord, its agents and employees, and mortgagee, if any, from and agains~ any and all liability, liens, claims, demands, damages, expenses, fees, costs, fines, penalties, suits, proceedings, actions and causes of action of any and every kind and nature arising or growing out of or in any way connected with Tenant's use, occupancy, management or control of the Premises or Tenant's operations, conduct or activities in the Center. ARTICLE XI A. Offset Statement. Within ten (10) days after Landlord's written request Tenam: shall deliver, executed in recordable form a declaration to any person designated by Landlord stating such truthful information as Landlord reasonably requires pertaining to this Lease. Persons receiving such statements shall be entitled to rely upon ~hem. Tenant's failure to execute instruments or certificates provided for in this Article X1 within fifteen (1.5) days after the mailing by Landlord of a written request shall be a default under this Lease. B. Attornment. Tenant shall, in the event of a sale or assignment of Landlord's interest in the Premises or the building in which the Premises is located or this Lease or Landlord% Tract, or if the Premises or such building comes into the hands of a mortgagee, ground lessor or any other person whether because of a mortgage foreclosure, exercise of a power of sale under a mortgage, termination of the ground lease, or otherwise, attom to the purchaser or such mortgagee or other person and recognize the same as Landlord hereunder. Tenant shall execute, at Landlord's request, any attornment agreement required by any mortgagee, ground lessor or other such person to be executed, containing such provisions as such mortgagee, ground lessor or other person requires. Subordination. The Lease shall be prior, senior and superior at all times to the lien of any first mortgage or mortgages which now or hereafter are a lien upon any part of Landlord's Tract. However, upon Landlord's request, Tenant will subordinate its rights hereunder to the liens of any mortgages or any lien resulting from any method of financing or refinancing (hereinafter collectively referred to as "mortgage") now or hereafter existing against all or a part of Landlord's Tract, and to all renewals, modification, replacements, consolidations and extensions thereof, and shall execute and deliver all documents requested by a mortgagee or security holder to effect such subordination, provided the mortgagee or security holder agrees in writing that if Landlord defaults under the mortgage, said mortgagee or security holder shall not disturb Tenant's possession while Tenant is not in default hereunder. If Tenant fails to execute and deliver any such document requested by a mortgagee or security holder to effect such subordination, Landlord is hereby authorized to execute such documents and take such other steps as are necessary to effect such subordination on behalf of Tenant as Tenant's duly authorized in-evocable agent and attorney-in4act. O eratin A reements. This Lease is subject and subordinate to one (l) or more construction, operation, reciprocal easement or similar agreements (hereinafter referred to as "Operating Agreements") entered into or hereafter to be entered into between Landlord and other owners or lessees of real estate within or near the Center and to any and all easements and easement agreements which may be or have been entered into with or granted to any persons -6- heretofore ot hereafter, whether such persons are located within or upon the Center or not, nnd Tenant shall execute such instrumems as Landlord requests to evidence such subordination. ARTICLE XII A. Consent Required. Tenant shall not sell, assign or in any manner transfer this Lease or any interest therein, nor sublet any part of the Premises, nor license concessions nor lease departments therein without Landlurd's prior written consent. Under no circumstances shall Tenant mortgage, pledge or otherwise collaterally transfer its interest in this Notwithstanding any transfer, Tenant shall remain fully liable on this Lease and for the performance of all terms, covenants and provisions of this Lease. Neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession, assignment or other agreement tbr use, occupancy or utilization for space in the Premises which provides for rental or other payment for such use, occupancy, or utilization based in whole or in part on the net income or profits derived by any person from the party leased, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales), and that any such proposed lease, sublease, license, concession, assignment or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises. ARTICLE XIII A, Provisions Relating to Promotional Fund. Landlord may, at its option, create and maintain an advertising and promotional fund (hereinafter referred to as the "Fund"), the primary purpose of which is to provide sums necessary for professional advertising and promotional services which benefit the tenants in the Center. In the event the Landlord does create and maintain the Fund, Tenant agrees to contribute to such Fund, beginning upon the later to occur of (a) the Commencement Date, or (b) the date the Fund is created, ten cents I(.LQQ per square foot of Store Floor Area during each calendar year of the Lease Term (hereinafter referred to as "Fixed Contribution") payable in equal monthly instalIments, in advance, on the first day of each and every month (pro rated for partial months). Landlord shall contribute an amount equal to oneffourth (1/4) of the monies collected from all tenants in the Center during each calendar year, which sum may be paid in whole or in part by Landlord, at its option, by providing the services of a Marketing Director or other person or persons under Landlord's exclusive control to help organize and implement advertising and promotional programs using assets from the Fund. The failure of any other tenant or any Major Tenant to contribute to the Fund shall not affect Tenanfs obligations hereunder. B, Media Fund. Landlord may, at its option, create and maintain a Media Fund, the exclusive purpose of which shall be to pay all costs and expenses associated with the purchase of electronic, print or outdoor advertising for the promotion of the Center. In the event Landlord does create and maintain the Media Fund, Tenant agrees to contribute to such Fund, beginning upon the Commencement Date a sum equal to ten cents ~ per square foot of Store Floor Area during each calendar year of the Lease Term (hereinafter referred to as "Media Fund Charge"), payable in equal monthly installments, in advance, on the first day of each and every month (pro rated for partial months). Tenant hereby authorizes Landlord to use Tenant's trade name and a brief description of Tenant's business in connection with any media advertising purchased pursuant to this Section. A. Security Deposit. ARTICLE XIV INTENTIONALLY DELETED. ARTICLE XV A, Damage and Destruction. If the Center or the Premises am hereafter damaged or destroyed or rendered partially unmnantable for their permitted use by fire or other casualty, then Landlord or Tenant shall have the right to terminate this Lease effective as of the date of such casualty by giving to the other party, ~ within sixty (60) days after the happening of such casualty, written notice of such termination. If such notice be given, this Lease shall tertninate and Landlord shall promptly repay to Tenant any rent theretofore paid in advance which was not earned at the date of such casualty. Any time that Landlord repairs or restores the Premises after damage or destruction, then Tenant shall promptly repair or replace its stock in trade, fixtures, furnishings, furniture, carpeting, wall covering, floor covering, drapes, equipment and Premises to the same condition as they were tn immediately prior to the casualty, and if Tenant has closed its business, Tenant shall promptly reopen for business upon the completion of such repairs. B, Eminent Domain. If any portion of the Center shall be acquired or condemned by right of eminent domain for any public or quasi public use or purpose, then Landlord at its election may terminate this Lease by giving notice to Tenant of its election, and in such event rentals shall be adjusted as of the date of termination. If the Lease shall not be terminated as aforesaid, then Landlord shall within a reasonable time after possession is physically taken repair or rebuild what remains of the Premises for Tenant's occupancy; and a just proportion of the Rent shall be abated, according to the nature and extent of the injury to the Premises for the balance of the Lease Term. Landlord reserves, and Tenafit assigns to Landlord, all rights to damages on account of any taking or condemnation or any act of any public or quasi public authority for which damages are payable. Tenant shall execute such instruments of assignment as Landlord requires, join with Landlord in any action for the recovery of damages, if requested by Landlord, and turn over to Landlord any damages recovered in any proceeding. However, Landlord does not reserve any damages payable for trade fixtures installed by Tenant at its own cost x~h~ch are not part of the realty. -7- If ten percent (10%) or more of the Premises is taken by such condemnation, Tenant may, on sixty (60) days notice to Landlord given within sixty (60) days of such taking, terminate this Lease, and rents shall be adjusted as of the date of termination. ARTICLE XVI A. Default By Tenant. The following shall be considered for all purposes to be defaults under and breaches of this Lease: (a) any failure of Tenant to pay any rent or other amount when due hereunder; (b) any failure by Tenant to perform or observe any other of the terms, provisions, conditions and covenants of this Lease for more than ten (10) days after written notice of such failure; (c) a determination by Landlord that Tenant has submitted any false report required to be furnished hereunder; (d) if Tenant abandons or vacates or does not do business in the Premises; or (e) this Lease or Tenant's interest herein or in the Premises or any improvements thereon or any property of Tenant are executed upon or attached; or (f) the Premises come into the hands of any person other than expressly permitted under this Lease, or (g) any claim or lien is asserted or recorded against the interest of Landlord in the Premises or Center, or any portion thereof, on the account of, or extending from any improvement or work done by or at the instance, or for the benefit or' Tenant, or any person claiming by, through or under Tenant or from any improvement or work the cost of which is the responsibility of Tenant. In any such event, and without grace period, demand or notice (the same being hereby waived by Tenant), Landlord, in addition to all other rights or remedies it may have, shall have the right thereupon or at any time thereafter to terminate this Lease by giving notice to Tenant stating the date upon whk:h such termination shall be effective, 'and shall have the right, either before or after any such termination, to re-enter and take possession of the Premises, remove all persons and property from the Premises, store such property at Tenant's expense, and sell such property if necessary to satisfy any deficiency in payments by Tenant as required hereunder, ali without notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage occasioned thereby. If Landlord terminates this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages incurred by reason of such breach or default, including deficiency in rent, brokerage fees and expenses of placing the Premises in rentable condition, and attorneys' fees, all of which shall be immediately due and payable by Tenant to Landlord. B. Countemlaim. If Landlord commences any proceedings for non-payment of rent (Minimum Annual Rent, Pzrzcr.:ag: P. cn: or additional rent), Tenant will not interpose any counterclaim of any nature or description in such proceedings. This shall not, however, be construed as a waiver of Tenant's right to assert such claims in a separate action brought by Tenant. The covenants to pay rent and other amounts hereunder are independent covenants and Tenant shall have no right to hold back, offset or fail to pay any such amounts for default by Landlord or any other reason whatsoever. C. Default By Landlord. Landlord shall in no event be charged with default in any of its obligations hereunder unless and until Landlord shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct any such default) after written notice to Landlord by Tenant~ specifically describing such failure. If [he holder of the first mortgage covering the Premises shall l~ave given written notice to Tenant of the address to which notices to such holder are to be sent, Tenant shall give such holder written amice simultaneously with any notice given to Landlord of any default of Landlord, and if Landlord fails to cure any default asserted in said notice within the time provided above, Tenant shall notify such holder in writing of the failure to cure, and said holder shatl have the right but not the obligation, within thirty (30) days after receipt of such second notice, to cure such default before Tenant may take any action by reason of such default. ARTICLE XVII A. Taxes on Leasehold. Tenant shall be responsible for and shall pay before delinquent all municipal, county, federal or state taxes coming due during or after the Lease Term against Tenant's interest in this Lease or against personal property of any kind owned or placed in, upon or about the Premises by Tenant~ B. Successors. All rights and liabilities herein given to or imposed upon the respective parties hereto shall bind and inure to the several respective heirs, successors, administrators, executors and assigns of the parties and if Tenant is more than one ([) person, they shall be bound jointly and severally by this Lease. Landlord, at any time and from time to time, may make an assignment of its interest in this Lease and, in the event of such assignment, Landlord and its successors and assigns (other than the assignee of Landlord's interest in this Lease) shah Ire released from any and all liability thereafter accruing hereunder. C. Landlord's Covenant. If Tenant pays the rents and o~:her amounts herein provided, observes and performs all the covenants, terms and conditions hereof, Tenant shall peaceably and quietly hold and enjoy the Premises for the Lease Term without interruption by Landlord or any person or persons claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease~ D. Waiver. No waiver by Landlord or Tenant of any breach of any term, covenant or condition hereof shall be deemed a waiver of the same or any subsequent breach of the same or any other term, covenant or condition. The acceptance of rent by Landlord shall not be deemed a waiver of any earlier breach by Tenant of any term, covenant or condition hereof, regardless of Landlord% knowledge of such breach when such rent is accepted~ No covenant, term or condition of this Lease shall be deemed waived by Landlord or Tenant unless waived in writing. E. Accord and Satisfaction. Landlord is entitled to accept, receive and cash or deposit any payment made by Tenant for any reason or purpose or in any amount whatsoever, and apply the same at Landlord's option to any obligation of Tenant and the same shall not constitute payment of any amount owed except that to which Landlord has applied the same. No endorsement or statement on any check or letter of Tenant shall be deemed an accord and satisfaction or otherwise recognized for any purpose wb. atsoever. The acceptance of any such check or payment shall be without prejudice to Landlord's right to recover any and all amounts owed by Tenant hereunder and Landlord's right to pm:sue any other available remedy. -8- F. Entire Agreement. There are no representations, covenants, warranties, promises, agreements, conditions or undertakings, oral or written, between Landlord and Tenant other than herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless in writing and signed by them. Tenant acknowledges that it has independentty investigated the potential for the success of its operations in the Center and has not relied upon any inducements or representations on the part of Landlord or Landlord's representatives, other than those contained in thc Lease. G, No Partnership. Landlord does not, in any way or for any purpose, become a partner, employer, principal, master, agent or joint venturer of or with Tenant. H. Force Maieure. If either party hereto shall be delayed or hindered in or prevented l%m the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure material, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, environmental remediation work whether ordered by any governmental body or voluntarily initiated or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under this Lease, the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding the foregoing, the provisions of this Section shall at no time operate to excuse Tenant from any obligations for payment of Minimum Annual Rent, P:.r:.zn~7.z P. zn:, additional rent or any other payments required by the terms of this Lease when the same are due, and all such amounts shall be paid when due. I. Submission of Lease. Submission of this Lease to Tenant does not constitute an of[er to lease; this Lease shall become effective only upon execution and delivery thereof by Landlord and Tenant. The effective date of this Lease sha~l be the date filled in on Page 1 hereof by Landlord, which shall be the date of execution by the last of the parties to execute the Lease. J. Notices. All notices to be given hereunder by either party shall be written and sent by registered or certified mail, return receipt requested, postage pre-paid or by an express mail delivery service, addressed to the party intended to be notified at the address set forth above. Either party may, at any time, or from time to time, notify the other in writing of a substitute address for that above set forth, and thereafter notices shall be directed to such substitute address~ Notice given as aforesaid shall be sufficient service thereof and shall be deemed given as of the date received or the date on which delivery is first refused, as evidenced by the return receipt of the registered or certified mail or the express mail delivery receipt, as the case may be. K. Captions and Section Numbers. This Lease shall be construed without reference to titles of Articles and Sections, which are inserted only for convenience of reference. L. Number and Gender. The use herein of a singular term shall include the plural and use of the masculine, feminine or neuter genders shall include all others. M. Objection to Statements. Tenant% failure to object to any statement, invoice or billing rendered by Landlord within a period of ninety (90) days after receipt thereof slmll constitute Tenant's acquiescence with respect thereto and shall render such statement, invoice or billing an account stated between Landlord and Tenant. N. Representation by Corporate Tenant. INTENTIONALLY DELETED. O, Joint and Several Liability. If Tenant is a partnership or other busir~ess organizati, oa the members of which are subject to personal liability, the liability of each such member shall be deemed to be joint and severaI. P. Limitation of Liabili~. Anything to the contrary herein notwithstanding, no general or limited partner of the Landlord, or any general or limited partner of any partner of the Landlord, or any shareholder of any corporate partner of any partner of the Landford, or any other holder of any equity interest in the Landlord, or in any entity comprising the Landlord or its partners, shall be personally liable with respect to any of the terms, covenants, conditions and provisions of this Lease, or the performance of Landlord's obligations under this Lease, nor shall Landlord or any of said constituent parties have any liability to Tenant for any consequential damages such as, but not limited to, test profits. The liability of Landlord for Landlord's obligations under this Lease shall be limited to Landlord's interest in the Center, and Tenant shalI look solely to the interest of Landlord, its successors and assigns, in the Center, for the satisfaction of each and every remedy of Tenant against Landlord. Tenant shall not look to any of Landlord's other assets seeking either to enforce Landlord's obligations under this Lease, or to satisfy any money or deficiency judgment for Landtord's failure to perform such obligations, such exculpation of personal liability is and shall be absolute and wittmut any exception whatsoever. The term "Landlord" shall mean only the owner at the time in question of the present Landlord's interest in the Center. In the event of a sale or transfer of the Center (by operation of law or otherwise) or in the event of the making of a lease of all or substantially all of the Center, or in the event of a sale or transfer (by operation of law or otherwise) of the leasehold estate under any such [ease, the grantor, transferor or lessor, as the case may be, shall be and hereby is (to the extent of the interest or portion of the Center or leasehold estate sold, transferred or leased) automatically and entirely released and discharged, from and after the date of suci~ sale, transfer or leasing of all liability with respect of the perfor~nance of any of the terms of this Lease on the part of Landlord thereafter to be performed; provided that the purchaser, transferee or lessee (collectively, "Transferee") shall be deemed to have assumed and agreed to perform, subject to the limitations of this Section (and without further agreement between the other part/es hereto, or among such parties and the Transferee) and only during and in respect of the Transferee's period of ownership of the Landlord's interest under this Lease, all of the terms of this Lease on the part of Landlord to be performed during such period of ownership, it being intended that Landlord's obligations hereunder shall, as limited by this Section, be binding on Landlord, its successors and assigns only during and in respect of their respective, successive periods of ownership. Q. Broker's Commission. Each party represents and warrants that it has caused or incurred no claims for brokerage commissions or finder's fees in connection with the execution of this Lease, and each party shall indemnify and hold the other harmless against and from all liabilities arising from any such claims caused or incurred by it (including without limitation, the cost of attorneys' fees in connection therewith). R. Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or -9- circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby and each provision of this Lease shall be vatid and enforceabIe to the fullest extent permitted by taw. S. Recording. The parties agree not to place this Lease of record. T. Applicable Law. This Lease shall be construed under the laws of the State in which the Center is located. U, Unrelated Business Taxable Income. If at any time and from time to time during the term of this Lease, Landlord is advised by its counsel or counsel to a tax exempt partner of the managing partner of Landlord that any pro,~isinn of this Lease, including without limitation the provisions relating to the payment of rent and additional rent, or the absence of any provision might give rise to unrelated business taxable income within the meaning of sections 512 of the Internal Revenue Code of 1986, as amended, or the regulations issued thereunder, or may jeopardize the tax-exempt status of any partner in Landlord or any partner in a partnership that is a partner in Landlord, or may prevent any such partner from obtaining such tax-exempt status, then this Lease may be unilaterally amended by Landlord in such manner as shall meet the requirements specified by counsel for Landlord and Tenant agrees that it will execute all documents or instruments necessary to effect such amendments, provided that no such amendment shall result on an estimated basis in Tenant having to pay in the aggregate more on account of its occupancy of the Premises than it would be required to pay under the terms of this Lease, or having to receive fewer services or services of lesser quality than it is presently entitled to receive under this Lease. Any services which Landlord is required to furnish pursuant to the provisions of this Lease may, at Landlord's option, be furnished from time to time, in: whole or in part, by employees of Landlord or the managing agent of the Center or .its employees or by one or more third persons hired by Landlord or the managing agent of the Center~ Tenant agrees that upon Landlord's written request it will enter into direct agreements with the managing agent of the Center or other parties designated by Landlord for the furnishing of any such services required to be furnished by Landlord herein, in form and content approved by Landlord, provided, however, that no such contract shall result on an estimated basis in Tenant having to pay in the aggregate more money on account of its occupancy of the Premises under the terms of this Lease, or having to receive fewer services or services of a lesser quality than it is presently entitled to receive under this Lease. V, Relocation: After the first two (2) Lease Years of the Lease Term, _~n :.':: :'::n: Lan~-'.::~ :::7xr. dz ~r ...... ..... ~, ....... ............... ,.~ c, ....., Landlord may ............... ~'~" ~' ..... '~^ .-!g~: to require Tenant to relocate its operation, at Landlord's ~ expense, to a mutually agreed upon location (the "New Premises"). rc.x::.-:, :.t x.'..x.}! S: xt Lan~'.c~-d'~Fz.ng:. Landlord shall notify Tenant at least one hundred and fifty (150) days prior to the intended relocation, and the New Premises shall be substantially the same size and configuration as the Premises described herein. Tenant's failure to notify Landlord that the New Premises are unacceptable within thirty (30) days of receipt of Landlord's relocation notice shall be deemed a waiver with respect thereto and confirmation that the New Premises are acceptable to Tenant. W. Non-Appropriation and Right of Termination. The obligations of Tenant to pay rent and to make any other payments to Landlord (or to any other person) pursuant to this Lease are subject to appropriation by the Tenant of funds th~ are lawfully available to be applied for such purpose. If Tenant fails to make sach an appropriation prior to a fiscal period of Tenant for rent and charges scheduled in such f~cal period, Tenant shall given notice to Landlord that the funds will not be available and Tenant may terminate this Lease by providing written notice of such termination to Landlord not less than forty-five (45) days prior to the first day qf the next following fiscal period. Despite any such election to terminate, Tenant shall remain liable for the performance of all the terms, covenants and conditions contained in this Lease until the effective date of such termination. IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease as of the day and year first above written. (LANDLORD) DENTON MALL COMP.4dNY, L.P., a Texas limited partnership By: GT MALL, INC., a Delaware corporation, its general partner By: Stephei~ Simon, President (TENANT) CITY OF DENTON By: Attest: APPROVED AS TO FORM: C~WATTOE~F __~._ J Anchor w GOLDEN TRIANGLE MALL TSD# L22A .............. Level: 01 i~T.k ~i/'-~lk T'~ SIMON PROPERTY GROUP 251Mk.)IN 115 W. WASHINGTON ST. INDIANAPOLIS, IN 46204 · ~ : · ~- 2,490¢ ~ :' -- 71' ~ / The information in this document is confidential and a proprietary traqe secret of the Simon Property Group (SPG) and may nol be ~;opied, distributed, }ublished ct disclosed without prior written permission. The information contained herein is subject to change without prior written notice and does not constitute any corot,'act er obligation by SPG. It is the responsibility of lhe tenant or the tenant's contractor to field verify existing site conditions and dimensions. DBA Name: Date: 01/02/03 20:33 Unit No. L22A EXHIBIT "A" Scale: 1" = 20' Leasing Agent: Corp. No. 0705 10. RULES AND REGULATIONS Tenant shall advise and cause its vendors to deliver ail merchandise before noon on Mondays through Fridays, not at other times. All deliveries are to be made to designated service or receiving areas and Tenant shall request delivery trucks to approach their service or receiving areas by designated service routes and drives. Tractor trailers which must be unhooked or parked must use steel plates under dolly wheels to prevent damage to the asphalt paving surface. In addition, wheel btocking must be available for use. Tractor trailers are to be removed from the loading areas after unloading. No parking or storing of such trailers will be permitted in the Center. Except for small parcel packages, no deliveries will be permitted through the mails unless Tenant does not have a rear service door. In such event, prior arrangements must be made with the Resident Mall Supervisor for delivery. Merchandise being received shall immediately be moved into Tenant's Premises and not be left in the service or receiving areas. Tenant is responsible for storage and removal of its trash, refuse and garbage. Tenant shall not dispose of the following items in sinks or commodes: plastic products (plastic bags, straws, boxes); sanitary napkins; tea bags; cooking fats, cooking oils; any meat scraps or cutting residue; petroleum products (gasoline, naptha, kerosene, lubricating oils); paint products (thinner, brushes); or any other item which the same are not designed to receive. All Store Floor Area of Tenant, including vestibules, entrances and returns, doors, fixtures, windows and plate glass, shall be maintained in a safe, neat and clean condition. Other than as permitted under the provisions of this Lease, Tenant shall not permit or suffer any advertising medium to be placed on mall walls, on Tenant's mall or exterior windows, on standards in the mall, on the sidewalks or on the parking lot areas or light poles. No permission, expressed or implied, is granted to exhibit o.r display any banner, pennant, sign, and trade or seasonal decoration of any size, style or material within the Center, outside the Premises. Tenant shall not permit or suffer the use of any advertising medium which can be heard or experienced outside of the Premises, including, without limiting the generality of the foregoing, flashing lights, searchlights, loud speakers, phonographs, radios or television. No radio, television, or other communication antenna equipment or device is to be mounte& attached, or secured to any part of the roof, exterior surface, or anywhere outside the Premises, unless Landlord has previously given its written consent. Tenant shall not permit or suffer merchandise of any kind at any time to be placed, exhibited or displayed outside its Premises, nor shall Tenant use the exterior sidewalks or exterior walkways of its Premises to display, store or place any merchandise. No sale of merchandise by tent sale, truck load sale or the like, shalt be permitted on the parking lot or other common areas. Tenant shall not permit or suffer any portion of the Premises to be used for lodging purposes, nor conduct or permit any unusual firing, explosion or other damaging or dangerous hazard ~vithin the Premises or the Common Area. Tenant shall not permit or suffer any portion of the Premises to be used for any warehouse operation, or any assembling, manufacturing, distilling, refining, smelting, industrial, agricultural, drilling or mining operation, adult bookstore or cinema, peepshow, entertainment or sale of products of an obscene or pornographic nature or predominately sexual nature. 11. Tenant shall not, in or on any part of the Common Area: (a) Vend, peddle or solicit orders for sale or distribution of any merchandise, device, service, periodical, book, pamphlet or other matter whatsoever. (b) Exhibit any sign, placard, banner, notice or other written material, except for activities as approved in writing by Landlord. Distribute any circular, booklet, handbill, placard or other material, except for activities as approved in writing by Landlord. (d) Solicit membership in any organization, group or association or contribution for any purpose. (e) Create a public or private nuisance. ¢) Use any Common Areas (including the Enclosed Mall) for any purpose when none of the other retail establishments within the Center is open for business or employment, except for activities as approved in writing by Landlord. EXHIBIT "B" Page -1- (g) (h) Throw, discard or deposit any paper, glass or extraneous matter of any kind except in designated receptacles, or create litter or hazards of any kind. Deface, damage or demolish any sign, light standard or fixture, landscaping materials or other improvement within the Center, or the property of customers, business invitees or employees situated witl~in the Center. EXHIBIT "B" Page -2- TENANT INFORMATION PACKAGE (Tenant Information Package incorporated herein by reference,) EXHIBIT "B- 1" SIGN CRITERIA Tenant will not erect any signs except in conformity with the following policy and sign types set forth in the Criteria Information Handbook: (a) (b) (c) (d) (e) (f) (g) (h) O) (k) (1) (m) (n) (o) (p) (q) Wording on large scale signs shall be limited to store or trade name only. Each party's customary signature or logo, hallmark, insignia, or other trade identification will be respected. Signs with exposed lamps and signs of the flashing, blinking, rotating, moving, or animated types or audible type signs are not permitted. The size of all Tenant's signs shall be limited. The scale and concept of the enclosed mall requires the use of signs which are not larger than necessary to be legible from within the mall. Thus, except for department store signs, Tenant's signs shall be located within the I/mits of its sterefront and shall not project more than six inches (6") beyond the storefront and shale conform to the following proportionate height criteria: (1) 30' storefront: 18" capitals 12" body (2) 30' to 60' storefront: 24" capitals 18" body (3) 60' and over storefront: 30" capitals 24" body In addition to complying with the above criteria, signs in the enclosed malls shall be limited in length of 70% of Tenant's frontage on the mall, and shall in no case exceed a length of thirty feet (30'0"). Painted or printed signs on the exterior surface of any building shall be prohibited, except small-scale signs relative to store name and stating store hours which are hearty tettered on the glass of the storefront but subject to Landlord's written approval and in addition, any non-customer door for receiving merchandise may have in 2-inch block letters, the name of Tenant. Public safety decals or artwork on glass in minimum sizes to comply witl0 applicable Code, subject to the approval of Landlord, may be used, as required by building codes or other governmental regulations. Paper signs, stickers, banners or flags are prohibited. No exposed raceways, ballast boxes or electrical transformers will be permitted except as required by Code. Sign company names or stamps sba.ti be concealed (Code permitting). Except as otherwise approved in writing by Landlord, only one (1) sign for Tenant will be permitted within the enclosed mall areas, except the corner tenants may have 2 such signs. Sign letters may be back-lighted with lamps or tubes entirely concealed within the depth of the letter or may be opaque or translucent plastic face with no visible openings. Maximum brightness allowed for interior (enclosed mall) signs will be 100 foot lamberts taken at the letter face and must comply with all building and electrical codes. Exposed s[gn illumination or illuminated sign cabinets or modules are not permitted. Signs and identifying marks shall be placed entirely within the boundaries of Tenant's Premises with no part higher than 12 feet above the finished floor line, nor shall any projecting sign be located closer than 8 feet to the finished floor line, but in no event shall such a sign extend above the wall or parapet upon which it is mounted. Tenant shall not install any roof top signs. Tenant shall install no pylon signs. No signs will be permitted at the rear of any building. Alt signs shall be lighted and sub.}ect to the Landlord's written approval before fabrication. Three (3) complete sets of sign drawings must be submitted to the Landlord for written approval before fabrication. Tenant's sign drawings must include the following: 1. Elevation view of storefront showing sign (drawn to accurate scale.) with dimensions of height of letters and length of sign. EXHIBIT "C" Page - 1- 2. CoIor sample of sign panel. 3. Color sample of sign letters (unless they are to be WHITE). Cross section view through sign letter and sign panel showing location of sign relative to the storefront line and showing the dimensioned projection of the face of the letter from the face of the sign panel. The Landlord shall not be responsible for the cost of refabrication of signs fabricated, ordered or constructed, that do not conform to the sign criteria. EXHIBIT "C" Page -2- 1 2 3 4 5 PUBLIC UTILITIES BOARD MEETING MINUTES December 9, 2002 9:00 A.M. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, December 9, 2002 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. PRESENT: Dick Norton, George Hopkins, Charldean Newell, Don White and Bill Cheek EX OFFICIO MEMBERS Mike Conduff, City Manager (Present for Closed Session Only) Howard Martin, Assistant City Manager EXCUSED: Dick Smith UNEXCUSED: Jim Wilson ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Receive a report, hold a discussion and provide staff direction regarding the City Hall in the Mall Relocation. Susan Croff, Utilities Process/Quality Control Auditor, presented this item. Newell asked how the new location would relate to customer access and hours of business. Martin explained that the space is located next door to Penny's, and commented that hours of business will correspond with mall hours and also maintain the flexibility to reduce hours when needed. White was concerned with the $77,000 build-out cost. Martin explained that other locations, such as the Albertson's shopping center, might be cheaper per square foot to lease, but the suites are larger than needed. Hopkins was also concerned with the $77,000 build-out cost and commented that corporate headquarters could possibly terminate the City's temporary lease before the permanent lease begins. He suggested that the lease document include a line stating that the agreement will start with a temporary lease and change to a permanent lease. It was the consensus of the Board that the lease should become permanent as soon as it is approved by the City Council in January. EXHIBIT 3 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 13, 2003 Airport and Transportation Operations Jon Fortune, Public Safety and Transportation Operations SUBJECT Consider adoption of an Ordinance of the City of Demon authorizing the City Manager to execute on behalf of the City of Demon Amendmem No. 2 to an Airport Project Participation Agreement with the Texas Department of Transportation dated December 4, 2001 relating to the construction of improvements at the Denton Municipal Airport; and declaring an effective date. BACKGROUND On December 4, 2001 the City of Demon executed an Airport Project Participation Agreement with the TxDOT, Aviation Division for certain developments on the Denton Municipal Airport. The Project is described as follows: construction services to rehabilitate and mark Runway 17-35; reconstruct partial parallel taxiway; rehabilitate and mark parallel and stub taxiways to Runway 17-35; rehabilitate and mark hangar access taxiways; install medium intensity taxiway lights and edge reflectors; rehabilitate apron; reconstruct apron; construct helipad; upgrade runway signage; and install security fencing and install medium intensity runway lights at the Denton Airport. Upon completion of certain improvements to the runway lighting and signage in the original project, TxDOT determined the runway lighting system should be replaced. The initial "Engineer's Opinion" on the cost of replacing the entire runway lighting system was $260,442 in June 2002. With this understanding, TxDOT increased the original gram agreemem of $1,958,000 by administrative authority by the maximum of 15% to a total of $2,251,700 in July 2002. The additional City of Demon gram match of $39,994 was submitted to TxDOT in January 2003. This was a match for both federal 90/10 match and over $30,000 in additional funding to pay for a portion of the project at 100%, as TxDOT deemed some work ineligible. In April 2003 TxDOT awarded a bid of $154,962 to Rural Electric for the construction phase of the Runway Lighting Project, thus lowering the overall cost of the lighting project. This phase of the project also included an additional $18,591 for design services and $14,068 for contingency purposes. Therefore, the total runway lighting is estimated at $187,621. TxDOT is requesting a total of $27,460 in matching funds from the City of Demon for the Runway Lighting phase of the gram; $17,796 in 90/10 match for the federal portion of the gram and $9,664 in 50/50 State match for work originally deemed ineligible. This Agreement will decrease the original estimated amount submitted to the State by the City in the amount of $16,725 allowing for a credit in the same amount in our next grant project. The approval of the proposed APPA outlines the approval of this decrease and the acceptance of the construction phase of this project. The project will replace all runway and taxiway lighting that was not addressed in the construction phase of the original grant agreement. ESTIMATED SCHEDULE OF PROJECT TxDOT is requesting two signed agreements to be returned expeditiously. TxDOT will provide Rural Electric with a letter to proceed with construction upon TxDOT's receipt and signature of this agreement. Construction is estimated to last 90 days. PRIOR ACTION/REVIEW The City Attorney's Office has reviewed and approved this Ordinance. Advisory Board unanimously recommends approval of this APPA. The Airport FISCAL INFORMATION The original project cost, original project description and runway lighting improvemems, was previously amended for a total of $2,251,700. TxDOT has decreased the total project cost to $2,167,573. Total obligation to the City for the entire grant is $220,623. TxDOT curremly has all necessary matching funds from the City. EXHIBITS Ordinance TxDOT Airport Project Participation Agreement Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Ou~ Documents\Ordinances\03\Txdot Airport Runway 17-35( Amendment 2).doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY OF DENTON AMENDMENT NO. 2 TO AN AIRPORT PROJECT PARTICIPATION AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION DATED DECEMBER 4, 2001 RELATING TO THE .CONSTRUCTION OF IMPROVEMENTS AT THE DENTON MUNICIPAL AIRPORT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Pursuant to Ordinance No. 2001-463 the City of Denton entered into an Airport Project Participation Agreement, dated December 4, 2002 with the Texas Department of Transportation ("TxDOT") related to the construction of improvements at the Denton Municipal Airport (the "Existing Agreement"); and WHEREAS, Pursuant to Ordinance No. 2002-209 the City of Denton entered into Amendment No. 1 to the Airport Project Participation Agreement, dated July 16, 2002 with TxDOT calling for an increase in financial assistance and City participation; and WHEREAS, TxDOT and the City desire to enter into Amendment No. 2 to the Existing Agreement, a copy of which is attached hereto and made a part hereof by reference ("Amendment No. 2") calling for a decrease in financial assistance and City participation~ NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute Amendment No. 2 on behalf of the City of Denton. SECTION 2. The City Manager or his designee is the City's authorized representative who is directed to comply with any assurances, conditions, or agreements required to be executed to decrease the funds as provided under Amendment No. 2. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: S:\Our Documents\Ordinances\03\Txdot Airport Runway 17-35 ( Amendment 2).doc APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: '~ TEXAS DEPARTMENT OF TRANSPORTATION AIRPORT PROJECT PARTICIPATION AGREEMENT (Federally Assisted Airport Development) TxDOT prOject No.:AP DENTON 2 TxDOT CSJ No.: 0218DNTON TxDOT Contract No. ' 2XXAV028 TO: FROM: Amendment No. 02 to the Agreement Part I - identification of the Project The City of Denton, Texas The State of Texas, acting through the Texas Department of Transportation The City of Denton, Texas, hereinafter referred to as the "Sponsor," and the Texas Department of Transportation, hereinafter referred to as the "State," have entered into an Airport Project Participation Agreement TxDOT CSJ Number 0218DNTON, executed by the Sponsor on . December 4, 2001, and by the State on December 11, 2001, for' the development of the Denton MUnicipal Airport,. hereinafter referred to as the ,Airport". '.. " The project is described as follows: construction services to rehabilitate and mark Runway 17-35; reconstruct partial parallel taxiway; rehabilitate and mark parallel and stub taxiways to Runway 17-35; rehabilitate and mark hangar access taxiways; install medium intensity taxiway lights and edge reflectors; rehabilitate apron; reconstruct apron; construct helipad; upgrade RUnway signage; and install security fencing and install medium intensity runway lights at the Denton Municipal Airport. It is in the mutual interest of the Sponsor and the State to decrease the agreement by $84,127. Part'Ill- Offer' of Financial Assistance, as changed by Amendment No. 0!; estimates .total project costs to be $2,251,700; and financial-assistance is currently limited to $2,026,530 in federal funds and $225,170 in local sponsor funds. The following amendment to the Airport Project PartiCipation Agreement shall become effective upon execution of this Amendment by the Sponsor and the State. The Airport Project Participation Agreement is mended as follows: On Part 1I, Item No. 2 of the Agreement, change Amount A, estimated total construction Page 1 of 3 costs, and any fttrther references in the Agreement to Amount A, to $2,167,573.00. 2. On Part II, Item No. 2 of the Agreement, change Amount B, estimated construction costs eligible for federal financial assistance, and any further references in the Agreement to Amount . B, to $2,157,909 and is eligible for 90% federal financial assistance and $9,664 is eligible for 50% federal financial assistance. 3. On Part II, Item 3 of the Agreement, change Amount C, the maximum obligation of the United States payable under this offer, and any further references in the Agreement to Amount C, to $1,946,950.00. 4. On Part II, Item 4 of the Agreement, change Amount D, Sponsor's share o'f the estimated construction costs, and any further references in the Agreement to Amount D, to $220,623.00. All other terms and conditions of the agreement are unchanged and remain in full force and effect. This Amendment to the Airport Project Participation Agreement between the City of Denton, Texas, and the Texas Department of Transportation is mutually agreed to and accepted. Executed this day of ,20 The City of Denton, Texas Sponsor Witness Signature Sponsor Signature Witness Title ATTEST: JENNIFER WALTERS, BY: CITY SECRETARY APPROVED AS_TO BY: ~,~z~ ~AL FORM: CITY ATTORNEY Page 2 of 3 Sponsor Title Execution by the State Executed by and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs and grants heretofore approved and authorized by the Texas Transportation Commission.. STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION By: Date: Page 3 of 3 AGENDA INFORMATION SHEET AGENDA DATE: May 13, 2003 DEPARTMENT: Airport and Transportation Operations ACM: Jon Fortune, Public Safety and Transportation Operations SUBJECT Consider adoption of an Ordinance of the City of Demon authorizing an Agreemem between the City of Demon and the Federal Aviation Administration to provide for air traffic controllers at the Denton Municipal Airport; and providing an effective date. BACKGROUND On January 8, 2002, via Ordinance 2002-005, the City of Demon accepted a gram from the Texas Departmem of Transportation, Aviation Division (TxDOT) for the construction of an air traffic control tower at the Denton Airport. TxDOT is providing a 50% match on the construction of the facility not to exceed $500,000. As part of the gram compliance in accepting this financial assistance, the City of Demon agreed to staff the comrol tower for a minimum often years. Prior to accepting the TxDOT grant for construction assistance, the Federal Aviation Administration (FAA) provided written approval for financial assistance for personnel services if the Denton Airport constructed a control tower facility. The FAA provides financial assistance for air traffic comrol (ATC) personnel services at approximately 400 comrol towers nationwide through the Federal Comract Tower Program (FCT). Based on a Benefit Cost Study completed by the FAA in 2001, the FAA indicated that the Demon Airport would be eligible for the Cost Sharing Program of the FCT. The Cost Sharing Program allows a local sponsor (City of Demon) to participate in a matching gram providing ATC services. The original Benefit Cost Study for the Demon Airport indicated that current air traffic levels warrant FAA assistance for 93% of total personnel costs for operations from 7:00 AM to 9:00 PM seven (7) days per week. ESTIMATED SCHEDULE OF PROJECT Upon approval of this Gram Agreemem, FAA will engage the services of the regional ATC services provider, RVA, Inc., to submit a cost proposal for desired service. FAA has indicated that official ATC services could begin as early as July 1, 2003 with a three week training period prior to said date. PRIOR ACTION/REVIEW The City Attorney's Office has reviewed and approved Management recommends approval of this Agreement. this ordinance. Airport FISCAL INFORMATION The FAA has not received the final cost proposal for ATC services; however, the FAA has provided the City with a proposed total estimate for services at $275,000 to $300,000. The FAA share of $300,000 would be $279,000 and the City match would be $21,000 per year. The FY 2003 Airport Budget includes funding to cover the proposed personnel costs of the tower. EXHIBITS Ordinance FAA Federal Contract Tower Agreement Respectfully submitted: Mark Nelson Director of Airport and Transit Operations ORDINANCE NO. AN ORDINANCE AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE FEDERAL AVIATION ADMINISTRATION TO PROVIDE FOR AIR TRAFFIC CONTROLLERS AT THE DENTON MUNICIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council hereby finds that the Contract Airport Traffic Control Tower Operating Agreement between the City of Denton and the Federal Aviation Administration approved by this ordinance is in the public interest; NOW THEREFORE, TI-rE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: Section 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. Section 2. The City Manager or his designee is hereby authorized to execute on behalf of the City of Denton the Contract Airport Traffic Control Tower Operating Agreement between the City of Denton and the Federal Aviation Administration in substantially the same form as of the Agreement attached hereto and made a part hereof by reference. Section 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. BY: '~ Department of Transportation Federal Aviation Administration CONTRACT AIRPORT TRAFFIC CONTROL TOWER OPERATING AGREEMENT In consideration of the air traffic control (ATC) service being provided to the Airport Sponsor by the Government at the City of Denton Municipal Airport, the Airport Sponsor agrees to the following terms and conditions at no cost to the Government: 1. The Airport Sponsor shall provide an airport traffic control tower (ATCT) structure meeting all applicable state and local standards including, but not limited to, applicable building, fire, safety, environmental, and security, codes and regulations. The Airport Sponsor further agrees to maintain the ATCT structure in good and tenantable condition throughout the term of the agreement. 2. The Airport Sponsor shall also provide and maintain on a continuing basis, all utilities and services including heating, air conditioning, electrical, water, gas, sewer, janitorial (to include washing tower cab windows and shades, interior and exterior, when necessary), and security services necessary for the ongoing operation of ATC service. 3. The Airport Sponsor shall also provide and maintain all ATC operational equipment located or presently installed in the ATCT to include, ATC and safety equipment, communications equipment, runway lighting equipment, weather reporting equipment, navigational equipment and all wiring and control related to the equipment. The equipment will be maintained in accordance with applicable FAA standards and regulations. 4. The Airport Sponsor shall be responsible for the proper and continued functioning of ali equipment that the Government determines is necessary for ATC operations, but that cannot be placed in operation or otherwise controlled from the ATCT building. Examples include airport lighting, windsock, obstruction lights, rotating beacon, VASI, etc. 5. The Airport Sponsor agrees to enter into a Letter of Agreement (LOA) with the contractor's local representative specifically for the purpose of providing an airport point of contact and procedures to follow to ensure a timely response to requests concerning equipment or building problems. In accordance with FAA Order 7210.3, Section 3, other Letters of Agreement will be necessary for topics such as airport emergency service, control of vehicular traffic on airport movement areas, operation of airport lighting, and assigned to the ATCT are encouraged to enter into letters of local procedures, agreements or understandings. However the terms and conditions set forth in this agreement or the FCT contract cannot be waived or superseded by such local agreements. 6. The Airport Sponsor agrees to hold the Government harmless and indemn/fy the Government for damages the contractor inflicts. FAA will not be financially liable for the actions of the contractor regardless of the dollar amount. 7. The Airport Sponsor agrees that notwithstanding any other provisions of this operating agreement, the Government's ability to provide contract ATC service is contingent upon the appropriation of adequate funds fi:om year to year that enable the Government to provide contract ATC services to the public. If adequate annual appropriations are not provided, this operating agreement may be terminated without penalty to the Government. 8. The sponsor is aware of current FAA procedure to recalculate benefit/cost ratios annually to determine the percentage of funds for which the FAA and the airport are responsible. FAA provides full funding for sites with a benefit/cost ratio of 1.0, or greater. 9. The sponsor is aware that funding from the FAA Contract Tower Program is provided for contract ATC services only. The undersigned agree to the terms and conditions of this agreement: CITY OF DENTON, TEXAS MICHAEL A. CONDUFF, CITY MANAGER FEDERAL AVIATION ADMINISTRATION (Type Name & Title) (Signature) (Signature) (Oate) ATTEST: JENNIFER WALTI~,RS~ CITY SECRETARY (Oate) BY: AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 13, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Sharon Mays 349-8487 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual contract for the purchase of rubber goods testing; providing for the expenditure of funds therefore; and providing an effective date (Bid 2976-Annual Price Agreement for Rubber Goods Testing awarded to Texas Meter and Device Company in the estimated amount of $25,000). BID INFORMATION This bid is for the annual contract to test rubber goods used in the handling of energized high volume power lines. The goods consist of rubber gloves, rubber hoses, rubber blankets, "hot sticks" and other related high voltage handling devices. OSHA, ANSI, and ASTM safety requirements call for testing of all high voltage rubber goods for wear cracks, pinholes, and other safety considerations. The primary user of this contract will be the Electric Distribution Department. RECOMMENDATION We recommend award of this bid to Texas Meter and Device Company in the estimated amount of $25,000. PRINCIPAL PLACE OF BUSINESS Texas Meter and Device Company Waco, TX ESTIMATED SCHEDULE OF PROJECT Rubber goods are normally picked up, tested, and returned within two weeks. This is an annual agreement with an option to renew for an additional year if agreed upon by both parties. FISCAL INFORMATION Funding for this item will come from Electric Distribution account 600300.6314.5830. Agenda Information Sheet May 13, 2003 Page 2 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 2976 O 0 0 LU CE) CE) 0 mm Z LU LU LU LU ~,,,,1~. ~ ~ :::::::::::::::::::::::: o o o o o o o . . 0 0 0 >- z c~ o o Oh LD LD 0 0 0 z z z · - 0 ~ x ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF RUBBER GOODS TESTING; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2976-ANNUAL PRICE AGREEMENT FOR RUBBER GOODS TESTING AWARDED TO TEXAS METER AND DEVICE COMPANY IN THE ESTIMATED AMOUNT OF $25,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 2976 1,2 Texas Meter and Device Company Exhibit A SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 2976 0 0 iiiiiiiiiiiiiiiiiiiiiii~iiiiiiiiiiiiiiiiiiiiiii ~- c ::::::::::::::::::::::: CC: ~ iiiiiiiiiiiiiiiiiiiiiii u ~ L) ::::::::::::::::::::::: AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 13, 2003 Materials Management Questions concerning this acquisition may be directed to Tom Shaw 349-7100 Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual contract for the purchase of electric meters, CTs, meter sockets and related items; providing for the expenditure of funds therefore; and providing an effective date (Bid 2982-Annual Price Agreement for Electric Meters, CTs, Meter Sockets, and Related items awarded to the lowest responsible bidders in the estimated amount of $200,000). BID INFORMATION This bid is for Warehouse items that are used by Electric Metering for all necessary electric revenue meters and associated equipment. There are fifty-eight different types of equipment needed to support the metering system. The equipment is used to add new customers to the system and to maintain our existing metering system. RECOMMENDATION We recommend award of this bid to the lowest responsible bidder for each item as listed on Attachment 1. A summary of the recommended items for each vendor is listed below. Item# Vendor Amount 1-9 Wesco Distribution, Inc. Exhibit A 10 Utilicor Exhibit A 11,18-28 Hughes Supply BR 3040 Exhibit A 13 TransData, Inc. Exhibit A 14-17, 33-46 Texas Meter & Device Company Exhibit A 29-32 Priester Supply Exhibit A 47-58 Techline, inc. Exhibit A PRINCIPAL PLACE OF BUSINESS Hughes Supply BR 3040 Denton, TX Priester Supply Arlington, TX Techline, Inc. Fort Worth, TX Texas Meter & Device Company Waco, TX TransData, Inc. Carrollton, TX Utilicor Mansfield, TX Wesco Distribution, Inc. Fort Worth, TX Agenda Information sheet May 13, 2003 Page 2 ESTIMATED SCHEDULE OF PROJECT This is an annual agreement with an option to renew for an additional year if agreed upon by both parties. FISCAL INFORMATION These items will be purchased on an as needed basis through the Warehouse and charged back to the appropriate department. Attachment 1: Tabulation Sheet 1-AlS-Bid 2982 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent m- z mmm mmm mmm mmm (D --- < ~ ~ m oz o z z oz o z z z z z :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :::::::::::::::::::::::::: z z z :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :::::::::::::::::::::::::: z z z :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :::::::::::::::::::::::::: .~ 0 ~ 0 0 0 ~ ~ o o o o o o o Z Z Z Z ;;;;;;;;;;;;;;;;; Z Z Z . . ~ ~ ' . 0 0 0 0 0 0 0 z z z z ~ z z z :::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::: ~ 0 0 ~ ~ 0 0 ::::::::::::::::::::::::::: ~ ::::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::: 0 0 0 ~ ~ 0 0 z z z ~ z z 0 0 0 0 0 0 ~ z z z ~ z z z 0 0 0 0 0 0 0 z z z z ~ z z z ~ ~ > ~ ~ o ~ ::::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::: z z z z z z z z ~ 0 0 0 z z z z z z z z Oz Z Z Z Z Z Z z z z z z z z Oz Z Z Z Z Z Z °z z z z z z z z z z z z z z z z =o ~ o o,~ ~ o6 ;;;;;;;;;;;;;;;;;;;; m-.-: · :::::::::::::::::::::::::: z z z o© o© °z z z z z z z z rn © Z rn rn rn rn °z z z z z z z c,i o..(D ~-0~ rWz z~>< 0n~ ~oo ,,,o 69- z a z 0 7 O_ m m ca a_ ..r>. ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF ELECTRIC METERS, CTS, METER SOCKETS AND RELATED ITEMS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2982-ANNUAL PRICE AGREEMENT FOR ELECTRIC METERS, CTS, METER SOCKETS, AND RELATED ITEMS AWARDED TO THE LOWEST RESPONSIBLE BIDDERS IN THE ESTIMATED AMOUNT OF $200,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 2982 1-9 Wesco Distribution, inc Exhibit A 2982 10 Utilicor Exhibit A 2982 11, 18-28 Hughes Supply BR 3040 Exhibit A 2982 13 Transdata, inc. Exhibit A 2982 14-17,33-46 Texas Meter & Device Co. Exhibit A 2982 29-32 Priester Supply Exhibit A 2982 47-58 Techline, inc. Exhibit A SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID2982 W W C) ~W 0 1.1_ LLI LLI LLI LLI 0 0 LU LO O0 oO 69- d 0 Z C) on o '-~ LLI r~ ~ , ~o o }- Z AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 13, 2003 Questions concerning this acquisition may be directed Materials Management to Ross Chadwick 349-8101 Alex Pettit 349-8595 Kathy DuBose, Fiscal and Municipal Services ¢~-~ SUBJECT Consider adoption of an Ordinance authorizing the City Manager to execute change number one to the comract between the City of DeNon and Visionair, inc; providing for the expenditure of funds therefore; and providing an effective date (Ordinance 2000-457; File 2640-Agreemem for Purchase, Licensing, Programming, implememation, Training, Service and Support of Fire and Police Support Software and Hardware Between the City of DeNon and Visionair, inc. awarded to Visionair, inc. in the amoum of $1,237,934.95 and File 3018-Change Order Number One in the deduct amoum of $55,247.60 for a total amount of $1,182,687.35). BID INFORMATION Visionair, Inc. recemly informed the City that they would be unable to provide the portion of their comract with the City that is associated with the delivery of Emergency Medical Services software. As a result, we have redefined the scope of work of the original contract deleting that portion and reducing the total cost. All other provisions of the original agreemem will remain unchanged. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) Council approved the original Visionair Air, Inc. comract in the amount of $1,237,934.95 on December 19, 2000. RECOMMENDATION We recommend approval of Change Order One in the deduct amoum of $55,247.60. PRINCIPAL PLACE OF BUSINESS Visionair, Inc. Castle Hayne, North Carolina ESTIMATED SCHEDULE OF PROJECT This change order will become effective upon Council approval. Agenda Information sheet May 13, 2003 Page 2 FISCAL INFORMATION The contract is being funded from account 83000700.1355.30100 and change order funds will be used to fund the purchase of the Emergency Medical Services Software from another vendor. Attachment 1: Visionair Change Order 1 -AlS-File 3018 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Change Control Form City of Denton 00 0196-3 ,, CAD, RMS, Mobile, Fire Mobile, FIRE, Paperless, EMS, Inform, Inform Corporate viSionAIR contract order number: 00 0196 VisionEMS ,,, Change in the,Statement of Work"(SOW)and Contract documents Affected Documents: Statement of Work (SOW), Quote Assessment & Resolution Accepted ~ or Change Not Aqcepted ~ ,, B~.,,~ ~L 01t21f03 Tim Smith Lisa Clark, Teresa James ~ ~ 01f29/03 Lisa Clark ~,~D~ ::~:01/29/03 VisionAIR is not continuing development of VisionEaS and Denton would like to purchase directly from Pinpoint. The amount in the contract for VisionEUS is: EMS Module 20 licenses -- $27,460.00 EMS Maintenance at 8x5 -- $~ ,029.60 EMS Configuration -- $3,000.00 EMS Training for 17 days at $1200 per day -- $20,400.00 Tetai Return is: $55,247.60 Verified sol. are and se~ices have not been delivered or inveiced. Once this change order is signed, VisionAIR will process and ~11 relsted line items will be void from the contract. The contract will be reduced by $55,247.60. Page 1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE CHANGE ORDER NUMBER ONE TO THE CONTRACT BETWEEN THE CITY OF DENTON AND VISIONAIR, INC.; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (ORDINANCE NO. 2000-457; FILE 2640-AGREEMENT FOR PURCHASE, LICENSING, PROGRAMMING, IMPLEMENTATION, TRAINING, SERVICE AND SUPPORT OF FIRE AND POLICE SUPPORT SOFTWARE AND HARDWARE BETWEEN THE CITY OF DENTON AND VISIONAIR AWARDED TO VISIONAIR, INC. IN THE AMOUNT OF $1,237,934.95 AND FILE 3018-CHANGE ORDER NUMBER ONE IN THE DEDUCT AMOUNT OF $55,247.60 FOR A TOTAL AMOUNT OF $1,182,687.35). WHEREAS, on December 19, 2000 by Ordinance No. 2000-457, the City awarded a contract to Visionair, Inc., in the amount of $1,182,687.35 for the installation of a Public Safety System; WHEREAS, the Staff having recommended, and the City Manager having recommended to the Council that a change order be authorized to amend such contract agreement with respect to the scope of work and a decrease in the payment amount, and said change order fees under the proposed contract 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 Change Order No. One, decreasing the amount of the agreement between the City and Visionair, Inc., which is on file in the office of the Purchasing Agent, in the amount of Fifty Five Thousand two hundred forty seven and 60/100 (55,247.60), is hereby approved and the expenditure of funds therefore is hereby authorized in accordance with said change order. The total purchase order amount decreases to $1,182,687.35. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of, 2003 ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROX;rn a~T~Tr~aT r~UM: ..... " ~ 'TORNEY HERBEt ..... ~ BY: 3-ORD-File 3018 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 13, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance authorizing the City Manager to approve a Memorandum of Understanding (MOU) with the University of North Texas to authorize participation in various research projects originated by the City of DeNon; providing for the expenditure of funds therefore; and declaring an effective date (File 3024-Memorandum of Understanding with the University of North Texas). BID INFORMATION The City of DeNon and the University of North Texas (UNT) have performed a number of collaborative projects related to water, wastewater, and mosquito assessment/control. Most of these projects are small (less than $25,000) and are performed on an "as needed" basis. Although the partnership between UNT and the City of DeNon has been a great benefit for both entities, substantial personnel time is required to work out the terms for each of these individual research agreemems. City staff recognized that this project could be streamlined by both emities adopting a MOU that is applicable to every project initiated by the City of Denton. Once established, the MOU outlines the terms of each project and reduces the amoum of City of DeNon and UNT staff time needed for project preparation. The following are key features of this MOU: · Individual projects under this MOU may not exceed $25,000 per project and may not exceed $100,000 per year. · The adoption of this MOU streamlines the process and reduces the personnel resources needed for both the City of Demon and UNT. · The adoption of this MOU will allow the City of Denton to rapidly request and obtain research support from UNT for time sensitive research needs. · The MOU outlines an indemnification clause and other legal/risk related topics that the legal and risk management departments at both the City of Denton and UNT have reviewed. · UNT has agreed to allocate only five percem of the total project cost for project overhead. The usual overhead rate for UNT is 45%. The adoption of the MOU will represem a substamial savings to the City of DeNon. The need for decreased staff resources and the low UNT overhead rate will comribute to these savings. Another substamial benefit to the City of DeNon is the ability to quickly initiate research support for time sensitive projects. Agenda Information Sheet May 13, 2003 Page 2 PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item at its April 11, 2003 meeting. RECOMMENDATION We recommend award of the approval of this Memorandum of Agreement in an amount not to exceed $100,000 per year. PRINCIPAL PLACE OF BUSINESS University of North Texas Denton, Texas ESTIMATED SCHEDULE OF PROJECT The Memorandum of Agreement will become effective after approval by Council. FISCAL INFORMATION This project will be funded from various budgeted accounts depending upon the project. 1-AlS-File 3024 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO APPROVE A MEMORANDUM OF UNDERSTANDING (MOU) WITH THE UNIVERSITY OF NORTH TEXAS TO AUTHORIZE PARTICIPATION IN VARIOUS RESEARCH PROJECTS ORIGINATED BY THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND DECLARING AN EFFECTIVE DATE (FILE 3024- MEMORANDUM OF UNDERSTANDING WITH THE UNIVERSITY OF NORTH TEXAS). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager, or his designee, is hereby authorized to execute the attached Memorandum of Understanding and to make the expenditures provided for in the Memorandum of Understanding, 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 .,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY / 2-ORD-File 3024 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ("MOU") is made and emered imo as of the effective date provided herein below, by and between the City of DeNon, Texas, a Texas home rule municipal corporation (the "City") and The University of North Texas, a state university ("UNT") and UNT's Institute of Applied Sciences (lAS) acting herein, by and through their duly authorized representatives. WHEREAS, the City and UNT have established an ongoing relationship whereby UNT lAS has performed valuable professional research services for the City; and WHEREAS, the City and UNT lAS desire to memorialize this relationship in this Memorandum of Understanding to continue to provide for such research services; Now, Therefore, in consideration of the covenants and agreements herein contained, the parties agree as follows: Subject to the terms and conditions comained herein, the City will comract with UNT and UNT lAS will provide, as an independem comractor, research services as provided in this MOU and in subsequent statements of work as provided herein. 1. Purpose. The purpose of this MOU is to streamline the process for conducting collaborative research projects that are initiated by the City. This MOU formalizes ongoing collaborative research efforts that have existed between the City and UNT lAS for a number of years. Many of these efforts have involved relatively small (less than $25,000.00) research projects and have primarily involved the use of graduate studems conducting research of use to the City and UNT lAS. 2. Scope. Any research project that meets the following criteria will be subject to this MOU: a. It is initiated by the City or joimly between the City and UNT 1AS and b. The total project cost is $25,000.00 or less; and A scope of work will be determined prior to the initiation of each project and agreed upon by both parties. 3. Statement of Work. Before initiating a project the City will submit to UNT a request for a Statemem of Work outlining the scope of work for the project. Within a reasonable time thereafter, UNT shall submit to the City a proposal for the Statemem of Work. Such proposal shall be approved by the UNT Office of Research Services and shall set forth the Scope of Work, estimated time of completion and estimated cost. The cost of the project shall be on a cost- reimbursable basis and shall not exceed $25,000.00 (the "Project Cost"). UNT shall allocate five percem (5%) of the total Project Cost for overhead. The City, upon approval of UNT proposal shall notify UNT, per Section 11, of the City's desire to proceed with each StatemeN of Work. Each StatemeN of Work shall specify the Project Cost and the Term. 4. Performance. UNT shall use all reasonable efforts to perform the services and deliver the reports and other deliverables specified in each StatemeN of Work within the stated time as agreed to between the parties. 5. Key Personnel. UNT shall provide a Project Director for each StatemeN of Work. Should the Project Director be removed from employmeN at UNT for any reason, the parties shall mutually agree to his/her replacement by other UNT personnel. 6. Terms and Termination. This MOU shall commence on the effective date hereof and shall coNinue in full force and effect for a period of three (3) years. Either party may terminate the agreemeN at any time by giving not less than thirty (30) days advance written notice to the other party. Termination or cancellation shall not affect the rights and obligations of the parties accrued prior to termination. The City shall be liable for all expenses incurred and all non- cancelable commitments made prior to UNT's receipt of the notice of termination and shall pay UNT for same within thirty (30) days of final invoice. On receipt of paymeN in full for work performed, UNT shall deliver the results of all previously unreported work in such form as it exists. 7. Payment. For the services for projects including counsel, reports, and other items deliv- ered hereunder, City shall pay UNT on a cost-reimbursable basis in an amouN not to exceed $25,000 per StatemeN of Work not to exceed a total of $100,000 per year. In the performance of work under this MOU, UNT agrees to expend funds in accordance with the budget established for each specific StatemeN of Work issued under this MOU. UNT shall submit monthly invoices to the City within thirty (30) days for costs incurred during the preceding period for each StatemeN of Work. All invoices shall be sen to: City of Denton/Accounts Payable 215 E McKinney St Denton, Texas 76201 The City agrees to reimburse UNT for the costs billed within thirty (30) days of receipt of invoice. All payments shall be sent to: Office of Grant Accounting University of North Texas P.O. Box 311128 DeNon, TX 76203 8. Equipment. Ownership of all permaneN and expendable equipmeN purchased by UNT under this AgreemeN shall become the sole property of UNT at the time of purchase, and title thereto shall vest solely in UNT. 9. Rights in Data, Copyrights and Publication. Data (which is herein defined as including, but not limited to, software, writings, sound recordings, pictorial reproductions, drawings or other graphical representations, reports, blueprints and works of any similar nature, whether or not copyrighted or copyrightable) first produced or composed by UNT employees in the performance of work under this MOU and any applicable Statement of Work shall be the property of the City, provided however, that the City shall grant to UNT a royalty-free, non- exclusive license to reproduce, modify and use all such data for its own purposes. UNT shall be free to publish the results of work under this MOU and any applicable Statement of Work. Title to and the right to determine the disposition of any copyrights on publications relating to the performance of the work hereunder shall remain with UNT, who shall have the sole right to determine the disposition of those copyrights. 10. Inventions and Patent Rights. Title to any invention or discovery made or conceived in the performance of research by UNT under this MOU and any applicable StatemeN of Work shall remain with UNT, which shall have the sole right to determine the disposition of any patens or other rights resulting there from, provided however that upon issue of any paten on any such inveNion or discovery, the City shall have a sixty (60) day option for an exclusive license to practice the invention for a period of time and at a royalty rate to be negotiated. 11. Notices. All notices under this Agreement given by either party to the other shall be in writing and shall be sen by and addressed to the following individuals: For UNT: Reata Busby Associate Vice Provost for Research Office of Research Services University of North Texas P.O. Box 305250 Denton, Texas 76203-5250 rbusby~unt.edu 940.565.3940 (voice) 940.565.4277 (fax) By Courier: Reata Busby Avenue C ~ Chestnut Administration Bldg. Room 160 DeNon, TX 76203 940.565.3940 For City: City Manager, City of Denton City Hall 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8596 12. Independent Contractor. UNT is an independent contractor and shall be free to exercise its discretion and independeN judgmeN as to the method and means of performance of the services coNracted for by the City. UNT employees shall in no sense be considered employees of the City and neither UNT nor City personnel will, by virtue of this MOU or any StatemeN of Work, be eNitled or eligible, by reason of the coNractual relationship hereby created, to participate in any benefits or privileges given or extended by either party to its employees. This agreement is not an agreement of joint venture, joint enterprise, partnership or employment. 13. Non-Indemnification. Unless otherwise required by law, neither party shall by reason of this MOU, or any applicable StatemeM of Work, be obligated to defend, assume the cost of de- fense, hold harmless, or indemnify the other from any liability to third parties for loss of or damage to property, death, or bodily injury arising oM of or connected with the work under this MOU or any applicable Statement of Work. 14. Governing Law and Venue. This MOU and any applicable StatemeM of Work are fully performable in DeMon CouMy, Texas and shall be governed by and construed in accordance with the laws of the State of Texas. 15. Publicity. Neither party to this MOU or any applicable Statement of Work may use the name of the other in news releases, publicity, advertising, or product promotion withoM the prior written consent of the other, except that UNT may include the City's name in reports as required by state and federal mandates. 16. Assignment. Neither party may assign their rights and/or duties hereunder withoM the written permission of the other party. 17. Amendments. This MOU may be extended, renewed, or otherwise amended at any time by the mutual written consent of the parties. No modification of this MOU or waiver of the terms or conditions hereof shall be binding upon either party hereto unless approved in writing by an authorized representative, or shall be effected by the acknowledgement or acceptance of purchase order forms containing other or differeM terms and conditions whether or not signed by an authorized representative of the party. 18. Successors and Assigns. This MOU shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and, except as otherwise provided in this MOU, their assigns. 19. Captions. The captions to the various provisions of this MOU are for informational purposes only and shall not alter the substance of the terms and conditions of this MOU. 20. Alternative Dispute Resolution. Chapter 2260 of the Texas Government Code establishes a dispute resolution process for contracts involving goods, services and certain types of projects. If Chapter 2260 applies to this Agreement, the parties must use the statutory dispute resolution process to attempt to resolve disputes arising under this Agreement. Signed to be effective this the __ day of ., 2003. UNIVERSITY OF NORTH TEXAS By Date Phillip C. Diebel Vice President for Finance & Business Affairs ATTEST: APPROVED AS TO FORM: CITY OF DENTON, TEXAS BY: Michael A. Conduff ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 13, 2003 Purchasing Questions concerning this acquisition may be directed to Sharon Mays 349-8487 Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas authorizing the expenditure of funds for payments by the City of Denton for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3017-Electrical Energy Transmission Fees in the total amoum of $1,195,204.31). 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 2003 through December 2003. The purchase orders are for paymem of a fee imposed by the Public Utility Commission of Texas (PUCT) for planned transmission services of energy delivered to the City of Denton. The Public Utility Regulatory Act of 1995 (PURA 95) required the developmem of a new, statewide mechanism for electric transmission service in Texas. PURA 95 also placed municipal utilities under the jurisdiction of PUCT for matters related to transmission. As a result, the Denton Municipal Electric Utility has been ordered by the PUCT to pay various other electric utilities in the State specific amounts. The subject purchase orders provide the City of DeNon the authority required by the City Charter to make those payments. These purchase orders will encumber funds estimated as costs for services through September 30, 2003. No funds will actually be spem umil invoices are received, reviewed, and approved. RECOMMENDATION We recommend approval as follows: Austin Energy Brazos Electric Power Coop, Inc. City Public Service Center Point Energy Texas Municipal Power Agency Oncor Transmission Division Lower Colorado River Authority South Texas Electric Coop Inc. American Electric Power West Texas Utilities American Electric Power Colorado River Authority - Change Order One $49,590.75 $57,966.00 $57,014.25 $263,853.75 $56,957.25 $260,875.50 $176,482.56 $33,139.50 $49,604.25 $153,649.50 $36,071.00 Agenda Information Sheet May 13, 2003 Page 2 PRINCIPAL PLACE OF BUSINESS: Austin Energy Austin, TX Brazos Electric Power Coop. Waco, TX City Public Service San Antonio, TX Center Point Energy Houston, TX Texas Municipal Power Agency Bryan, TX Oncor Transmission Div. Dallas, TX Lower Colorado River Austin, TX South TX Electric Coop. Nursery, TX American Electric Power Columbus, OH FISCAL INFORMATION: Funds to meet these regulatory fee obligations were budgeted in 2002-2003-budget account 600400.6072. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-File 3017 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 3017-ELECTRICAL ENERGY TRANSMISSION FEE IN THE TOTAL AMOUNT OF $1,195,204.31). 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 eleven 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 $1,195,204.31 to be paid to the Listed Utilities in the specified amount shown on Exhibit "A", which is attached to and made a part of this ordinance for all purposes is hereby authorized. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-FILE 3017 EXHIBIT "A" OP 110860- Austin Energy OP 110861- Brazos Electric Power Coop. OP 110862- City Public Service OP 110863- Center Point Energy OP 110864- Texas Municipal Power Agency OP 110865- OnCor Transmission Div. OP 110866- Lower Colorado River Authority OP 110867- South Texas Electric Coop. OP 110868- American Electric Power West Texas Utilities OP 111031- American Electric Power OP 108986- Lower Colorado River Authority-Change Order One $49,590.75 $57,966.00 $57,014.25 $263,853.75 $56,957.25 $260,875.50 $176,482.56 $33,139.50 $49,604.25 $153,649.50 $36,071.00 TOTAL $1,195,204.31 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: May 13, 2003 Parks and Recreation ACM: Howard Martin, Assistant City Manager/Utilities SUBJECT Consider adoption of an ordinance of the City of DeMon, Texas, authorizing the Mayor to execute an amendment to the two interlocal agreements by and between the City of Denton, Texas and the Denton Independent School District dated May 15, 2001 and May 14, 2002 pertaining to an aquatic center, in order to authorize the City's construction ora skate park on a portion of the aquatic center property; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND The Parks and Recreation Department has developed plans to construct a skate park adjaceM to Water Works Park, located on the DeMon Aquatic CeMer site that is joiMly owned by the City and the DeMon IndependeM School District. The skate park will be located in the southwest comer of the property, adjaceM to the water park pump house. Agreements previously executed by both entities require concurrence prior to the construction of any new facilities on the site. We have determined that these agreements, while not prohibiting the construction of the skate park, should be amended to include a specific reference to the facility. Funds for the skate park were included in bonds sold in 1999, bM the project was deferred until the aquatic center was in place. The total cost of the project is estimated at $225,000, of which $100,000 will come from existing bonds to build the site and concrete slab for the park. The DeMon Teen Council has launched a fund-raising campaign through the Denton Parks Foundation to pay for the balance, representing the cost of the equipment to be installed on the concrete slab. The facility will be operated by the Parks and Recreation DepartmeM. OPTIONS The Council may choose to adopt the proposed amendmeM, modify it or reject it. If rejected, the facility would not be built. RECOMMENDATION Staff recommends adoption of the proposed amendmeM. ESTIMATED SCHEDULE OF PROJECT Construction of the site is scheduled to begin in June, pending the City Council's approval of the construction contract at its May 13th meeting. The skating equipment will be installed as soon as sufficient money has been raised to order it. It is hoped that equipment would be installed during this summer. PRIOR ACTION/REVIEW This is Council's first action related to the skate park. The DISD board favorably reviewed the proposal of a skate park at their meeting on April 8, 2003, giving their staff direction to place the proposed amendment on the board's agenda for May 13th. FISCAL INFORMATION $100,000 is available for this project from 1999 Series General Obligation Bonds sold for park improvements. Additional funds will be contributed through the Parks Foundation for the purchase of equipment. EXHIBITS 1. Ordinance 2. Amendment 3. Map Respectfully submitted: Ed Hodney, Director/Parks and Recreation F:\admin\City Council\2003\Skate Park\Skate Park Agenda Sheet.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN AMENDMENT TO TWO 1NTERLOCAL AGREEMENTS BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON INDEPENDENT SCHOOL DISTRICT DATED MAY 15, 2001 AND MAY 14, 2002 PERTAINING TO AN AQUATIC CENTER, IN ORDER TO AUTHORIZE THE CITY' S CONSTRUCTION, OPERATION, MANAGEMENT AND MAINTENANCE OF A SKATE PARK ON A PORTION OF THE AQUATIC CENTER PROPERTY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton ("CITY") and Denton Independent School District ("DISD") have previously entered into an Interlocal Agreement dated May 15, 2001 (the "Interlocal Agreement") to provide for the construction, maintenance and operation of an Aquatic Center and an Operations Agreement dated May 14, 2002 to provide for the maintenance, management, operation, and usage of the Aquatic Center after it is constructed (the "Operations Agreement")(the Inteflocal Agreement and Operations Agreement are collectively called the "Interlocal Agreements"); and WHEREAS, the CITY and DISD desire to enter into an amendment to the Interlocal Agreements to authorize the CITY's construction, operation, management and maintenance of a skate park on a portion of the Aquatic Center Property, a copy of which is attached hereto and made a part hereof by reference (the "Amendment"); and WHEREAS, the City Council finds that the Amendment is in the public interest, NOW, THEREFOR, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Council hereby approves the Amendment and authorizes the Mayor, or in her absence the Mayor Pro Tem, to execute the Amendment on behalf of the City. SECTION 3. The expenditure of funds as set forth in the Amendment are hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR S:\Our Documents\Ordinances\03\Skate Park Amendment. doc EXHIBIT 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: S:\Our Documents\Ordinances\03\Skate Park Amendment.floc AMENDMENT TO INTERLOCAL AGREEMENTS THIS AGREEMENT is made and entered into by and between the DENTON INDEPENDENT SCHOOL DISTRICT (hereinafter "DISD"), organized and existing under the laws of the State of Texas, and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation (hereinafter "CITY"), acting by and through, and under the authority of their respective governing bodies; and WHEREAS, DISD and Agreement dated May 15, 200I "interlocal Agreement"); and CITY have heretofore entered into that certain Interlocal to provide for the construction of an Aquatic Center (the WHEREAS, DISD and CITY have heretofore entered into that certain Operations Agreement dated May 14, 2002 to amend the lnterlocal Agreement to provide for the maintenance, management, operation, and usage of the Aquatic Center (the "Operations Agreement")(the Interlocal Agreement and Operations Agreement are collectively ca/led the Interlocal Agreements '); and WHEREAS, DISD and CITY are joint owners as tenants in common of the approximate 17 acres of land upon which the Aquatic Center is located (the "Property"); and WHEREAS, the CITY is desirous of constructing, operating, managing, and maintaining at its sole expense a skate park (the "Skate Park") to be located in the southwest comer of the Property adjacent to the water park pump house as shown on Exhibit "A" attached hereto and made a part hereof by reference (the "Skate Park Property"); and WHEREAS, DISD and CITY have entered into this agreement (the "Agreement") to amend the Interlocal Agreements to provide for the CITY's use of the Skate Park Property for the conslruction, operation, management, and maintenance of the Skate Park; and NOW THEREFORE, for and in consideration of the premises and the mutual covenants set forth herein, including the benefits received by the DISD in having the Skate Park located adjacent to the Aquatic Center, the sufficiency of which is hereby acknowledged, DISD and the CITY do hereby agree as follows: ARTICLE I INCORPORATION OF PREAMBLES All matters and recitations stated in the preamble of this Agreement are true and correct and are hereby incorporated by reference into the provisions of this Agreement for all purposes. Denton Independent School District & City of Denton Amendment to InterlocaI Agreements Page 1 EXHIBIT 2 ARTICLE II PURPOSE The purpose of this Agreement, as described in the preamble, is to evidence the agreement of the DISD and CITY to allow the CITY the exclusive authority to construct, operate, manage, and maintain the Skate Park on the Skate Park Property. ARTICLE III TERM The term of this Agreement shall commence on the date on which ail parties hereto have executed this Agreement (the "Effective Date") and shall continue until the Interlocal Agreement is terminated. ARTICLE IV AMENDMENT The interlocal Agreements are hereby amended to add the following provision: "No ' ' thw~thstandmg anything contained in the Interlocal Agreements to the contrary, the CITY is exclusively authorized to construct,' operate, manage, and maintain the Skate Park on the Skate Park Property at its sole cost and expense. All revenues derived from the Skate Park shall belong to the CITY, and may be used or distributed by the CITY for any public purpose in the sole discretion of the CITY. DISD wilI not be responsible for any costs or expenses associated with the construction, operation, management, or maintenance of the Skate Park, nor shall it have any authority or responsibility to do so. All Skate Park improvements shall be the sole property of the CITY. DISD will not be entitled to any rent or other fee or charge for the CITY's use of the Skate Park Property. The usage of the Skate Park and the Skate Park Property, and any fees to be charged for such usage, shall be determined by the sole discretion of the CITY. The CITY is authorized to name the Skate Park. This provision shall be construed as DISD granting CITY permission to use the Skate Park Property for those activities described in Section 75.002(e)(2) of the Texas Civil Practice & Remedies Code (the "Code") as an owner of real property as described under Section 75.002(c) of the Code. The CITY shall post the warning sign on the Skate Park Property as required by Section 75.002(g) of the Code. Section 12.13 of the Interlocal Agreement is amended to add the following: xcept to the extent that CITY has governmental immunity and then only to the extent permitted by applicable law, the CITY agrees to indemnify and defend DISD, its trustees, officers and employees against any and all claims, demands, causes of action, costs and liabilities, including reasonable attorneys fees and court costs, arising out of, or resulting from the CITY's negligent act or omissions pertaining to its construction, operation, management and maintenance of the Skate Park. Further, DISD shall not be liable for any property damage to the Skate Park or any related facilities. Denton Independent School District & City of Denton Amendment to Interlocal Agreements Page 2 The provisions of this Section are solely for the benefit of the parties hereto and are not intended to create or grant any fights, contractual or otherwise to any third person or entity." ARTICLE V MISCELLANEOUS This Agreement is intended to supersede and amend all provisions of the Interlocal Agreements pertaining to Skate Park Property that conflict with this Agreement. All other terms and conditions of the Interlocal Agreements not amended or revised by this Agreement shall remain in full force and effect. ' IN WITNESS WHEREOF, the Denton Independent School District has caused this Agreement to be executed by its duly authorized President of the Board of Trustees; and the City of Denton, Texas has caused this Inter/ocal Operations Agreement to be executed by its duly authorized Mayor on this the ~ day of ,2003. DENTON INDEPENDENT SCHOOL DISTRICT By: Rick Wolfolk President of the Board of Trustees ATTEST: By: Jean B. Schaake, Member of the Board of Trustees CITY OF DENTON By: Euline Brock, Mayor Denton Independent School District & City of Denton Amendment to Interlocal Agreements Page 3 ATTEST: By: Jennifer Walters, City Secretary Approved as to legal form: Herbert L. Prouty, City Attorney By: ~ Denton Independent School District & City of Denton Amendment to Interlocal Agreements Page 4 Proposed/Skate Park t!.on. x~ Proposed Skate Sports Sta, ium "' ~8 EXHIBIT 3 Page 1 of 2 4' g GA. W~-C( SEE",, SP Page 2 of 2 . .OPE, GLV 5o.0o' ...... 667,$ ........... ; Y ~'l~ TEA G UE NALL AND PEt~ C 0 N S U L T I 1¢ G E N G I H 1100 MACON STREET 235 W. HICKORY STREET I2160 NORTH A FORT WORTH, TEXAS 76102 SUITE ,~100 SUITE 817-336-5773 DENTON, TEXAS 7620; DALLAS, TEX 94-O- JBJ--4177 214--461 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: May 13, 2003 Materials Management Questions concerning this acquisition may be directed to Ed Hodney 349-8271 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works contract for the construction of the Denton Skate Park; providing for the expenditure of funds therefore; and providing an effective date (Bid 2992-Demon Skate Park Project awarded to Calvert Paving Corporation in the amoum of $60,645). BID INFORMATION This bid is for the construction of a skate park that will be located adjacem to the DeNon Aquatic Center that is currently under construction. The work in general consists of grading and construction of a concrete post-tensioned slab for the purpose of creating a base area for ramps, fencing, and amenities for a skateboard park along with connecting sidewalks and associated work as required. The slab will be five inches thick measuring approximately 667' X 100' and enclosed by a four foot vinyl coated fence. Eight-foot wide sidewalks will connect the skate park to the Denton Aquatic Center facilities. RECOMMENDATION We recommend that this bid be awarded to Calvert Paving Corporation in the amoum of $60,645. PRINCIPAL PLACE OF BUSINESS Calvert Paving Corporation Denton, TX STAFF COST ESTIMATE The cost estimate provided by Teague Nall and Perkins was $80,000. ESTIMATED SCHEDULE OF PROJECT Construction on this project is scheduled to begin June 15, 2003 with an estimated completion date of August 1, 2003. Agenda Information Sheet May 13, 2003 Page 2 FISCAL INFORMATION Funding for the skate park will be provided from Parks account 40004700.1365.40100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 2992 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE DENTON SKATE PARK; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2992-DENTON SKATE PARK PROJECT AWARDED TO CALVERT PAVING CORPORATION IN THE AMOUNT OF $60,645). 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 Calvert Paving Corporation 2992 $60,645 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. That upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 2992 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: May 13, 2003 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works comract for dry boring, casing, and PVC conduit installations; providing for the expenditure of funds therefore; and providing an effective date (Bid 2995-Annual Price Agreemem for Dry Boring, Casing, and PVC Conduit Installation awarded to LB&L Cable, Inc. in the estimated amoum of $106,128). BID INFORMATION This bid will provide DeNon Municipal Electric (DME) with a comractor that is capable o£ installing dry boring. Dry Boring is the sole method allowed by the Texas Departmem of Transportation (TxDOT) for boring under their highways and roadways. These steel encased bores will allow DME to install PVC conduit and underground cables under TxDOT roadway surfaces. DME obtains TxDOT permits each time they have an electrical construction project in which a State highway or road is crossed. RECOMMENDATION We recommend award of this bid to LB&L Cable, Inc. in the estimated amoum of $106,128. PRINCIPAL PLACE OF BUSINESS LB&L Cable, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT This is an annual price agreemem that can be renewed for an additional year upon approval of terms by both parties. FISCAL INFORMATION These projects will be funded from the appropriate DME accoum for maimenance or new construction. Agenda Information sheet May 13, 2003 Page 2 Attachment 1: Tabulation Sheet 1-AlS-Bid 2995 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Z Z 0 o_ Z Z 0 113 0 u_ ILl ILl ILl ILl 0 Z tD ~ 0 0 Ll'l ........ ~ ........ :::::::::::::::::::::::: ~ ~ ~ o ~ ~ ~ ~ ~ . ~ ~ ~ ~ :::::::::::::::::::::::: :::::::::::::::::::::::::::::::::::::::::::::::: ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR DRY BORING, CASING, AND PVC CONDUIT INSTALLATIONS; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 2995-ANNUAL PRICE AGREEMENT FOR DRY BORING, CASING, AND PVC CONDUIT iNSTALLATiON AWARDED TO LB&L CABLE, iNC. iN THE ESTIMATED AMOUNT OF $106,128). 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 2995 LB&L Cable, Inc. Exhibit A SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. That upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 2995 Z Z Z 0 113 0 1.1_ ILl ILl ILl ILl AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: May 13, 2003 Planning & Development Dave Hill, 349-8314 SUBJECT 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 improvemems for a bridge bypass on Loop 288 north of Colorado; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND City Council is asked to consider adoption of an ordinance authorizing a City of DeNon / DeNon County imerlocal Cooperation Agreemem (iCA) to secure funding for the Loop 288 bridge "bypass". Under the agreemem, the City of DeNon is the lead agency responsible for completion of the bypass, with Denton County contributing up to $200,000 toward the project. Design and construction documems for the bypass have been completed, and City Council will be asked to consider approval of the construction contract award (in a separate agenda item) on May 13th. Since Loop 288 is a state facility, the Texas Departmem of Transportation (TXDOT) has reviewed and approved the construction plans for the bypass. The Loop 288 bridge bypass is needed prior to demolition of the bridge overpass to ensure proper traffic flow. in addition, the bypass will provide access to the two southernmost driveways for the Denton Crossing Retail Center that are currently blocked by the existing bridge. The funding concept that has been developed for the bypass construction is a three-way partnership, with the City of DeNon, DeNon County, and Hunt/Orix (DeNon Crossing developer) committing $200,000 each toward project costs. The DeNon County Commissioners Court considered the ICA during a briefing session on April 29, 2003, and approved the agreemem on May 6, 2003. OPTIONS 1. Adopt the ordinance. 2. Reject the ordinance. 3. Adopt the ordinance with modifications. 4. Table consideration to a later date. RECOMMENDATION Staff recommends adoption of the ordinance. ESTIMATED PROJECT SCHEDULE Earthwork and grading is amicipated to start no later than May 15, 2003, and will be funded by Hunt/Orix at an estimated cost of $211,444. The paving and related roadway work will start as soon as the earthwork is completed, at an estimated cost of $185,292, to be contracted by the City of Denton using city/county funds. The bypass will completed by September 2003, in advance of the scheduled opening of DeNon Crossing. If remaining funding is adequate, bridge demolition and berm excavation will be pursued once the bypass construction is approved and underway. PRIOR ACTION/REVIEW The City of DeNon and DeNon County emered imo a $1.6 million funding partnership in late 2002 to hire Teague Nall and Perkins (TNP) to prepare detailed design and construction documems for the widening of Loop 288. Loop 288 will be widened from 2 to 6 lanes, between 1-35E and US 380 (University Drive). During the developmem of the Loop 288 schematic (preliminary) design, the decision was made to eliminate the Rail/Trail bridge overpass (near the Target store), thus reducing project costs by bringing the roadway down to existing grade. In the future, if commuter rail is comemplated for the Rail/Trail corridor, the rail will be elevated to ensure grade separation. To ensure that Loop 288 maimains proper traffic flow, a bridge "bypass" is needed to serve motorists prior to the overpass bridge is demolished and the permanem 6-lane at-grade roadway is built. The Texas Departmem of Transportation is responsible for maimenance of the Loop 288 bridge, which has suffered significam deterioration. In fact, portions of the bridge decking have loosened and fallen free from the bridge structure, causing expensive repairs. The bridge also blocks access to two proposed driveways imo the Demon Crossing Retail Cemer, slated to open in fall 2003. FISCAL INFORNIATION The Imerlocal Cooperation Agreemem provides a Demon County commitmem of up to $200,000 for the Loop 288 bridge bypass project. ATTACHMENTS Draft Ordinance Draft Imerlocal Cooperation Agreemem Respectfully submitted: David M. Hill Asst. City Manager - Developmem Services Wal-Mart LOOP 288 BRIDGE BYPASS: LOCATION MAP 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 A BRIDGE BYPASS ON LOOP 288 NORTH OF COLORADO; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; 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 a bridge bypass on Loop 288 north of Colorado, substantially in accordance with the Interlocal Cooperation Agreement which is attached hereto and incorporated by reference herein (the "lnterlocal Cooperation Agreement"). SECTION 2. The expenditure of funds as set forth in the InterlocaI Cooperation Agreement is hereby authorized. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EUL1NE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: ~ S:\Our Documents\Ordinances~,03~Interlocal Agrmt-Loop 288 by-pass-Denton County. doc THE STATE OF TEXAS COUNTY OF DENTON INTERLOCAL COOPERATION AGREEMENT FOR ROAD IMPROVEMENTS TO LOOP 288 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 home rule municipal corporation 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 Loop 288, aS described on Exhibit "A," 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 road system; and WHEREAS, City and County mutually desire to be subject to the provisions of Texas Government Code, Chapter 791, the interlocal Cooperation Act; and City of Denton ICA 1 WHEREAS, City desires the participation of County in the Project as authorized by Texas Transportation Code §251.012; NOW, THEREFORE, follows: it is mutually agreed by the parties hereto as 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 VIII. II. The Project is described as follows: Improvements to LOOP 288 described on Exhibit "A". as III. Pursuant to Texas Government Code §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. IV. As required by Texas Transportation Code §251.012 and as evidenced by the signature of the City's representative below, the governing body of City by the execution of and approval of this Agreement approves of the expenditure of County money to participate in or to fund an amount of TWO HUNDRED THOUSAND AND 00/100 ($200,000.00), for the Project. City of Denton ICA 2 In per£ormance of this Agreement, the CITY wilI be responsibIe for hiring the engineering firm for the Project, letting and construction 'of the Project. Additionally, the CITY agrees that all funds remaining after the procurement of engineering services will be commit-ted to the construction of the Project. In performance of this Agreement, the City and as evidenced by the signature of the City's representative below, the governing body of City by the execution of and approval of this Agreement approves of the expenditure of City money to participate in or to fund an amount not to exceed TWO HUNDRED THOUSAND AND 00/100 ($200,000.00), for the Project. VII. As City proceeds in the completion of the Project, it shall submit invoices on a monthly basis for reimbursement of the County's TWO HUNDRED THOUSAND AND 00/100 ($200,000.00), unless otherwise authorized by the governing body of the County, to the County Auditor's Office, Attention: Accounts Payable, Carroll Building, 401 West Hickory, Suite 423, Denton, Texas 76201, and the County shall reimburse the City for all expenditures related to 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 not to exceed TWO HUNDRED THOUSAND AND 00/100 ($200,000.00), 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. City of Denton ICA 3 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 opportunity 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. McKirmey Street Denton, Texas 76201 MichaeI Conduff, City Manager City of Denton 215 E. McKirmey Street Denton, Texas 76201 For County: Copy to: Hon. Mary Horn Demon County Judge 110 East Hickory Denton, Texas 76201 District Attorney's Office/Civil Division 1450 East McKinney, Suite 3100 P.O. Box 2850 Denton, Texas 76202 City of Denton ICA 4 IX. 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 liabiIity 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 third 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 City of Denton ICA 5 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. EXECUTED in duplicate originals. COUNTY Denton County, Texas 110 West Hickory Denton, Texas 76201 CITY The City of DENTON, Texas 215 E. McKirmey 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 City of Denton ICA 6 Approved as to form: Robert Schell Assistant District Attomey Approved as to form: City Attorney AUDITOR'S CERTIFICATE I hereby certify funds will be available in the amount of TWO HUNDRED THOUSAND AND 00/100 ($200,000.00), toward financing the Project to accomplish and pay the obligation of Denton County, Texas trader this Agreement. James Wells, County Auditor City of Denton ICA 7 "EXHIBIT A' The Loop 288 East Project is an urban arterial. This will be designed to be a major freeway around the City of Denton. This project consists of constructing a bridge bypass at a location north of the intersection of Loop 288 and Colorado. City of Denton ICA 8 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: May 13, 2003 Materials Management Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works contract for the construction of the Loop 288 East Temporary Traffic Diversion; providing for the expenditure of funds therefore; and providing an effective date (Bid 3014-Loop 288 East Temporary Traffic Diversion awarded to Austin Bridge and Road, LP in the amount of $185,292.16). BID INFORMATION This bid is to provide paving and associated construction services in conjunction with the construction of a temporary traffic diversion on Loop 288 East at the location of the existing bridge north of Colorado Blvd. RECOMMENDATION We recommend award of this bid to the lowest responsible bidder Austin Bridge and Road, LP in the base bid amount of $185,292.16. The Additive Alternate 1, including right of way preparation, excavation, surface treatment, RCP pipe, barricades, etc., will be done by the developer. PRINCIPAL PLACE OF BUSINESS Austin Bridge and Road, LP Dallas, TX STAFF COST ESTIMATE The cost estimate for this project was $250,000. ESTIMATED SCHEDULE OF PROJECT This project is scheduled to begin in early June with an estimated completion date of August 15, 2003. FISCAL INFORMATION This project will be funded from project account 35009600.1360.40100. Agenda Information Sheet May 13, 2003 Page 2 Attachment 1: Tabulation Sheet 1-AlS-Bid 3014 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE LOOP 288 EAST TEMPORARY TRAFFIC DiVERSiON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 3014-LOOP 288 EAST TEMPORARY TRAFFIC DIVERSION AWARDED TO AUSTIN BRIDGE AND ROAD, LP iN THE AMOUNT OF $185,292.16). 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 3014 Austin Bridge and Road, LP $185,292.16 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. That upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3014 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 13, 2003 Engineering Jon Fortune, Public Safety & Transportation Operations SUBJECT Consider adoption of an Ordinance authorizing the City Manager, or his designee to execute a Real Estate Contract for the acquisition of approximately 3.0 acres being a tract conveyed to Frederick A. Beardsley and wife, Carol Ann Beardsley as recorded by Deed in Volume 1054, Page 889, of the Real Property Records of Demon County, Texas, said property being located in the G. Walker Survey, Abstract Number 417, Denton County Texas; authorizing the expenditure of funds therefore; and declaring an effective date. (Pecan Creek Water Reclamation Plato Future Expansion) BACKGROUND The City of Demon has been negotiating for the past year regarding the acquisition of the Beardsley property. The property consists of approximately 3.0 acres of land and a mobile home. It will be included as part of the buffer zone for the Pecan Creek Water Reclamation Plato. We have reached an equitable understanding and have come to terms with the owner regarding this acquisition for the total sum of $55,000.00. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Closing will occur prior to May 31, 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION Recent appraisals for similar types of property in the area have been indicating comparable value ranges. Funding for the acquisition come from available wastewater bond funds. ATTACHMENTS Location map Draft ordinance Real Estate Contract Survey Illustration Prepared By: Respectfully submitted: Pamela England Real Estate Specialist Charles Fiedler, Director Engineering Department ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND CAROL ANN BEARDSLEY FOR THE PURCHASE OF APPROXIMATELY 3.0 ACRES OF LAND BEING A TRACT CONVEYED TO FREDERICK A. BEARDSLEY AND WIFE CAROL ANN BEARDSLEY AS RECORDED BY DEED IN VOLUME 1054, PAGE 889, OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, SAID PROPERTY BEING LOCATED IN G. WALKER SURVEY, ABSTRACT NUMBER 417, DENTON COUNTY TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (PECAN CREEK WATER RECLAMATION PLANT FUTURE EXPANSION). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. The City Manager, or his designee, is hereby authorized to execute a Real Estate Agreement between the City of Denton and Carol Ann Beardsley in substantially the form of the Real Estate Contract attached hereto and made part of the ordinance for all purposes (the "Real Estate Contract"). SECTION 2. The City Manager or his designee is hereby authorized to make the expenditures set forth in the Real Estate Contract. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBER~~ORNEY BY: REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by Carol Ann Beardsley, (hereinafter referred to as "Seller") and CITY OF DENTON, TEXAS, a home rule municipality, of Denton, Denton County,' Texas, (hereinafter referred to as '~Purchaser"), upon the terms and conditions set forth herein. PURCHASE AND SALR Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for all that certain tract, lot or parcel of land containing approximately three acres described in the conveyance to Frederick A. Beardsley and wife, Carol Ann Beardsley by deed recorded in Volume 1054, Page 889 of the Deed Records of Denton County, Texas with all rights and appurtenances pertaining to the said property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way (all of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), together with any improvements, fixtures, and personal property including the mobile home that currently serves as sellers residence, situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth. PURCHASE PRICE Amount of Purchase Price. The total purchase price for the Property shall be the sum of Fifty Five Thousand Dollars and No Cents ($55,000.00) (the "Purchase Price"). Payment of Purchase Price. The full amount of the Purchase Price shall be payable in cash at the closing. PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived in whole or in part by Purchaser at or prior to the closing. 1. Preliminary Title Report. Within twenty (20) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a owner's policy commitment (the "Commitment") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser shall give Seller written notice on or before the expiration of ten (10) days after Purchaser receives the Commitment that the condition of title as set forth in the Commitment is or is not satisfactory. In the event Purchaser states the condition of title is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) days after receipt of written notice, this Agreement shall thereupon be null and void for all purposes; otherwise, this condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. 2. Survey. Purchaser may, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor acceptable to Purchaser. The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of- way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. Purchaser will have ten (10) days after receipt of the survey to review and approve the survey. In the event the survey is unacceptable, then Purchaser shall within the ten (10) day period, give Seller written notice of this fact. Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser, at its option may elect to terminate this Agreement (in which event this Agreement shall be null and void), grant Seller additional time to cure, or proceed to closing. Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey. PAGE 2 3. Seller's Compliance. Seller shall have performed, ob- served, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing. REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date: 1. There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, trespassers or other parties. 2. Except for the prior actions of Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment or suit, affecting title to the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any governmental authority. 3. Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof. 4. To the best of the seller's knowledge, there are no toxic or hazardous wastes or materials on or within the Property. Such toxic or hazardous wastes or materials include, but are not' limited to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended. CLOSING The closing shall be held at the office of Texas Title Company, 2215 S. Loop 288, Suite 320, Denton, Texas 76205 on or before June 30, 2003~ or at such title company, time, date, and place as Seller and Purchaser may mutually agree upon (which date is herein referred to as the "closing date"). PAGE 3 CLOSING REQUIREMENTS 1. Se~ler~s Requirements. At the closing Seller shall: A. Deliver to the City of Denton a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, assessments, and restrictions, except for the following: 1. General real estate taxes for the year of closing and subsequent years not yet due and payable; 2. Any exceptions approved by Purchaser pursuant to Purchaser's Obligations here- of; and 3. Any exceptions approved by Purchaser in writing. B. Deliver to Purchaser a Texas Owner's Policy of Title Insurance at Purchaser's sole expense, issued by Texas Title Company, Denton, Texas, (the "Title Company"}, or such title company as Seller and Purchaser may mutually agree upon, in Purchaser's favor in the full amount of the purchase price, insuring fee simple title for the City of Denton to the Property subject only to those title exceptions listed in Closin~ Requirements hereof, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Policy of Title Insurance, provided, however: 1. The boundary and survey exceptions shall be deleted if required by Purchaser and if so required, the costs associated with same shall be borne by Purchaser; 2. The exception as to restrictive cove- nants shall be endorsed "None of Record"; 3. The exception for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable"; PAGE 4 4. The exception as to liens encumbering the Property shall be endorsed "None of Record". C. Deliver to Purchaser possession of the Property on the day of closing. D. Deliver and convey to Purchaser free and clear title to the mobile home located on the property. 2. Purchaser's Requirements. Purchaser shall pay the consideration as referenced in the '~Purchase Price" section of this contract at Closing in immediately available funds. 3. ~losin~ Costs. Seller shall pay all taxes assessed by any tax collection authority through the date of Closing. Ail other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be paid by Purchaser, except for Seller's attorney fees if any. REAL ESTATE COMMISSION Seller and Purchaser represent and warrant to each other that neither has retained a broker for this transaction and that there are no broker or real estate fees due as a result of the consummation of this contract. BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property except Purchaser's default, Purchaser may either enforce specific performance of this Agreement or terminate this Agreement by written notice delivered to seller. BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in PURCHASER'S OBLIGATIONS having been satisfied and Purchaser being in default Seller may either enforce specific performance of this Agreement, or terminate this Agreement by written notice delivered to purchaser. PAGE 5 MI SCELLANEOUS 1. Assignment of Agreement. This Agreement may be assigned by Purchaser without the express written consent of Seller. 2. Survival of Covenants. Any of the representations, war- ranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. 3. Notice. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth below: Carol Ann Beardsley C/O Joyce Weger P.O. Box 271284 Flower Mound, Texas 75027 Paul H. Williamson Engineering & Capital Projects City Hall East 601 East Hickory Suite B Denton, Texas 76205 4. Texas Law to Apply. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas. 5. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement. 6. Legal Construction. In case any one or more of the pro- visions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said in- validity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 7. Prior Agreements Superseded. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. PAGE 6 8. Time of Essence. Time is of the essence in this Agreement. 9. Gender. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 10. Memorandum of Contract. Upon'request of either party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record. 11. Compl.~ance. In accordance with the requirements of the Texas Real Estate License Act, Purchaser is hereby advised that it should be furnished with or obtains a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection. 12. Time Limit. In the event a fully executed copy of this Agreement has not been returned to Purchaser within ten (10) days after Purchaser executes this Agreement and delivers same to Sel- ler, Purchaser shall have the right to terminate this Agreement upon written notice to Seller. 13. Effective Date. The term "Effective Date" means the latter of the dates on which this Contract is signed by either Sellers or Purchaser, as indicated by their signature below. If the last party to execute this Contract fails to complete the date of execution below that party's signature, the date the Title Company acknowledges receipt of a copy of this fully executed contract is the Effective Date. IN WITNESS WHEREOF, Seller and Purchaser have executed this contract as follows: SELLER: ~arol Ann Beardsley APPROVED AS TO FORM: CITY ATTORN. I~ . PURCHASER: BY: Michael A. Conduff City Manager 215 E. McKinney Denton, Texas 76201 Date: PAGE 7 ACKNOWLEDGEMENT STATE OF TEX~S COUNTY OF DENTON This instrument is acknowledged before me, on this day of , 2002 by Michael A. Conduff, City Manager, of the City of Denton, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by appropriate ordinance of the City Council of the City of Denton and that he executed the same as the act of the said City for purposes and consideration therein expressed, and in the capacity therein stated. Notary Public in and for the State of Texas STATE OF TEXAS COUNTY OF DENTON this ~day of Thi~ .instrument is acknowledged before me, on ~6~ , 2003 Carol Ann Beardsley. ~ta~-F~fi= in ~ ~-~-,_,--,-- the State of Texa~% QUIN~Y H. CHU~%EY Ii /I ~,~!~};* November 22, 2005 ~ Z]"~''~ :,.~ ...... : _. _ ~ ,., _ TITLE CO~Y ACCEPT~CE ~ AC~O~EDG~NT The Title Company acknowledges receipt of the fully executed Contract on day of , 2003. Name: Texas Title Company Address: 2215 S. Loop 288, Suite 320 Denton, Texas 76205 Telephone: 940-382-8251 By: Printed Name: Title: PAGE 8 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 13, 2003 Engineering Jon Fortune, Public Safety & Transportation Operations SUBJECT Consider adoption of an ordinance by the City of DeNon abandoning and vacating a portion of an easemem to the City of DeNon, Texas recorded in Volume 4397,page 1364 of the Real Property records of Denton County, Texas as it affects Lot 1, Block A of the Lissberger Addition; and providing an effective date. BACKGROUND At the time the Lissberger tract was platted, a separate easement was granted to the City of Denton to accommodate the water line installed around the back of the building. This water line serves the individual tenam meters and serves the fire protection system for the building. The owner of the building, A1 Lissberger, desires to lease a portion of his building for a restauram and a requiremem is that a grease trap be installed. The location of the existing water line has been defined in the field and is near the rear of the building in almost all locations, save the inner-ell corner of the building. The Texas Commission for Environmemal Quality (formerly T.N.R.C.C.) requires a minimum separation between potable water lines and sewer facilities. It is only in the area slated for abandonment that the minimum separation can be achieved. This triangular shaped area is considered excess easemem. The City has no currem use or future need of the proposed abandonmem tract. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION The Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE May 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION None ATTACHMENTS Location map Draft ordinance Prepared By: Paul Williamson Real Estate & Capital Support Manager Respectfully submitted: Charles Fiedler, Director Engineering Department Location Map [] n° Interest ~ l"=30ff Area of Interest S:\Our Documents\Ordinances\0Y, Lissberger Addition Easement Abandonment.doc ORDINANCE NO. AN ORDINANCE BY THE CITY OF DENTON ABANDONING AND VACATING A PORTION OF AN EASEMENT TO THE CITY OF DENTON, TEXAS RECORDED IN VOLUME 4397, PAGE 1364 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AS IT AFFECTS LOT 1, BLOCK A OF THE LISSBERGER ADDITION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton has received a request for the partial abandonment of a certain City of Denton easement (the "Easement") recorded in Volume 4397, Page 1364 of the Real Property Records of Denton County, Texas as it affects Lot 1, Block A of the Lissberger Addition, an addition to the City of Denton, said portion to be abandoned being more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Abandoned Easement Portion''); and WHEREAS, the City of Denton Engineering Department has reviewed the Abandoned Easement Portion and determined that it is excess easement and is not needed for future public purposes; and WHEREAS, the City Council hereby finds and determines that the Abandoned Easement Portion is not needed for public purposes and it is in the public interest to abandon the Abandoned Easement Portion and the City's interests therein to the underlying fee owner; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS: SECTION 1. The Abandoned Easement Portion is hereby vacated and permanently abandoned as an easement. All other portions of the Easement not abandoned by this ordinance shall remain in full force and effect, except to the extent of any previous abandonment. SECTION 2. The interests of the City of Denton in the Abandoned Easement Portion are hereby released and will revert to the underlying fee owners as provided by law. A certified copy of the ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS,'CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: BY: Page 2 EXHIBIT LEGAL DESCRIPTION Easement Abandonment Tract Part of Lot 1, Block A, Lissbcrger Ac~dition 405 Square Feet Being all that certain lot, tract or parcel of land situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, being part of Lot 1, BIock A, Lissberger Addition, an addition to the City of Denton according to the plat thereof recorded in Cabinet H, Page 196 of the Plat Records of Denton County, Texas, being part of that certain Easement to the City of Denton recorded in Volume 4397, Page 1364 of the Real Property Records of Denton County, Texas, and being more particularly described as follows: COMMENCING at the west comer of said Lissbergcr Addition; THENCE N 42°55'48" E, 20.03 feet; THENCE S 49057'00'' E, 34.26 feet; THENCE N 30°55'05'' E, 42.01 feet, to the beginning ora curve to the right; THENCE Northeasterly, with the arc of said curve having a radius of 250.00 feet, a central angle of 12000'46'', whose chord'bears N 36°55'26'' E, 52.32 feet, an arc length of 52.42 feet; THENCE N 42055'48.' E, 118.75 feet; THENCE S 46057'42'' E, 95.44 feet; THENCE S 43°02'18'' W, 3.00 feet, to the POINT OF BEGINNING; THENCE S 31 °26'15" E, 56.04 feet; THENCE N 46°57'42" W, 54.00 feet; THENCE N 43 °02' 18" E, t 5.00 feet, to the POINT OF BEGINNING and containing approximately 405 square feet of land. k~mn:03085ea.wpd /~X~ ~ 8' U.E. ~ / / Proposed ~ X X~Denton, Vol. 4397, ~ / / (Approx. P.O.O. ~ ¢ 3-- Liss~rger Add~ x x x H/196 x ~'~ ~tOHBER DIRECTION )ISTANCE L~ N 42'55'48° E 80,03' L2 S 49'57'00* E 34.26' L3 N 30'55'05' E 42,0i' L4 N 42°55'48, ~ 1t8.75' L5 S 46'57'48' E 95.44' L6 ~ 43~08'18' ~ 3.00' L7 S 3~'8~'15' E 56.04' L8 N 46*57'48' ~ L9 N 43'08'18' E ~5.00' NUMBER DELTA R -- L T Cf) ]C~ .... pa'00'4S' la~0.o0 pa.42 .[a,q.,~? IN 36'55'2s' [ EXHIBIT "B" LC for Easement Abandonment Lot 1, Block A Lissberger Addn. in the GIDEON WALKER SURVEY, ABSTRACT NO. 1330 CITY OF DENTON DENTON COUNTY, TEXAS G & A Consultants, Inc. SITE PIANNING * PLA'I'r[NG CIVIL IgNGIN~RING Phone (972) 436.-9712 * F~ (972) 436-9'/15 P.O.B, ox1398 * Lew/svil(le, Tex~75067 D~A~'N ]~¥; B.S. DATE], 04/;:'3/03 SCALF, r=~O' jo~. ~o. 03085 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 13, 2003 Engineering Jon Fortune, Public Safety & Transportation Operations SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execme an Imerlocal Agreemem with Texas Woman's University to enable an exchange of easemems and services to accommodate mility relocation and easemems; and declaring an effective date. BACKGROUND Texas Woman's University has requested that the City of DeNon abandon a portion of the existing mility easemem upon relocation to the newly dedicated exchange easemem area (Austin Street Sanitary Sewer). A portion of the abandoned line will be used by TWU as a private service line. The project scope also includes the placemem of 2 manholes. 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 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION None ATTACHMENTS > Location map > Draft ordinance Prepared By: Denise M. Perez Technical Assistant Real Estate & Capital Support Division Respectfully submitted: Charles Fiedler, Director Engineering Department UNIVERSITY Easement to be AbarMened Proposed Ease~_~ no Area of Interest ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CiTY MANAGER OR HIS DESIGNEE TO EXECUTE AN 1NTERLOCAL AGREEMENT WITH TEXAS WOMAN'S UNIVERSITY TO ENABLE AN EXCHANGE OF EASEMENTS AND SERVICES TO ACCOMMODATE UTILITY RELOCATIONS AND EASEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton and Texas Woman's University desire to enter into an Interlocal Agreement for the exchange of land for use as easements, pursuant to §791.028 of the Govern_ment Code, §272.001 of the Texas Local Government Code, and §2-127 of the Denton code of ordinances; NOW THEREFORE, TIlE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: Section 1. The City Manager or his designee is hereby authorized to execute on behalf of the City of Denton an Interlocal Agreement with Texas Woman's. University to enable an exchange of easements and services to accommodate utility relocations and easements in substantially the same form as of the Interlocal Agreement attached hereto and made a part hereof by reference. Section 2. Th/s ordhnance shall become effective immediately upon/ts passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: INTERLOCAL AGREEMENT THIS AGREEMENT is entered into effective as of the date set forth below by and between the City of Denton, Texas, a home rule municipal corporation (the "City") and Texas Woman's University ("TWU"). WHEREAS, the City and TWU desire to enter into an Interlocal Agreement to provide for City of Denton utility facility relocations and easements, pursuant to §791.028 of the Texas Government Code; and WHEREAS, TWU has previously granted to the City a utility easement dated November 16, 1938, and recorded in the Deed Records of Denton County under Volume 276, Page 524 (the "Existing Easement"); and WHEREAS, TWU has requested that it exchange a new City of Denton utility easement as more particularly desent~ed in Exhl~bits "A-I" and "B-I" and temporary construction easement as more particularly described in Exba'bits "A-2" and "B-I' attached hereto and made a part hereof by reference (the "Replacement Easements") to replace the Existing Easement in order to reroute the existing sanitary sewer line around TWU's new Chiller Plant FaeiliBr, and WHEREAS, the Project also necessitates the City's acquisition of additional City of Denton utility easements as more particularly described in Exhibits "A" and "B" ("Exchange Easement 1") attached hereto and made a part hereof by reference (the Replacement Easements, Exchange Easement 1, and Temporary Construction Easement are collectively called the ''Exchange Easements"); and WHEREAS, the Project and this agreement will benefit TWU, the City and its citizens and is in the public interest; and WHEREAS, the consideration for the promises contained herein represent fair market value for the property interests being granted or abandoned and fair and reasonable compensation for the services being performed under this agreement; and WHEREAS, all monies expended under this agreement are from current revenues of the paying party; NOW, THEREFORE, for and in consideration of the mutual covenants contained herein the City and TWU hereby agree as follows: 1. On or before 90 days after the date of this Agreement TWU shall deriver to the City the fully executed non-exclusive Exchange Easements in substantially the same form as Attachment I attached hereto and made a part hereof by reference. City shall deliver to TWIJ a certified copy of a City ordinance abandoning the Existing Easement (the "Abandonment Ordinance") no later than 90 days after completion of the Project. 2. As addkional consideration, and as a part of the Project; The City shall provide two 4 foot manholes as shown on plan sheets 14C & 14D (Extu'bits "C" & "D", respectively) to tie into that portion of the sanitary sewer line to be abandoned and which will become a private service line serving TWU facilities and to be maintained by TWU in that regard. The City shall cause the Project contractor after installation of the sewer facilities to leave the earthwork in accordance with City specifications. The City will restore all impacted areas in a workmanlike manner to a condition equal to or better than that existing prior to construction. The City shall allow TWU the surface use of all easemem area excluding the construction, erection or placement of any buildings, signs or other permanent structures, or portions thereof; in, on, or over the permanent easements. TWU shall have the right to make use of the easements for any purpose that does not interfere with the City's rights in the easements for the purposes granted, subject to the restrictions contained herein. TWU's right to use the easement shall specifically include the right to pave the easement areas for vehicular ingress, egress, and parking. 3. The City Council of the City and the Board of Regents of TWU have duly authorized this Agreement and the execution of same by the officers or agents who have signed below on their behalf. the In Wimess Whereof; this Agreement has been executed by the parties m be effective this , day of ,2003. CITY OF DENTON By: MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: CflDocumenis and Sc'~tingsklmper~ Settings\Temp\TWlJ l[nterlocal 2.doc Page 2 APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: TEXAS WOMAN'S UNIVERSITY APPROVED AS TO FORM BY: DR. BRENDA FLOYD, VICE PRESIDENT FINANCE AND ADMINISTRATION BY: C:'~Documents and Settlngs~dmperezq-ocal SeV, lngs\Temp\TWU Inte~'local 2.doc Page 3 ATTACHMENT 1 EASEMENT THE STATE OF TEXAS, COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS: THAT Texas Woman's University (Grantors) of Denton County, Texas, in consideration of the sum of ONE DOLLAR and NO CENTS ($1.00) and OTHER GOOD AND VALUABLE CONSIDERATION in hand paid by the City of Denton, Texas, (Grantee), receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the City of Denton, Texas, the free and uninterrupted use, liberty and privilege of the passage in, along, upon and across the following described property, owned by Grantors and situated in Denton County, Texas, in the B.B.B. & C.R.R. Survey, Abstract No. 185. SEE ATTACHED EXHIBITS ~A",~'A-1'', "B", & ~B-i" FOR EASEMENT DESCRIPTIONS & ILLUSTRATIONS SEE ATTACHED EXHIBIT "A-2" & ~B-I" FOR TEMPORARY CONSTRUCTION EASEMENT DESCRIPTION & ILLUSTRATION And it is further agreed that the City of Denton, Texas in consideration of the benefits above set out, will remove from the property above described, such fences, buildings and other obstructions as may now be found upon said property. For the purpose of constructing, reconstructing, installing, repairing, and perpetually maintaining city utilities, in, along, upon and across said premises, with the right and privilege at all times of the grantee herein, his or its agents, employees, workmen and representatives having ingress, egress, and regress in, along upon 'and across said premises for the purpose of making additions to, improvements on and repairs to said facilities or any part thereof. Upon conclusion of the initial construction, the temporary construction easement shall terminate. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premises above described. Witness my hand, this the Texas Woman's University day of , 2003. Dr. Brenda Floyd Vice President Finance &Administration ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on this the __ · 2003 by Dr. Brenda Floyd. day of Notary Public, in and for the State of Texas My Commission Expires Accepted this the__day of City of Denton, Texas (Resolution No. 91-073). ,2003 for the BY: Paul Williamson ~]/1N]A¥ ll]g .I I DENTON EXHIBIT '~" LEGAL DESCR/PTIO/V for an Uti/ity Easement out of the B.B.O. & C.R.B. SURVEYA-f85 Denton, Denton County, Texas Being ail that certain tract, parcel, or lot of/and out of the B.B.B. & C.R.R. $~/RVEY A-f85, in the £/ty of Denton, Denton County, Texas described by deeds recorded in Volume Bi, Page 429, Volume/82, Page 204, and Volume 2iD, Page 5/3, Deed Becords, Denton County, Texas and more particularly described as fo/lows: BEG/AI~//NG at a found TXDOT monument in the south right, of-way//ne of IJnivers/ty Orive, said right, of. way i/ne described in Volume 4333, Page 3072, Deed Becords, Denton County, Texas; T~/E~/CE,: /1/ 89048'E, along said south rightof-way //ne, £2.0 feet to a point for corner; T~/£NCE.: leaving said south right-of, way line, S 00°12' E, 21.0 feet to a point for corner; THENCE: S B9°§0' W, 252.3 feet to an angle point for corner; THE/VCE: S §9°OB'W, 77.3 feet to a point for corner in the east i/ne of an electric easement as recorded in County File # 02.BO/2BB40, Denton County, Texas T/I£1~/CE; N 00°52'W, along said east//ne for a distance of //.5 feet to a point for corner, said point a/so being the easterly most northeast corner of said electric easement; Tt1£,~/C£' leaving said east i/ne, N §9°OB'E, 86.0 feet to a point for corner in the said south right-of-way i/ne of University Drive; T~/ENCE: Al 89"50' E along said south rightof-way i/no, / ~JS. 0 feet to a found TXDOT right-of, way monumenC T~/Etl/C£: N 00~35'W, 4.9 feet to to the PO/iVT OF B£G/NN/~IG and £OAITA/iWNG 0./20 acres of land more or less as surveyed by john ual/jr, rp/s # 19717 during the month of November 2002. / /~"1 See attached Survey S/~etch jnj. L-O041; "Dedicated to Quality Service" www. cityofdenton.cora DENTON EXHIBIT 'A. f ' lEGAl DEE£RIPTIOi~ for an Sanitary Sewer Easement out of tl)e E.E.O. & C.R.R. SURVEYA. I85 Denton, Denton ~ounty, Texas Being ail that certain tract, parcel, or strip of/and not of the J~.8.B. & £.[I.R. SO/IVEY A-18§, in the City of Benton, Benton £oonty, Texas described by deeds recorded in Volume Bl, Page 429, Volume IR2, Page 204, a~d Volume 21~ Page 513, Bead Records, Benton County, Texas and more pa~/c~/ar/y described as follows: JEglEEIN6 at e po/fit for corner iff a curve of the flo~h right of way line of Oakland Avenue, from which a found iron bolt for the center/ina point, of-curvature of sa/d street bears, S 88°13' ~ i ~ 4.5 feeC TEENCE' leaving said north right-of, way I/ne, N 42003, ~ i83. l feet to afl angle po/nC TEEECE' N 00028, ~ 194.1 feet to afl angle po/fit; THENCe' · 17~D9' E, 9E.8 feet to an angle point; THEgnS' · 00~45'~ 332.0 feet to an anp/e point; THEE~E' · 05~08' ~ 302.5 feet t~ afl angle poi~C ~HEg~E: · 23002, ~ i EL ~ feet to a poi~t for com~ iff t~e south//fie of an existing O. 120 ac, utility easemenC THEgnS: · 89050, ~ along said sout~ line of a utility easemeet, ~0.8 feet to a p~iflt for comer; THEnCe' leaving said sout~ l/ne, S 23002, ~ 162.9 feet to an onE/epa/flU TEEgCE' S 05008' ~ 300.5 feet to afl a~gle po/nC TEE~CE' S 17°89, W. 9E. 7 feet to an a,~fe point; THENCE: S 0~°28'~ 198.4 feet to an a~/e po/nC THENCE' S 42°08'~ 183.1 feet W a point for comer/fl the flodh I/~ of aforesa/d Oa~lafld Aveflfle, sa/ff point being in a curve W the left, havifl~ a delta of El °42' a~d a radius of 352.7 feeC and whose center bears S 21 °33' ~' ~EEEC~' along said curve to t~e left ~nff wit~ said ~o~ dght.ofiway line for an afc ~istance of 10.7 feet t~ t~e POIg~ OF 8EGlgE/EG ~ &O~T~lElg6 8.292 acres ~f land more or less as surveyed ~y jo~n nail jr. rpl~ ~1978 , of Pecem~er 2~2; See attached Survey Sketch jn~H.O009; S:\Survey\Forms\L-0054TWU SS easement.doc "Dedicated to Quality Service" www. cityofdenton.com ~' CnNSTRUCTIaN J~ £AS£HENT ~ J ~'1 WOMAN'S UNIVERSITY V. BI, P. 429: V. 182, P~ 204; V. 236, P. 5J3; D.R.D.C.T. '~ O~/~nd 'Avenue/o Clni"vcmily Drive DENTON EXAI/DIT 'A-~' ~£GA~ D£$£R/PT/OAI for an Temporary Construction Easement oat of the Denton, Oenton Canary. Texas Being ell thet certain tract, parcet, er strip of/and eot M the B,B,B, & £.R.t~. $//I~VEYAdS§, in the City of§eaten, Denton Caenty, Texas described by deeds recorded ia Vetame 8t, Page 429, B£~IAININO at a point for corner i~ a corec of the north right of way line of OaJland Aeenno, from which a found iron bott/or tho eentertine peint-of, cufvetere of said street bears, 1/4.§feet; TH£~£E: leaving said ne/th right, of-way line, Al 42°08' E, 783. [ feet to an eagle paint; T#£AI£E: Al §8°28' W, 194. ! feet to en an#la point/ TAI£AIC£' Ill 17°09' E,, ~O.~ feot to nn eng/e point; TH£AICE; 1¢ 00°45' E, 332.0 feet to an eagle po/at; TH£/VC£' Al §5°08' W, 302.~ feet to an angle paint; TAiEAIEE: AI23°02' E, 16/. t feet to a paintfor corner in the south tine of an ex/sting §./20 ac. utility easement; T/t£AI£E: IV 89 °§~'£, along said sooth line of a utility easement, 70. 9 feet to a point for T#£N££* teac/n# said south//ne, $ 23"02' W, /82.9 feet tn an angle point; TH£~/C~; $ g5°O~' £, 53.0 feet to an anglo point! TAlEAlC£: A123°O2'E, 108.5 feet to an angte po/nt; TAI£AI£E: Al 8~050' E, /03.5 feet tea point for T#£~ICE: IV LIL?"/ ~' W, 2B.B feet to a point for comer ia the south tine of said exist/n# 0, ~20 ac. utility easement THEAtrE: $ 89°~B' W, along said south//ne, 140.7 feet to an eagle point/ TAiEAi££: $ 59°~B' W, 3B.5 feet to an angle paint/ THEAiC£* lanvin# said south line, $ 23002, W, 192.7 feet to en angle po/nC TAI£Ai££' $ 05°/~'£, 258.9 fmt to an angle point; T/tEA/CE: $ 0£°45, W, 322.2 feet to an an~le peinC TAIEJgC~: $ ~7~0£' W, £7,4 feet to an an#lope/et; TttEAI££; $ §0~28' E, 182.3 feet to an angle point; TAIEAI££: S 42~08' ~, 188,7 feet to a point for corner in the said north r~ht of way tine of Oak/and ~veaue, said point being in a ~urve to the right, having e delta of 08°5/' end a radius of 3~2.7 feet, and whose center bears $13051, W; THEN££: along said curve to the left end with said no/th right, of way fine for an ere distance of 5~.0 feet to the POINT OF ~ f'r~/~f tand more or less as sar~eyed by john nail#. [p/~ # t970 alu/Cng the month of ~ecember 2002; See attached Survey $~etch /a~H-O009; S:\Survey\Forms\L-OO$5_TWU west coast easement.doe "D¢~i£a~d ~o ~]¢b~ www.cityofdenton.com X mmm I II III III ~ ~. III ' 8 '~ ~ °~ ~ ~ ~ / ~g~6 ViS ,,, i~ ~a ~ hU ~d~' ~ '~ o/:,,-~,8 . / ~ ft, , IM / ~ ~: ~ ',', ii ~ I ~ ..... ~L'gv9 X AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 13, 2003 Engineering Jon Fortune, Public Safety & Transportation Operations SUBJECT Consider adoption of an ordinance by the City of DeNon abandoning and vacating a portion of a drainage & mility easemem to the City of DeNon, Texas recorded by Clerk's File No. 94-R0077739 of the Real Property Records of Denton County, Texas as it affects Lot 1R, Block 1 of the Denton Regional Medical Cemer Addition; and providing an effective date. BACKGROUND The currem property owner, Epic Developmem, has requested that the City of DeNon abandon a portion of the existing drainage & mility easemem. The property developer will be relocating all public facilities curremly within the easemem area to be abandoned. 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 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION None ATTACHMENTS > Location map > Draft ordinance Prepared By: Denise M. Perez Technical Assistant Real Estate & Capital Support Division Respectfully submitted: Charles Fiedler, Director Engineering Department Location Map Easement to be Abandoned ~ Denton Regional Medical Cent_.er. t N 1 ~=300~ Area of Interest S:\Our Documents\Ordinances\03kDenton Regional Medicat Center Addition Easement Abandonment.doc ORDINANCE NO. AN ORDINANCE BY THE CITY OF DENTON ABANDONING AND VACATING A PORTION OF A DRAINAGE & UTILITY EASEMENT TO THE CITY OF DENTON, TEXAS RECORDED CLERK'S FILE NO. 94-R0077739 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AS IT AFFECTS LOT 1R, BLOCK 1 OF THE DENTON REGIONAL MEDICAL CENTER ADDITION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton has received a request for the partial abandonment of a certain City of Denton drainage & utility easement (the "Easement") recorded in Clerk's File No. 94-R0077739 of the Real Property Records of Denton County, Texas as it affects Lot 1R, Block 1 of the Denton Regional Medical Center Addition, an addition to the City of Denton, said portion to be abandoned being more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Abandoned Easement Portion"); and WHEREAS, the City of Denton Engineering Department has reviewed the Abandoned Easement Portion and determined that it is excess easement and is not needed for future public purposes; and WHEREAS, the City Council hereby finds and determ/nes that the Abandoned Easement Portion is not needed for public purposes and it is in the public interest to abandon the Abandoned Easement Portion and the City's interests therein to the underlying fee owner; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS: .SECTION 1. The Abandoned Easement Portion is hereby vacated and permanently abandoned as an easement. All other portions of the Easement not abandoned by this ordinance shall remain in full force and effect, except to the extent of any previous abandonment. SECTJON 2. The interests of the City of Denton in the Abandoned Easement Portion are hereby released and will revert to the underlying fee owners as provided by law. A certified copy of the ordinance may be recorded in the Real Property Records of Denton County, Texas' to evidence this abandonment. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: Page 2 LEGAL DESCRIPTION DRAINAGE & UTILITY EASEMENT ABANDONMENT EXHIBIT "A" BEING 5,529 square feet of land located in the DANIEL LAMBERT SURVEY, Abstract No. 784, Denton County, Texas, being a portion of Lot 1R, Block 1, Denton Regional Medical Center Addition, an addition to the City of Denton, Texas as shown by the plat recorded in Cabinet "P", Page 37 of the Plat Records of Denton County, Texas and being a portion of that certain 80' Drainage and Utility Easement recorded as Instrument No. 94-R0077739 of the Real Property Records of Denton County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a point lying in the Southwest boundary line of said 80' Drainage and Utility Easement, said point lying S 33°32'58"E, 91.16 feet from the Northwest corner of said Lot 1R, being the Northeast corner of Lot 4-R, Block 2, Denton Regional Medical Center Addition, an addition to the City of Denton, Texas as shown by the plat recorded in Cabinet "R", Page 56 of the Plat Records of Denton County, Texas and lying in the South right-of-way line of Colorado Boulevard (An 80-foot right-of-way); THENCE S 67°34'04"E, 84.69 feet to a point at the beginning of a curve to the Right; THENCE SOUTHEASTERLY, 79.94 feet along said curve to the Right, having a radius of 92.00 feet, a central angle of 49°46'59" and a chord bearing S 42°40'34"E, 77.45 feet to a point at the end of said curve to the Right; THENCE S 22°25'56"W, 48.83 feet to a point lying in the South boundary of said 80' Drainage and Utility Easement; THENCE along the said South boundary line of said 80' Drainage and Utility Easement as follows: N 39°30'01"W, 140.72 feet to a point at the beginning of a curve to the Left; NORTHWESTERLY, 34.34 feet along said curve to the Left, having a radius of 560.00 feet, a central angle of 03030'47'' and a chord bearing N 41°15'24"W, 34.33 feet to the PLACE OF BEGINNING, containing 5,529 square feet of land. PAGE 1 OF 2 W & A No. 92039 March 20, 2003 / I / ~1~ III II AGENDA INFORMATION SHEET AGENDA DATE: May 13, 2003 DEPARTMENT: ACM: Engineering Jon Fortune, Public Safety & Transportation Operations SUBJECT Consider adoption of an ordinance declaring a public necessity exists and finding that public welfare and convenience requires the taking and acquiring of an approximate 0.08 acre tract or parcel of land in fee simple for street, mility and right-of-way purposes, such title to be in the name of the City of DeNon and said property being located in the Nathaniel Britton Survey, Abstract Number 51 in Denton County, Texas and being out of that certain tract or parcel of land in a deed to Wayne S. Ryan and Shelton Ryan recorded in Volume 2522, Page 898 of the Real Property Records of Demon County, Texas; authorizing the City Manager, or his designee, to make an offer to purchase the property for its just compensation and if such offer is refused, authorizing the City Attorney, or his designee, to institute the necessary proceedings in condemnation to acquire the property for street, mility and right- of-way purposes; and declaring an effective date. BACKGROUND The proposed developmem of the Thistle Hill Estates, Phase 2, residemial subdivision is conditioned upon the City requiremem of the connection of Creekdale Drive, thus linking it to the Ryan Ranch subdivision. Creekdale Drive is designated as a collector on the DeNon Mobility Plan for Roadways. The developers have been imeracting with Mrs. Ryan in pursuit of acquiring the necessary right-of- way to build the Creekdale Drive connection. After their negotiations with her were unsuccessful they requested that the City initiate condemnation proceedings to acquire the necessary right-of-way tract. I contacted Mrs. Ryan to get a complete understanding of her position in regard to the right-of-way request and negotiations by the developer. Our role, early on in these matters, is to attempt to facilitate dialogue between the parties and actively seek an equitable solution, prior to any formal action on the part of the City. Mrs. Ryan indicated that she has no imerest in selling any part of her property and would oppose any action to acquire it. We had a few extended conversations regarding the philosophy behind the use of eminent domain by governmental entities. I understand and respect her position to oppose an arm's length private sale or a governmental taking of the right-of-way tract but it is my belief that there is a greater good to be served by the acquisition. I indicated to her that an independem real estate appraisal would be performed to determine the value of the proposed right-of-way tract and to quamify any monetary damages there may be to her remaining property caused by the severance. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION It is the typical City staff policy to require land developers to procure any off-site street right-of-ways or easements necessitated by their development on their own. There are instances in which the development of a particular site generates a regional need to insure the public health, safety and welfare beyond the limits of the proposed development. It is staff's opinion that this is one of those situations. We believe that there is an overarching public benefit of having the Creekdale Drive connection that eclipses Mrs. Ryan's private property rights in the 0.08-acre tract. The enhancement of the area resident's vehicular and pedestrian mobility in conjunction with both emergency services (Fire, Police, and Ambulance) and non-emergency services (Solid Waste, U.S. Mail, Link, School Buses, etc.) supports the public need for the connection. A longer-term benefit will be that with the extension of sanitary sewer facilities westward, elimination of the force main at Wayne S. Ryan Elementary School will become more of a possibility. Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Fall 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION The developer, Denton Thistle Hill Partners L.P., shall pay all acquisition costs such as attorney fees, appraisal fees, court costs and the cost of the award. The developer's commitment to bear the condemnation costs is to be considered on the same Agenda as this item, in the form a contract. ATTACHMENTS Location map Draft ordinance Prepared By: Paul Williamson Real Estate & Capital Support Manager Respectfully submitted: Charles Fiedler, Director Engineering Department CREEKDALE SITE MAP Thistle Hill Phase II Legend ~ Collector ~ ~ Secondary Majo~ A~edal ~ Area of inte rest S:\Our Docurnents\Ordinances\03\Creekdale Drive Condemnation Ordinance-Final .doc ORDINANCE NO. AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.08 ACRE TRACT OR PARCEL OF LAND IN FEE SIMPLE FOR STREET, UTILITY AND RIGHT-OF-WAY PURPOSES, SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY BEING LOCATED IN THE NATHANIEL BRITTON SURVEY ABSTRACT NUMBER 51 IN DENTON COUNTY, TEXAS AND BEING OUT OF THAT CERTAIN TRACT OR PARCEL OF LAND IN A DEED TO WAYNE S. RYAN AND SHELTON RYAN RECORDED IN VOLUME 2522, PAGE 898 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS JUST COMPENSATION AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION TO ACQUIRE THE PROPERTY FOR STREET, UTILITY AND RIGHT-OF-WAY PURPOSES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfare and convenience hereby require the acquisition of fee simple title for street, utility and right-of- way purposes the real property described herein below, with such fee simple title vesting in the City of Denton; and WHEREAS, the hereinafter described property is believed to be owned by Wayne S. Ryan and/or Melbagene Ryan ("Owner"); 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. Public necessity exists and public welfare and convenience require the acquisition of fee simple title, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.08 acre located in Denton County, Texas, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Property"). The Property is being acquired for street, utility and right-of-way purposes. SECTION3. The City Council fmds that $2,614.00 (the "Co ' " mpensation ) is just compensation for the Property including damages to the remainder, if any, said stun being based on an independent appraisal obtained by the City. The City Manager or his designee is hereby authorized and directed to make an offer for the Property to the Owner of the Property in the amount of the Compensation. SECTION 4. In the event the offer as described in Section 2 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title in the Property for the purposes described in Section 2 above, with such fee simple title vesting in the City of Denton. Such acquisition or condemnation of the Property may contain a reservation of off, gas, and mineral interests ("Mineral Interests"), without the right to use the surface of the Property and with such Mineral Interests being subordinate to the use of the Property for street, utility and right-of-way purposes. ,SECTION 5. If it should be subsequently determined that additional parties other than those named herein have an interest in the Property, then in that event, the City Attorney or his designee is authorized and directed to join said parties as' defendants in said condemnation. .SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: Page 2 S:~r ]~c nm e~n~.~Ot~anc e..~o3\C~eekd ale Dtiw ~demt~lion C)rd~naoc~-l~al .d~ Description 0.08 Acre All that certain tract or parcel of land situated in Nathaniel Britton Survey, Abstract Number 51,.Denton County, Texas, and being a part of a called 66.504. acre tract of land described in the partition deed recorded in Volume 2522, Page 898, Real Property Records of Denton County, Texas, and being more particularly described as follows: Beginning at o 2" pipe found at the South Southeast corner of said 65.-504. acre tract and in Creekd~:le Drive; Thence North 89 Degrees 17 Minutes 03 Seconds West with the South line of said 65.504 acre tract, a distance of 80.20 feet to a 1/2" iron rod found at the Southwest corner of said 65.504- acre tract and at the Southeast corner of a called 31.51 acre tract of land described in o deed to Denton Thistle Hitl Partners, L.P. os recorded in Vorume 5196, Page 38'18, Real Property Records of Denton County, Texas; Thence North ¢/':ith the West line of said 65.504- acre tract and with the East line of said 31.51 acre tract, o distance of 4-5.05 feet to o 1/2" copped iron rod set for the Northwest corner of the herein described tract; Thence South 87 Degrees 30 Minutes 30 Seconds East, a distance of 79.85 feet to a 1/2" copped iron rod set for corner at the Southwest corner of Lot 37, Block J of Ryan Ranch Phase Il, an addition to the City' of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet T, Page 535, Plat Records of Denton County, Texas and in the East line of said 65.504- acre tract and also in the North Right-of-Way line of said Creekdate Drive; Thence South O0 Degrees 35 Minutes 59 Seconds East' with the said'East line, a distance of 4-2.58 feet to the POINT OF BEGINNING and containing 0.08 acre of land. This Survey sketch represents the results of an on-the-ground survey made under my direction and supervision on 01-10-03. There are no visible or apparent intrusion, protrusions or easements except as shown hereon. J.E. THOMPSON II R.P,L.S. No 4857 Date ~I//ANCE AREA P.O. BOX §07 TX 76249 482-6723 NUMBER: 030015 RAFN I~Y: S.P.A. BY: $.E. THOMPSON II A coiled $5,50¢ acre tract of It:nd to Wayne S. Ryon AND Shelton Rycn Volume 2522, Page 898, RJ=.R./D.C,T. .~1 Britton Survey, Abstract of Denton, Denton County, .___.~.S 87'30'30"£ 79,83' Proposed 0.08 Acre Creekdale Drive ~1 21 s.w Car of ss"" '~' B ' ' . .r.. uor. o C~ 5.504 Ac. Tr. 65.50,~ Ac. Tr,~ 1/2 IRF~ (N 89 17 03 W) .80,2,,0' (8o, o~ A caged Tract I of land described in a deed to Calvert' Volume 3318. Page 908, R.P.R,/D.C.?. LEGEND B.bl, = BENCHMARK FF = FINISHEO ¢LOOR NG *, NAi!JRAL GROUNO BER - BURIE0 ~C~IC IRS/CAP - ~/2' IRON ROD SET W/CAP FOP = ~NCE CORNER POST P,L. = PROPEE~ LINE S.8. = SET BACK UNE S.Y.S,B. - SIDE Y~O SET DACK LINE B,L, = BUILDINO P.U.E, = P~BUC U~U~ EASEM~NT O.E. - D~AJNAOE CO~. ESOT. - CO~UNrOA~ON ~S~T E~ ~ ~O~10 RISER ~AN$ - ~C~lC ~ANSFORMER PP - PO~R PO~ ~ = U~T R.O.W. - R~GHT OF WAY P.O.B. - POfN~ OF P.O,C, = POINT OF COMMENC3NG '-OHU-- ~ O~E-~EAD --CAW-- - CA~L¢ ~ LIN[ --T-- - ~HONE UNE - '- PiPE & CABLE FENCE ) - P~T OR DEED CA~ M - CON~OLUNG MONUMENT 1" = 30' P.O. BOX 507 KtRUM, TX 76249 (940)482-6723 'I~BER: 0300: BY: S.P.A. Lot 4, Block J Rycn Ranch Phase Cabinet T, Page .333, P.R./D.C.T. !umber 51 Texas Lot 37, BIock J ~ , Ryan Ranch Phase Ii \ ] Cabinet T, Page 333, P.R./D.C.T. ~ I , I 2" Pipe Fnd. Creekdale Drive (60' R.o.w.) Per Rycn R(:nch Phcse I AGENDA INFORMATION SHEET AGENDA DATE: May 13, 2003 DEPARTMENT: Engineering ACM: Jon Fortune, Public Safety & Transportation Operations SUBJECT Consider adoption of an ordinance of the City of DeNon, Texas approving an agreemem between the City of Denton and Denton Thistle Hill Partners, L.P. for the acquisition by purchase or condemnation of an approximate 0.08 acre tract or parcel of land in fee simple for street, mility and right-of-way purposes, such title to be in the name of the City of DeNon and said property being located in the Nathaniel Britton Survey, Abstract Number 51 in Denton County, Texas and being out of that certain tract or parcel of land in a deed to Wayne S. Ryan and Shelton Ryan recorded in Volume 2522, Page 898 of the Real Property Records of Demon County, Texas; and providing an effective date. BACKGROUND The proposed developmem of the Thistle Hill Estates, Phase 2, residemial subdivision is conditioned upon the City requiremem of the connection of Creekdale Drive, thus linking it to the Ryan Ranch subdivision. Creekdale Drive is designated as a collector on the DeNon Mobility Plan for Roadways. The developers have been imeracting with Mrs. Ryan in pursuit of acquiring the necessary right-of- way to build the Creekdale Drive connection. After their negotiations with her were unsuccessful they requested that the City initiate condemnation proceedings to acquire the necessary right-of-way tract. I contacted Mrs. Ryan to get a complete understanding of her position in regard to the right-of-way request and negotiations by the developer. Our role, early on in these matters, is to attempt to facilitate dialogue between the parties and actively seek an equitable solution, prior to any formal action on the part of the City. Mrs. Ryan indicated that she has no imerest in selling any part of her property and would oppose any action to acquire it. We had a few extended conversations regarding the philosophy behind the use of eminent domain by governmental entities. I understand and respect her position to oppose an arm's length private sale or a governmental taking of the right-of-way tract but it is my belief that there is a greater good to be served by the acquisition. I indicated to her that an independem real estate appraisal would be performed to determine the value of the proposed right-of-way tract and to quamify any monetary damages there may be to her remaining property caused by the severance. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION It is the typical City staff policy to require land developers to procure any off-site street right-of-ways or easements necessitated by their development on their own. There are instances in which the development of a particular site generates a regional need to insure the public health, safety and welfare beyond the limits of the proposed development. It is staff's opinion that this is one of those situations. We believe that there is an overarching public benefit of having the Creekdale Drive connection that eclipses Mrs. Ryan's private property rights in the 0.08-acre tract. The enhancement of the area resident's vehicular and pedestrian mobility in conjunction with both emergency services (Fire, Police, and Ambulance) and non-emergency services (Solid Waste, U.S. Mail, Link, School Buses, etc.) supports the public need for the connection. A longer-term benefit will be that with the extension of sanitary sewer facilities westward, elimination of the force main at Wayne S. Ryan Elementary School will become more of a possibility. The agreement will bind the developer to cover the costs of the right-of-way acquisition. The Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Fall 2003 PRIOR ACTION/REVIEW None FISCAL INFORMATION The developer, Denton Thistle Hill Partners L.P., shall pay all acquisition costs such as attorney fees, appraisal fees, court costs and the cost of the award. ATTACHMENTS Location map Draft ordinance Agreement Prepared By: Paul Williamson Real Estate & Capital Support Manager Respectfully submitted: Charles Fiedler, Director Engineering Department CREEKDALE SITE MAP Thistle Hill Phase II Legend ~ Collector ~ ~ Secondary Majo~ A~edal ~ Area of inte rest S:\O~ Documents\Ordinances\03\Creekdale Drive Real Estate Ordinance-Final.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON THISTLE HILL PARTNERS. L.P. FOR THE ACQUISITION BY PURCHASE OR CONDEMNATION OF AN APPROXIMATE 0.08 ACRE TRACT OR PARCEL OF LAND IN FEE SIMPLE FOR STREET, UTILITY AND RIGHT-OF-WAY PURPOSES, SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY BEING LOCATED IN THE NATHANIEL BRITTON SURVEY ABSTRACT NUMBER 51 IN DENTON COUNTY, TEXAS AND BEING OUT OF THAT CERTAIN TRACT OR PARCEL OF LAND IN A DEED TO WAYNE S. RYAN AND SHELTON RYAN RECORDED IN VOLUME 2522, PAGE 898 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Denton Thistle Hill Partners L.P., in substantially the form of the agreement which is attached hereto and made a part of this ordinance for all purposes (the "Agreement"). The City Council hereby finds that the Agreement serves a valid public purpose and is in the public interest. SECTION 2. The City Manager, or his designee, and the City Attorney, or his designee, are authorized to exercise the City's responsibilities and duties under the Agreement. The City Attorney, or his designee, is authorized to retain local counsel and/or other professionals to pursue the acquisition by purchase or condemnation of the property described in the Agreement as provided for in the Agreement and to make the expenditure of funds as provided for in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EUL1NE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: BY. o--~,~~ '~ AGREEMENT WHEREAS, Denton Thistle Hill Panners, L.P. ("Developer") is the developer of a subdivision or addition to the City of Denton, Texas known as Thistle Hill Estates, Phase II (the "Development"); and WItEREAS, certain off site public street fight-of-way is necessitated by the Development as more particularly described in Exh'bit "A" attached hereto and made a pan hereof by reference (the "Property"); and WItEREAS, the Property is owned by another property owner who is unwilling to grant or convey the Property for public use at fair market value; and WI:IEREAS, the Developer has requested, in accordance with State law, that the'City of Denton, Texas (the "City") use its power of eminent domain to obtain the Property; and WltEREAS, the condemnation of the Property would be in the public interest and for a public purpose; NOW, THEREFORE, WITNESSETIt: This agreement is made this day of , 2003, by and between Developer and the City, in consideration of the mutual covenants and promises of each, agree as follows: I. Attorney's Services. The City Attorney, with the approval of Developer shall retain local counsel to provide the legal services to institute ard pursue proceedings in eminem domain to acquire the Property. The City Attorney shall assist local counsel in preparing all petitions, motions, notices, and other legal documems necessary to initiate and prosecute condemnation proceedings. The Developer shall pay all attomey fees' directly to local counsel. IL Payment of Condemnation Costs by Developer. Ali filing fees and courts costs, appraiser, expert witness fees, condemnation awards and judgments, recording fees, or other costs or fees resulting from or associated with the condemnation ( called "Costs") shall be paid by Developer. iH. Payment of Acquisition Co~, by Develope~r. Developer agrees that it wilt pay the award for the condemnation made either by the Special Commissioners, or on appeal, by judgment of the court. Should the condemnation case be non-suited or dismissed at any time prior to the entering of a judgment in this matter, Devdoper agrees to pay any costs assessed by the court against City including, but not limited to, attorney, expert witness fees and costs of the condenmee. IV. Appeal of Commissioners' Award, If; by reason of the mount of the commissioners' award made, Developer is obligated to pay in satisfaction of the award any mount in excess of market value for the Property, then Developer may request, in writing within ten days of said award, that City appeal the award made. Upon such request and the City's determination that the award was excessive, the City may, in fulfillmem of its sovereign duties and obligations within its sole discretion, authorize an appeal of the award. Developer shall pay all costs and expenses of such appeal. Upon final judgment of such appeal, Developer.shall pay the judgment of the court. V. Escrow of Funds. Before the City shall proceed with any condemnation proceedings, Developer shall pay to the City $10,000 as secu~ for the payment of the Costs (the "Escrow"). If the Escrow is not paid within 30 days of the date of this Agreement, this Agreement shall automatically terminate. Should the Costs exceed the Escrow, Developer shall tender to the City the difference together with an amount deemed reasonably necessary by the City to continue to prosecute the case, no later than 30 days after written notice l~om the City. A failure to supplement the Escrow within said 30 day period may result in the City's termination of the case at Developer's sole expense. Developer understands that the Commissioners' Award together with other costs to that date could exceed the amount of the Escrow. In such case Developer would have to pay to the City the difference, before the amount of the Commissioners' Award could be deposited and possession of the Property could be obtained, pending final disposition of the case. If the Escrow exceeds the final Costs, the City shall reimburse Developer the difference no later than 60 days after entry of a final non- appealable judgment, date of settlement with the condemnees, or d__m_e the condemnation is terminated or abandoned, whichever occurs first. The City shall pay no interest on the Escrow. The City is permitted to draw money out of the Escrow at any time for paymem of the Costs, or any portion thereof. VI. ;Hold Harmless. Developer agrees th_at the acquisition of the Property provided for in this agreement isfor the following public purposes: Public street and utility purposes. Developer agrees to hold the City harmless from~ and shall indemnify City for, any claim, loss or damage arising or resulting from any act of Developer, its agents, employees, contractors, or representatives, in acquiring the Property and constructing said public improvements. Developer further agrees that it shall not make any claim against City, or hold City liable, for any loss or damage suffered or incurred by Developer as a result of any interruption or delay in condemning or acquiring the' Property or to complete any required off-site improvements resulting fi~om any legal challenge to the right of City to condemn the Property. VII. City Discretion. The City's exercise of it power of eminent domain is a discretionary government function of the City. Therefore, the decision to institute, continue, appeal, dismiss or take any action in relation m the condemnation proceedings for the acquisition of the Property shall be in the sole judgment of the City. Prior to taking such action or actions the City agrees'to consult with the Developer. VIH. Entire Agreement. This instrument contains the entire agreement between the parties, and no statement, promise, or inducements made by any patty or agent of any party that is not contained in this written comract shall be valid or b'mding; and this agreement may not be enlarged, modified, or altered except in writing signed by all the parties and endorsed hereon. IX. Venue. Any action at law, suit in equity or judicial proceeding for the enforcement of this contract or any provision thereof shall be instituted only in the courts of Denton County, Texas. X. Assignment. It is agreed by the parties that there will be no assignment of this agreement without the written consent of all parties. XI. 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 addresses shown below, certified mail, return receipt requested, unless otherwise specified herein: To DEVELOPER: To CITY: Denton Thistle Hill Partners, L.P. President, Bill Cheek, Jr. 3625 Serendipity Hills Trail Corinth, Texas 76210-3603 Edwin M. Snyder City Attorney's Office City &Denton 215 East McKirmey Street Demon, Texas 76201 EXECUTED effective as of the date first above written. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY Michael A. Conduff, CITY MANAGER 215 E. McKinney Denton, Texas 76201 BY: APPROVED AS HERBERT BY: 5 TO LEGAL FORM: TTORNEY DENTON TI-~S~ HILL PARTNERS, L.P., R.C.G. IL Stuff managers, LLC, General Partner N~me: Bill Cheek Jr. Title: President Address: AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET May 13, 2003 Engineering Jon Fortune, Public Safety and Transportation Operations SUBJECT Consider approval of an exaction variance of Section 35.20.2(L.3.a) of the Code of Ordinances concerning improvements to a perimeter street. The parcel contains approximately 23 acres and is located on the northwest comer of Vintage Boulevard and Bonne Brae Street. The property is currently designated as PD-139 zoning district, residential lots are proposed. The Planning and Zoning Commission recommends approval of the full variance (7-0) (V03-0006) BACKGROUND Ms. Shelly Hattan, P.E., the applicant for this property (representing Charles Jowell, the developer/owner of the Vintage Addition) has applied for an exaction variance of section 35.20.2(L.3.a.) of the Code of Ordinances concerning improvements to a perimeter street. The applicant is asking for relief from the costs of construction of Bonnie Brae Street along the frontage of this development, north of Vintage Boulevard. The subject section of the ordinance requires any development on an unimproved perimeter street to "dedicate the right-of-way and improve or reconstruct the street to the same extent as is required for new perimeter streets", and, "in no case shall that portion of the street provided be less than a pavement width of twenty-five (25) feet plus required bicycle lane in the case of an arterial.". A detailed letter from the applicant is attached and outlines various items/issues. Bonnie Brae Street, in this area, is a two (2) lane rural type gravel roadway that continues north of this development, into and through a large flood plain (Hickory Creek) and crosses this flood plain with a low water bridge that is in need of substantial repair. Because of the costs of crossing this flood plain with a bridge that spans the 100year flood plain, the City's mobility plan indicates abandonment of Bonnie Brae Street sufficiently north of Vintage Boulevard to service the various properties in this area, but so as to not continue across the flood plain. Because the properties in this area, to be served, are so few (and will largely be serviced through the Meadows Addition, east of Bonnie Brae) Bonnie Brae Street will not be required to be substantially improved. In addition, based upon the approved Planned Development, The Vintage subdivision, will not take any access to Bonnie Brae Street north of Vintage Boulevard. As such, staff is in agreement with the applicant's request. It should be noted that twenty-five (25) feet of ROW for Bonnie Brae Street will be dedicated with this plat, along this site' s frontage. The City Council may approve an exaction variance if the following criterion is met: b) Criteria for variances from development exactions. Where the commission finds that the imposition of any development exaction pursuant to these regulations exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted, it may recommend approval of variances to waive such exaction's, so as to prevent Page 1 such excess, to the City Council. Waiver of developmental exactions shall be approved by the City Council. The price the applicant paid for the parcel, or the cost of the proposed building improvements is not a factor in determining reasonable costs. The City Council must decide if the costs associated with the public improvements required by city regulations are reasonable and consistent for the type of development proposed and are proportional to the demand for services created by the development. OPTIONS 1. Approve Full variance 2. Approve Full variance with conditions 3. Approve a partial variance 4. Deny variance RECOMMENDATION Staff recommended approval of a full variance of pavement design and construction improvements to Bonnie Brae north of Vintage Blvd. The Planning & Zoning Commission voted 7-0 to recommend approval of the full variance, on April 9, 2003. PRIOR ACTION/REVIEW The Planning & Zoning Commission voted 7-0 to recommend approval of the full variance on April 9, 2003. FISCAL INFORMATION City staff estimates that current construction costs for 25 ft of pavement width with curb/gutter is $75/linear ft. Given there is approximately 1100 feet of frontage, the estimated construction costs equals $82,500.00. City staff understands and agrees with the applicant that the cost to design and construct perimeter paving for Bonnie Brae Street to City standards is an unnecessary and excessive cost for this development, given the City's intent to abandon Bonne Brae Street through the Hickory Creek flood plain in the future and the fact that the development will not take access to this section of Bonnie Brae Street. ATTACHMENTS 1. Site location map 2. Plat 3. Applicant's letter 4. P & Z minutes 5. Prepared By: David Salmon, Assistant Director Engineering Page 2 Respectfully submitted: Charles Fiedler Director, Engineering Page 3 _ I ATTACHMENT # 1 LOCATION MAP IH35W [ BONNIEBRAEI NI____~ SITE /// ., ' / 13 03 03:45p ATTACHMENT #3 APPLICANT'S LETTER CivilGrrl En~ineerin~ (817) GSS-SG11 CivilGrrl Engineering, Inc. P.O. Box 48116 Watauga, Texas 76148-0116 (817) 577-0824 (0) (817) 366-6170 (M) (817) 656-5611 (F) March 13, 2003 Mr. Larry Reichhm City of Denton 221 N. Elm Street Demon, Texas 76201 VIA FACSIMILE: (940) 349-7707 RE: Exaction Variance Request for The Vintage, Phase Two-B Dear Larry: Pulte Homes of Texas, L.P, hereby requests to be relieved of the requirement to pave Bonnie Brae Street located adjacent to The Vintage, Phase Two-B. We ask for this variance because the future plans for Bonnie Brae Street includes closing Bonnie Brae Street at the Hickory Creek crossing. The traffic The Vintage residential property creates will not impact Bonnie Brae north of Vintage Boulevard. tt has been our understanding that staffwill support this variance. Currently there are no residences located along Bonnie Brae in the area we are seeking for the variance. Attached is a copy ora letter Michael A. Casey, managing partner of Denton CJW, Limked, received from David Hill, Assistant City Manager, supporting the variance dated July 3, 200 I. David Hill specifically writes, "City staffwill support a variance of perimeter paving for Bonnie Brae north of Vintage Boulevard as there will be no dkect access to that portion of B~nnie Brae, and it is the City's intent to close down Bonnie Brae in the future at Hickory Creek." Please call me if you have any questions on the above request. Sincerely, CIVILGRRL ENGINE~G, INC. Shelly S. Hattan, P.E. ' ' Consulting Engineer £n~ineerin~ (817) 8S8-5611 215 E. McKinney Street Denton, Texas 76201 (940) 349-8314 FAX (940) 349-8596 OFFICE OF THE ASSISTANT CITY MANAGER- DEVELOPMENT SERVICES July 3,2001 Michael A. Casey CRA Inc. 722 N. Fielder Road Arlington, TX 76012-4635 Dear Mr. Casey; We have reviewed your letter of May 8t~, 2001 outlining the conditions you propose to include in an agreement between the City of Denton, the Butch family, and Denton-CJW Partners Ltd. for dedicating the right of way of"Vintage Blvd." from 100 feet west of Bonnie Brae to US 377. As you likely know, the proposed road is not intended to become part of the Texas Department of Transportation road system as an extension of Loop 288. Concerning the specific conditions you propose, I offer the following. The zoning for The Vintage contains a school site and a multi-family site fronting on Bonnie Brae south of Vintage Boulevard, which is expected to generate a significant amount of traffic on Bonnie Brae. City staff will support a variance of perimeter paving for Bonnie Brae north of Vintage Boulevard as there will be no direct access to that portion of Bonnie Brae, and it is the City's intent to close down Bonnie Brae in the future at Hickory Creek. Staffdoes not support any variance that would reduce the paving requirement on Bonnie Brae south of Vintage Boulevard. In addition, according to the current Planned Development Ordinance, there is a condition that must be met regarding improvements to Bonnie Brae: "Access to Bonnie Brae, including construction access, will not be permitted until such time that that Bonnie Brae on either side of Ponder Road (now Vintage Blvd.) is either closed or substantially improved to include City of Denton standard paving and JO0 year bridge improvements." ~ Ma'r t Bonnie Brae, south from Vintage Boulevard, will need to be expanded to a 4-1ane undivided collector street, given the fact that access for a school and multi-family development is envisioned. Eventual city participation may be necessary to ensure that the full four lanes arc built; should you desire to revisit the Traffic Impact Analysis (TIA) for the Vintage to determine proportional share, we will work with you to reassess the private development impact. There may be an escrow option available ia the near fume to time road construction more appropriately to the time of adjacent development. According to the current Planned Development Ordinance, there is a condition that must be met regarding offsite transportation improvements: p.4 "No development other than single family detached and one convenience store may occur until the Interchange at 1-35 and Ponder ]~oad (Vintage Blvd.) is reconstructed in a standard diamond configuration or Ponder Road (Vintage Blvd.) is extended to ttwy 377 and is constructed with at least 2 lanes through the Vintage Development in each direction." There is currently no requirement for Denton-CJW to reconstruct the interchange. It is currently an option to extend Vintage Boulevard to US 377. This is already identified in the erdsting PD ordinance and if anything, provides some additional flexibility. The Traffic Impact Analysis (TIA) submitted at part of the original Vintage zoning indicated sufficient traffic generated by the Vintage to warrant three lanes in each direction across the commercially zoned property and two lanes in each direction through the remainder of the development. You may choose to commission a new TIA if you feel the original one was not accurate, and we wilt review and consider it accordingly. The City of Denton is willing to consider participation in the water line bore under US 377, within the project budget. The purpose of the water line is to provide limited water service to the Burch property only. The proposal stated in your letter suggests that the City agrees to the US 377 water connection in lieu of the south connection along Bonnie Brae. The staff position at the current time is that the proposed water connection be accomplished in accordance with the city's water master plan, and the approved General Development Plan and Preliminary Plat for the Vintage property (which is the Bonnie Brae route). The City of Denton will continue to seek a mutually beneficial agreement concerning the subject right-of-way with Denton-CJW Partners Ltd. At the time the City of Denton proposed roadway construction assistance through its Capi'~al Improvements Program, the understanding was that the developer would secure the necessary right-of-way. This is consistent with other agreements with private developers in the past. City staffwill recommend against entering into an agreement that includes City of Denton obligations to the Butch family. Instead of a three-party agreement, I suggest two separate agreements, one between Denton-CJW Partners and the City cf Denton and another between Denton-CJW Partners and the Butch family. For instance, we will work with you under separate agreement to use capital funds allocated for the project to design, a 2 13 03 03:46p CivilGrrl Enc~.neer!.~C' (817) 656-5611 cattle crossing ['or the Butch property, but we will not support entering into a three-party agreement. 6, Staffwill not'support a three-party agreement; we will work with you regarding a City of Denton - CJW Partners, Ltd. agreement that stipulates the ~bIigations to both parties. In addition, the original TIA indicated that there was sufficient traffic generated by the Vintage to warrant two lanes of traffic in each direction from Vintage Boulevard to Roselawn Drive. Based on Item itl above, we consider the right-of-way for the Vintage Boulevard extension to be at least a partial trade offfor the requirement to improve Bonnie Brae all the way to Roselawn Street. I think there is room for negotiation concerning how much if any of the construction of the extension of Vintage Boulevard Denton-CJW' would be required to accomplish. The City of Denton currently has $1.9 million in the Capital Improvements Program for the extension of Vintage Blvd. from Bonnie Brae to Itwy 377. Our preliminary estimates indicate that the current funding would provide three lanes in each direction including the railroad crosshag through the Burch Family property, and one lane in each direction from the Butch property to Bonnie Brae. We have hired an engineering consultant to perform a more detailed estimate to establish the extent of improvements the $1.9 millioa will provide. Once the right- of-way is ia place, the City would be in a position to initiate design of the extension. When the consultant's study is complete, we will forward a copy of the report to you. Please be advised that we have instructed the consultant to move the mute for Vintage Boulevard out of, but directly adjacent to, the Butch property floodplain. We look forward to continuing to work with you toward our mutual goal of constructing an extension of Vintage Boulevard between Bonnie Brae and US 377. Please call me if you have questions. I apologize for the delay in responding to your letter. Sincerely, ~7~ Assistant City Manager of Development Services C: Charles Jowell Howard Martin Charles Fiedler Jim Coulter Agenda No:03-007 Date 04-06-03 ATTACHMENT #4 MINUTES PLANNING AND ZONING COMMISSION APRIL 9, 2003 After determining that a quorum was presem, the Planning and Zoning Commission convened imo a Work Session on Wednesday, April 9, 2003 at 5:30 pm in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items were considered: Commissioners Presem: Susan Apple, Bob Powell, Joe Roy, Joe Mulroy, Vicki Holt, George Watkins and John Johnson. Staff Present: Ed Snyder, Assistant City Attorney: Larry Reichhart, Assistant Director of Planning and Development; Deborah Viera, Planner II, Autumn Speer, Planner I, Wes Morrision, Planner I, Kevin Roberts, Engineer; Bud Vokoun, Engineer: David Salmon, Assistant Engineer Director; Charles Fiedler, Director of Engineer. 2. 3. 4. Receive a briefing and hold a discussion of items listed on the Consent Agenda. Receive a briefing regarding contacting staff. Receive a briefing and hold a discussion on Specific Use Permits. Receive a briefing and hold a discussion on regulations and requiremems associated with the developmem of State, County, City and School District projects *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 1-42 Work Session) After the completion of the Work Session, the Planning and Zoning Commission convened imo a Regular meeting of the Planning and Zoning Commission of the City of DeNon, Texas which was held on Wednesday, April 9, 2003 and will begin at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time the following items were considered: Pledge of Allegiance A. U.S. Flag B. Texas Flag "Honor the Texas Flag - I pledge allegiance to thee, Texas, one and indivisible." Consider approval of the minutes for March 26, 2003. Motion by Joe Mulroy and seconded by Vicki Holt to approve the minutes as amended. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 1) Motion carries 7-0 Planning and Zoning Commission April 9, 2003 Page 2 of 5 CONSENT AGENDA The following items are recommended by Staff and approval thereof will be strictly on the basis of Staff recommendation. Approval of the Consem Agenda authorizes the Staff to proceed with each item in accordance with the City of DeNon Code of Ordinances. The Planning and Zoning Commission has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Consider approval of the Preliminary Plat of Estates of Forrestridge Section III Lot 64R-1 and 64R-2, Block A, being a replat of Lot 64 and approximately 1.2 acres ofunplatted land in the T.J. Martin Survey, Abstract 900. The approximately 1.7 acre site is generally located south of Visalia Lane and Belmont Street east Country Club Road. This property is in a Neighborhood Residemial 2 (NR-2) zoning strict. 2 single-family residemial lots are proposed. (PP03-0010, Estates of Forrestridge, Autumn Speer) Consider approval of the Preliminary Plat of Shiloh Fields Lot 1 Block A. The 14.5 acre site is generally located at the southeastern intersection of Mingo Road and Nottingham Drive. The property is in a Neighborhood Residemial 2 (NR-2) zoning district. Ball fields and a gymnasium are proposed. (PP02-0017, Shiloh Fields, Autumn Speer) Consider approval of the Conveyance Plat of Triad Addition Lot 1 Block 1. The 42.4 acre site is generally located on the east side of 1-35E between Scripture Street and West Oak Street. The property is in a Dowmown Commercial General (DC-G) zoning district. A hospital and medical offices are proposed. (CV03-0001, Triad Addition, Autumn Speer) Consider approval of the Final Plat of the North Poime Phase III Addition. The 25.6 acre property is generally located between North Elm Street (U.S. 77 north-to-south) and lies immediately east of the University of North Texas (UNT) research facility (formerly the Texas Instrumems facility), and south of Loop 288 roughly 1500 feet west of north Locust (FM 2164). The property is in the Planned Developmem 120 (PD-120) zoning classification. A residemial subdivision with eighty (80) single-family residemial lots is proposed. (FP02-0046, North Poime, Phase III, Tiffanie Willis) Consider approval of the Final Plat of Hickory Park Addition. The approximately 11.39- acre site is bordered by Egan Street, Ponder Avenue, Scripture Street, and Bryan Road. The property is in a Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning district. Multi-family residemial is proposed. (FP02-0050, Hickory Park Addition, Autumn Speer) Motion by Joe Mulroy and seconded by John Johnson to approve the Consem Agenda. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 1) Motion carries 7-0 Planning and Zoning Commission April 9, 2003 Page 3 of 5 F. Consider approval of the Final Plat of Teasley Harbor Subdivision, Phase 2B. The 2.5.acre site is located on the east side of Teasley Lane, approximately 700 feet south of its intersection with Hickory Creek Road. The property is in a Neighborhood Residential 4 (NR-4) zoning district. Eleven residential lots are proposed (FP03-0013, Teasley Harbor Phase 2B, Deborah Viera) item pulled from the agenda per Staff. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 1) ITEMS FOR INDIVIDUAl, CONSIDERATION Consider making a recommendation to City Council regarding a variance of Section 35.20.2 (L.3.a.) of the Code of Ordinance concerning improvements to a perimeter street. The parcel contains approximately 23 acres and is located on the northwest corner of Vintage Boulevard and Bonne Brae Street. The property is zoned Planned Development - 139 (PD-139). Single-family residential lots are proposed. (V03-0006, Vintage Addition Phase 2-B, perimeter street improvements, Bud Vokoun) Motion by Bob Powell and seconded by Joe Mulroy to approve the variance. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 5) Motion carries 7-0 PUBLIC HEARING REPLAT Hold a public hearing and consider approval of the Final Plat of Estates of Forrestridge Section iii Lot 64R-1, Block A, being a replat of Lot 64, Block A and approximately 0.162 acres of unplatted property in the T.J. Martin Survey, Abstract 900. The approximately 0.63 acre site is generally located south of Visalia Lane and Belmont Street east Country Club Road. This property is in a Neighborhood Residential 2 (NR-2) zoning strict. 2 single-family residential lots are proposed. (FP03-0010, Estates of Forrestridge, Autumn Speer) Motion by John Johnson and seconded by Joe Mulroy to approve the Final Plat. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 9) Motion carries 7-0 PUBLIC HEARINGS Hold a public forum to receive comments for inclusion into the fourth quarterly report on the Development Code. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 13) Planning and Zoning Commission April 9, 2003 Page 4 of 5 o Hold a public hearing consider making a recommendation to City Council regarding a request for a Specific Use Permit for approximately 95 acres to allow gas well development. The site is in a Neighborhood Residential 6 (NR-6) zoning district. The subject property is located east of the intersection between Bonnie Brae and the future extension of Vintage Boulevard. Two gas well sites are proposed. (Z03-0011, JOAB A&B Unit #1, Autumn Speer) Motion by George Watkins and second Joe Mulroy to recommend approval to City Council. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 33) Motion carries 7-0 o Hold a public hearing and consider making a recommendation to City Council regarding the Alternative Development Plan for approximately 0.3 acres located in a Downtown Residential 2 (DR-2) zoning district. The property is generally located at the corner of Avenue A and Fannin. A multi-family development is proposed. (ADP03-0004, Ave A & Fannin, Wes Morrison) Motion by Joe Mulroy and seconded by Vicki Holt to recommend approval to City Council. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 77) Motion carries 7-0 Hold a public hearing and consider making a recommendation to City Council regarding the rezoning of approximately 6 acres from Regional Center Commercial Neighborhood (RCC-N) to Regional Center Commercial Downtown (RCC-D). The property commonly known as 4901 1-35N and is generally located approximately 1600 feet north of Schuyler Drive on the west side of 1-35N. The expansion of the existing RV sales and display area is proposed. (Z03-0008, 1-35 RV Center, Autumn Speer) Motion by John Johnson and seconded by Joe Mulroy to recommend approval to City Council. *Discussion of item is included in the Court Reporter's transcript attached to this set of minutes (Page 85) Motion carries 7-0 Agenda No:03-007 Date 04-06-03 CondonseltTM Page 5 1 COMMI$SIONERAPPLE: Next is an item for 2 individual consideration. And Bud Vokoun with the City 3 staff will present. 4 MR. VOKOUlq: Good evening, Madam Chair, 5 lady and gentlemen of the Commission, Bud Vokoun, 6 engineering. You have before you a request by Ms. Shelly 7 Hattan, P.E., the applicant for this properly representing 8 Charles Jowell, developer/owner of thc Vintage Addition 9 who has applied for an exaction variance, Variance 03-0006 10 of Section 35.20.2(L.3.a) concerning improvementa to a ! 1 perimeter street for the Code of Ordinances regarding 12 relief from the cost of construction of Bonnie Brae Street 13 atong the frontage north of Vintage Boulevard. 14 The pamel contains approximately 23 acres 15 and is located on the northwest comer of Vintage 16 Boulevard and Bonnie Brae Street~ The property is zoned 17 Planned Development 139, single fmnily residential lots 18 are proposed. 19 Staff is supporting this variance for ewe 20 major reasons. Bonnie Brae continues through the Hickory 21 Creek flood area and because of the extent of the bridge 22 that would he needed to cross this, the City is proposing 23 that Bonnie Brae be closed in this area. Therefore, the 24 only properties that would be servicing to Bonnie Brae 25 could potentially be these lots r/ght in here, this being Page 6 1 the Meadows and this being the Vintage. 2 The plat for the Vintage in this area 3 indicates that there will be no service to Bonnie Brae. 4 Therefore, the traffic is expected and desirous to use 5 Vintage Boulevard east and west when it connects to US 6 377, which is in this way as well as 1-35W which is in 7 this direction. 8 And eventually Bonnie Brae to the south 9 will connect to US 37?, also. Because of that, there will 10 be very little traffic generated from this development, 11 and, therefore, very little use on Bonnie Brae to the 12 north. The property -- the Meadow will be accessing also 13 to Vintage. And the preliminary platting indicates that 14 there are a substantial number of noah/south roads that 15 service this property, also. So we would not expect a 16 substantial amount of traffic from either -- from this 17 property to access to Bonnie Brae. 18 And this one, at this point, has no access 19 to Bonnie Brae. And with that, that concludes staff's 20 presentation, You have a report before you. And the 21 applicant is here for any questions, 22 COMMISSIONER APPLE: Thank you. 23 Commissioner Mutrey. 24 COMMISSIONER MULROY: Yes. Bud, would you 25 -- on the abandonment of Bonnie Brae, what is the sm[us Page 7 1 on our Mobility Plan en that concept? 2 MR. VOKOUN: That is part of our Mobility 3 Plan, it is expected that we proceed forward once the 4 Vintage connects to 377 and -~ 5 COMMISSIONER MIJLROY: But that's already in 6 place in the Mobility Plan? 7 MR. VOKOUN: Yes, sir. 8 COMMISSIONER MIJLROY: Okay. That's what 9 wam]t dear. Thank you. 10 COMMISSIONER APPLE: Thank yOU. Is the 11 applicant present? Thank you. t2 MS. HA'r'rAN: Thank you. My name is Shelly 13 Hattan. I'm a professional engineer. I live at 6109 14 Estill Drive in Watauga, Texas. And I'm here in support 15 of the application, and available for any questions. 16 Thank you. 17 COMMISSIONER APPLE: Thank you. 18 Corranissioner Powell. 19 COMMISSIONER POWELL: Move to approve. 20 COMMISSIONER MIJLROY: Second. 21 COMMISSIONER APPLE: We have a motion and a 22 second to approve. Any discussion? Hearing none, vote, 23 please. Motion carries 7-0. 24 25 1 2 3 4 5 6 7 8 9 it) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 PLANNING AND ZONING MEETING APRIL 9, 2003 Page 5 - Page 8 CONFIDENTIAL AGENDA INFORMATION SHEET AGENDA DATE: May 13, 2003 DEPARTMENT: ACM: Electric Utility Howard Martin, 349-8232 SUBJECT Consider adoption of an Ordinance ratifying a PCB Waste Disposal Agreement between the City of Denton, Texas and L. W. Environmental Services, Inc. for the removal of polychlorinated biphenyls at the Spencer Electric Pole Yard; authorizing the expenditure of funds therefor; being an emergency procurement which is exempt from competitive bidding; and providing an effective date (Purchase Order No. 111225 to L. W. Environmental Services, inc. in an amount not to exceed $42,886.95). BACKGROUND During a recent review of site conditions at the Spencer Electric Pole Yard, it was discovered that, in the past, one storage building had been used to store equipment that contained polychlorinated biphenyls ("PCB"). To determine if any contamination had occurred, L.W. Environmental Services, inc. ("LW") was contracted, within the delegated authority of the Director of Electric, to test surface soil samples under the outside edge of the building. The test results indicated high levels of PCB's. Core samples were then taken from a larger area, down to ten feet. As required by environmental laws, Staff immediately notified the National Response Center ("NRC"), the Texas Commission on Environmental Quality ("TCEQ"), and U.S. Environmental Protection Agency ("EPA") of this situation. Because of the need to avoid potential diffusion of the contamination; to avoid any possible effect on the groundwater, in order to provide prompt response for clean-up per EPA guidelines, and to attempt to avoid potential fines and penalties, Staff asked LW to submit a proposal for the sampling, excavation, packaging, transportation, and disposal of PCB wastes, all according to the EPA mandated guidelines. LW promptly did so. Staff proceeded on an emergency basis with effectuating the L.W. Environmental Services, Inc. proposal, with the advance knowledge and recommendation of the City Attorney's office, the Utility Attorney, and the Purchasing Department. OPTIONS None. The PCB's must be immediately excavated, packaged, transported and disposed of by the City, in accordance with federal law. To delay clean-up and remediation activities would risk danger to the public health and safety, and would pose appreciably higher risks of fines and penalties being imposed upon the City by regulators. RECOMMENDATION We recommend that Purchase Order No. 111225 to L. W. Environmental Services, Inc. be approved in an amount not to exceed $42,886.95. ESTIMATED SCHEDULE OF PROJECT L. W. Environmental Services, Inc. expects to complete the work within thirty (30) days of notification to proceed. PRIOR ACTION/REVIEW (Council, Boards, commissions) None; due to emergency status. FISCAL INFORMATION See the attached. EXHIBITS 1. Ordinance 2. Contract Respectfully submitted: Howard Martin Assistant City Manager, Utilities Prepared by: Glenn Fisher Assistant Director of Electric Utilities S:\Our DocumentsLMiscellaneous\03\City Council Agenda Memo 051303-DME.doc ORDINANCE NO. AN ORDINANCE RATIFYING A PCB WASTE DISPOSAL AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND L.W. ENVIRONMENTAL SERVICES, INC. FOR THE REMOVAL OF POLYCHORINATED BIPHENYLS AT THE SPENCER ELECTRIC POLE YARD; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, BEING AN EMERGENCY PROCUREMENT WHICH IS EXEMPT FROM COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (PURCHASE ORDER FOR AMOUNT NOT TO EXCEED $42,886.95). WHEREAS, the City of Denton, Texas and L.W. Environmental Services, Inc. ('Comractor") have emered imo a PCB Waste Disposal Agreemem for the removal of a hazardous material, polychlorinated biphenyls ("PCB") at the Spencer Electric Pole Yard, a copy of which is attached hereto and made a part hereof by reference (the "Agreemem"); and WHEREAS, the City Council finds that the Agreement is a procurement necessary to preserve and protect the public health or safety of the City's residems and is thereof exempt from competitive bidding as authorized by Section 252.022(2) of the Local Government Code; and WHEREAS, due to the emergency nature of this procurement and due to the City's legal duty to report to the Environmental Protection Agency and begin immediate remediation of the PCB, the City was justified in emering imo the Agreemem prior to receiving City Council approval; and WHEREAS, the City Council of the City of DeNon, Texas finds that the Agreement is in the public interest; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Agreemem is hereby ratified. The City Manager, or his designee, is hereby authorized to execute the Agreement on behalf of the City of Denton and to make the expenditures provided for in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2003. EXHIBIT 1 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: L:\CC 2003\May 13, 2003\Emergency PO\2-ORD.DOC Page 2 THE STATE OF TEXAS § COUNTY OF DENTON § PCB WASTE DISPOSAL AGREEMENT THIS AGREEMENT, effective as of the day , 2003, is made by and between the City of DeNon, Texas, a municipal corporation, hereinafter referred to as "UTILITY," with the office of Demon Municipal Electric ("DME") located at 901-A Texas Street, Denton, Texas 76209; and L.W. Environmental Services, Inc. a Corporation, hereinafter referred to as "CONTRACTOR," with its offices located at P.O. Box 318, Wilson, Oklahoma 73463. That UTILITY and CONTRACTOR hereby emer imo this Agreement for services including sampling, excavation, packaging, transportation, and disposal of PCB contaminated concrete and soil wastes excavated from the UTILITY property located at 1701-C Texas Street, Denton, Texas 76205; and For purposes of this Agreemem, "PCB Waste" is defined as any material, solid or liquid, comaining or comaminated with Polychlorinated Biphenyls ("PCB") at a concemration of 2 ppm. (parts per million) or greater, including any comainers of PCB Waste supplied by the UTILITY; and The Parties in consideration of the promises made in this "PCB Waste Disposal Agreemem" (the "Agreemem"), and for the considerations expressed herein, the UTILITY and CONTRACTOR do hereby AGREE as follows: 1. SCOPE OF WORK CONTRACTOR shall provide services to UTILITY, expressly including the packing, transporting, receiving, storage, and disposal of all PCB Waste removed from the UTILITY property in accordance with the statements and requirements stated in Appendices "A" through "C" and also in compliance with all local, state, and federal regulations. The scope of work may be referred to herein as the "Project" or the "Work," and such descriptions are considered imerchangeable for descriptive purposes. The work shall include the legal excavation, labeling and packaging, transportation and disposal of PCB Waste and PCB-Containing Liquids or Solids (including dirt, debris, rags, empty comainers, etc.). CONTRACTOR shall transport the PCB Waste, as further described on the manifest covering each transaction, and provide all of the labor, materials, and equipmem for disposal of such waste in accordance with CFR Title 40 Part 761, and any other applicable laws. Disposal options and facilities may not be changed without the written concurrence of UTILITY. PCB Waste Disposal Agreement 1 EXHIBIT 2 2. PRICE CONTRACTOR shall perform the scope of work for the Project as set forth in Appendix "A" in accordance with the terms and conditions stated herein. The price UTILITY agrees to pay to CONTRACTOR for performance of the work shall be the price stated in Appendix "A." 3. PAYMENT CONTRACTOR shall submit invoices to UTILITY on a "per-load" basis, referencing the corresponding uniform hazardous waste manifest number, for approval and payment for work satisfactorily completed in accordance with the terms and conditions of this Agreement. Unless specifically modified and agreed to elsewhere in this Agreement, UTILITY shall pay the CONTRACTOR ninety percent (90%) of invoiced amount upon the receipt of signed manifest from CONTRACTOR facilities and the remaining ten percent (10%) upon receipt of a completed Certificate of Disposal from CONTRACTOR. UTILITY shall pay the CONTRACTOR within thirty (30) days of receipt and approval of invoice and accompanying documentation. 4. TAXES The CONTRACTOR shall be liable for any and all federal, state, and local taxes payable in connection with or arising from the Work. The cost of any and all such taxes shall be included, however, in the Contract Price, an amount equal to which the UTILITY will pay to the CONTRACTOR in addition to the Agreement Price, in accordance with the procedures established in these Agreement documents. It is the responsibility of the CONTRACTOR to determine, in conjunction with the appropriate federal, state, or local authorities, the nature and amount of any taxes payable as a result of the Work. CONTRACTOR shall determine, apply to, and charge UTILITY any and all applicable exemptions as to any taxes. 5. REGULATORY COMPLIANCE Both parties shall comply with the requirements of all federal, state, and local laws, rules, regulations, and ordinances applicable to the services performed under this Agreement. CONTRACTOR further agrees to comply with all rules and regulations, including safety standards, adopted by UTILITY for observance at the UTILITY premises. 6. WARRANTIES CONTRACTOR warrants that it has knowledge of the hazards associated with the handling, storage, and disposal of PCB Waste and that it has experience in such handling, storage, and disposal; that it shall have instructed its personnel, subcontractors, and PCB Waste Disposal Agreement 2 agents (if any) in the proper safety procedures to be used in such handling storage and disposal. CONTRACTOR warrants it will perform the services as set forth in Appendix "A," incorporated herein by reference, in accordance with all applicable laws and regulations. CONTRACTOR warrants that it will have obtained all licenses and permits required by law to engage in the activities required in connection with the Project. CONTRACTOR represents and warrants that any storage site and any disposal facility to which the PCB Waste may be moved are in compliance with any and all federal, state, and local laws and regulations pertaining thereto, including, but not limited to, the regulations contained in 40 CPR Chapter 1, Part 761, and that any such storage site and any disposal facility is suitable to receive and/or dispose of the PCB Wastes. 7. INDEMNITY CONTRACTOR shall indemnify, hold harmless and defend, UTILITY (including its City Council members, its Board Members, its officers, directors, employees, and subcontractors) from and against any and all claims, liabilities, penalties, forfeitures, suits, and the costs and expenses incident thereto (including costs of defense, settlement, and reasonable attorney's fees), which it may hereafter incur, become responsible for, or pay out as a result of death or bodily injuries to any person, damage to property, contamination of or adverse effects on the environment, or any violation of government laws, regulations, or orders, caused in whole or in part, by (1) CONTRACTOR breach of any term or provision of this Agreement; or (2) any negligent or willful act or omission of CONTRACTOR, its employees, or subcontractors in the performance of this Agreement. CONTRACTOR, its subcontractors, and suppliers of any type shall not be liable for UTILITY'S loss of profits or revenue, loss of use of equipment or power subsystem, cost of capital, cost of purchased or replacement power or temporary equipment (including additional expenses incurred in using existing facilities), claims of customers of UTILITY, or for any special, indirect, incidental or consequential damages, excluding damages for adverse effects on the environment, whether based on contract or in tort, including negligence or strict liability. The total per-shipment liability of CONTRACTOR under this Agreement or any act or omission in connection therewith, such as the performance or breach thereof, whether in contract, in tort (including negligence or strict liability), under any warranty, or otherwise, shall be limited to the price of that portion of the services upon which such liability is based or $2,000,000, whichever amount is greater. Provided however, this limitation shall not apply to liability for adverse effects on the environment. In the event of any liability arising out of the joint negligence of UTILITY and CONTRACTOR, each shall be liable to the other and any damaged third party in proportion to its relative degree of fault. PCB Waste Disposal Agreement 3 10. INSURANCE REQUIREMENTS During the term of this Agreement, except as specifically provided herein, CONTRACTOR shall provide and maintain, at its sole cost and expense, insurance in the following types and amounts done by Subcontractors: Type of Insurance A. Workers Compensation Insurance B. Employers Liability Insurance C. General Public Liability Insurance Bodily Injury Limit (BI) Property Damage limit (PD) BI & PD Combined Single Limit covering all work under this Agreement, including that Minimum Limits Statutory $1,000,000 each occurence $1,000,000 each occurence $500,000 each person $500,000 each occurence $1,000,000 each occurence This policy must include the following extensions of coverage: (1) Broad Form Property Damage (2) Broad Form Blanket Contractual Liability Coverage (3) Protective Liability Coverage shall be included to protect the CONTRACTOR against claims arising out of operations performed by its Subcontractors. D. Automobile Liability Insurance Bodily injury Limit (BI) Property Damage Limit (PD) BI & PD Combined Single Limit $500,000 each occurence $500,000 each person $300,000 each occurence $300,000 each occurence E. Environmental Impairment Liability $1,000,000 each occurence $1,000,000 aggregate It is stipulated and agreed that all policies of insurance required by this Paragraph 10 shall be issued by insurance companies who are currently rated at least "A-" by A.M. Best; and said policies shall additionally be issued by insurance companies authorized to do business in the State of Texas. CONTRACTOR shall maintain insurance in at least the amounts specified herein to fully protect the UTILITY from all claims of injury or damage to persons or property PCB Waste Disposal Agreement 4 that occur as a result of the fault or negligence of CONTRACTOR or its Subcontractors. CONTRACTOR shall be required to furnish certificates of such insurance to the UTILITY prior to the award of Agreement. 11. EXCUSE OF PERFORMANCE The performance of this Agreement, except for the payment of money for services already rendered, may be suspended by either party in the event the delivery of the described waste materials by UTILITY, or transportation or disposal of such materials by CONTRACTOR, are prevented by a cause or causes beyond the reasonable control of such party. Such causes shall include, but shall not be limited to, acts of God, acts of war, riot, fire, explosion, accident, flood, or sabotage; lack of adequate fuel, power, raw materials, labor, or transportation facilities; governmental laws, regulations, requirements, orders, or actions; breakage or failure of machinery or apparatus; national defense requirements; injunctions or restraining orders; labor trouble, strike, lockout, or injunction (provided that neither party shall be required to settle a labor dispute against its own best judgment). 12. SUSPENSION UTILITY may suspend the performance of CONTRACTOR'S services hereunder in whole or in part, whenever, in UTILITY'S opinion, a temporary suspension of work is necessary because of unsuitable temporary weather, other conditions unfavorable to prosecution of the work, or the failure of CONTRACTOR or Subcontractor to carry out any of the provisions of this Agreement. UTILITY may direct temporary suspension of the work for a period up to thirty (30) calendar days, upon ten (10) days prior written notice of such suspension to CONTRACTOR. Upon receipt of such notice, CONTRACTOR shall suspend operations on the work ordered suspended. After such suspension, work shall not commence until ordered by UTILITY. Any suspension of work by UTILITY shall in no case relieve the CONTRACTOR from its obligations under the Agreement. Thereafter, CONTRACTOR shall resume the full performance of the Agreement when directed to do so by reasonable notice from the UTILITY. In the event of suspension of the performance of the Agreement at UTILITY'S request, CONTRACTOR shall be entitled to reimbursement for additional costs reasonably incurred by CONTRACTOR in suspending the Agreement and during the period of suspension, and in reactivating the Agreement after the end of the suspension period, to the extent that such additional reasonable costs are incurred. In addition, CONTRACTOR shall be entitled to an equitable adjustment of the fee and schedule upon any suspension. UTILITY shall be liable for any surcharges or penalties as described in Section 5 of this Agreement resulting from delay in disposal resulting from UTILITY'S suspension of performance of this Agreement. 13. TERMINATION PCB Waste Disposal Agreement 5 If CONTRACTOR should be adjudged bankrupt; or if it should make a general assignment for the benefit of its creditors; or if a receiver should be appointed; or if it should persistently or repeatedly refuse or should fail to supply competent supervision, enough properly skilled workmen, or proper materials; or if it should fail to make prompt payments to Subcontractors for materials or labor; or if .it should persistently disregard laws, ordinances, or the instructions of the UTILITY; or if it should fail to perform the work diligently and in an orderly and workmanlike manner in accordance with the Agreement, or otherwise be guilty of a substantial violation of any provision(s) of the Agreement; UTILITY may consider CONTRACTOR in default and serve written notice upon CONTRACTOR of its intention to terminate the Agreement; such notice to contain the reasons for the intention to terminate the Agreement, and unless within ten (10) calendar days after the receipt of such notice by CONTRACTOR, such violation or delay shall cease and satisfactory arrangement for correction be made, the Agreement, upon expiration of said ten (10) calendar days, shall terminate. 14. TECHNICAL REPRESENTATIVE UTILITY hereby designates the following as UTILITY'S technical representative: Guy Phil Rennaker Denton Municipal Electric 901-A Texas St. Denton, Texas 76209 (940) 349-7182 The technical representative is responsible for monitoring and providing technical guidance to CONTRACTOR respecting this Agreement, and should be contacted regarding questions or problems of a technical nature. 15. TRANSPORTATION PCB Waste will be transported only in covered containers and trucks licensed for, and used exclusively for, hazardous waste or PCB hauling, and equipped with all necessary and required emergency cleanup materials. CONTRACTOR shall deliver all shipments promptly to a permitted treatment, storage, or disposal facility via the safest direct route. 16. MANIFESTS/LABELING. All PCB Waste shipped must be labeled and packaged in accordance with current Environmental Protection Agency ("EPA") and U.S. Department of Transportation ("DOT") regulations. CONTRACTOR shall label all PCB material according to TSCA regulations for storage, and shall provide any additional labeling required by EPA and DOT for transportation. PCB Waste Disposal Agreement 6 Manifests shall be properly filled out in accordance with current EPA and DOT regulations before the shipment will be allowed to leave the site in Denton, Texas. Manifests shall state all items are properly labeled, intact, and non-leaking. 17. LOADING CONTRACTOR will provide truck loading equipment and manpower. Trucks will be loaded under the driver's supervision and instruction. Hours of loading shall be between 7 a.m. and 4 p.m., Monday through Friday, except for UTILITY-recognized holidays. 18. CERTIFICATES OF DESTRUCTION / DISPOSAL CONTRACTOR shall upon destruction or disposal of the PCB Waste, promptly provide to UTILITY a "Certificate of Destruction of Disposal." The information on the certificate shall include, at a minimum, the correct manifest number; the date of load pickup; and the date, location, and method of waste disposal. The certificates shall be complete and line item specific. 20. INSPECTIONS AND AUDITS UTILITY shall have the right to perform an inspection of the CONTRACTOR and any Subcontractor disposal facilities for handling, loading, transportation, storage, or disposal operation practices. UTILITY may make investigations, as it deems necessary, to determine the ability of the CONTRACTOR to perform services. 21. PUBLICATIONS CONTRACTOR shall not make any news release, publicize, or advertise any articles, photos, drawings, technical data, or other information regarding the project without the prior written approval of the UTILITY. UTILITY agrees not to make any announcement or news release of information concerning this Agreement without the prior written consent of CONTRACTOR. 22. CONFIDENTIALITY CONTRACTOR shall hold and maintain as confidential all information concerning its study findings and recommendations, the business of the UTILITY, its financial affairs, its relations with its clientele and its employees, as well as any other information which may be specifically classified as confidential by the UTILITY. 23. ANTI-KICKBACK PCB Waste Disposal Agreement 7 "Kickback," as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to UTILITY or any of its employees, to CONTRACTOR or any of its employees, or to any Subcontractor or any of its employees for the purpose of improperly obtaining or rewarding favorable treatment in connection with the Agreement. CONTRACTOR shall have in place and follow reasonable procedures designed to prevent and detect possible kickback violations in its own operations and direct business relationships. 24. ENVIRONMENTAL CONTROL CONTRACTOR shall take suitable measures and provide suitable facilities to prevent pollution, oil and chemical spills, soil erosion, and the introduction of any substances or materials into any stream, river, lake, or other body of water, which may pollute or silt the water to be otherwise deleterious to fish or wildlife. CONTRACTOR shall be responsible for all costs of corrective measures required as a result of any pollution, spilling, erosion, or situations, in both water and land. 25. SUBCONTRACTORS CONTRACTOR may subcontract or sublet only such parts of the work covered by this Agreement as the UTILITY approves. CONTRACTOR shall not subcontract any work under this Agreement without written notice and approval from the UTILITY. Subcontractors solely for the convenience or profit of the CONTRACTOR may not be approved if, as determined by the UTILITY, they would have an adverse effect upon the job. UTILITY reserves the right to refuse any Subcontractor the right to participate in the work covered by this Agreement. No subcontract shall relieve CONTRACTOR of its responsibilities, and CONTRACTOR agrees that it is fully responsible to UTILITY for the acts and omissions of its Subcontractor(s). 26. INDEPENDENT CONTRACTOR CONTRACTOR'S relationship to UTILITY in the performance of this Agreement is that of an independent contractor. CONTRACTOR shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them relating to social security, income tax withholding, unemployment compensation, workmen compensation, and similar matters. 27. NOTIFICATION In the event there is a need or requirement for UTILITY to notify CONTRACTOR, such notification will be made in writing to the following address: L.W. Environmental Services, Inc. P.O. Box 318 PCB Waste Disposal Agreement 8 Wilson, Oklahoma 73463 In the event there is a need or requirement for CONTRACTOR to notify UTILITY, such notification will be made in writing to the following address: City of DeNon, Texas Director, Denton Municipal Electric 901-A Texas St. Denton, Texas 76209 28. GOVERNING LAW This Agreemem and any amendmems thereto shall be governed in accordance with the laws of the State of Texas. Venue of any cause of action brought under this Agreement shall be in the District Courts of Denton County, Texas. 29. AMENDMENTS This Agreement may, be amended only by a written agreement between the parties. 30. HEADINGS The headings employed in this Agreemem are not to be construed as modifying, limiting, or expanding in any way the scope or extent of the provisions of this Agreement. 31. ENTIRE AGREEMENT Unless differem or additional terms and conditions are subsequemly agreed upon in writing, between the parties, in which event such additional terms and conditions shall be exclusive as to the particular subject covered, the terms and conditions supersede any prior contemporaneous agreements or correspondence between the parties. 32. TERMS OF AGREEMENT This Agreemem shall become effective on the __ day of May, 2003. The work required hereunder shall commence on the effective date of this Agreemem and cominue to be performed on a "fast-track" basis, unless terminated sooner as provided herein, through June 15, 2003. "UTILITY" PCB Waste Disposal Agreement 9 CITY OF DENTON, TEXAS ("DENTON MUNICIPAL ELECTRIC") By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: "CONTRACTOR" L.W. ENVIRONMENTAL SERVICES, INC. ATTEST: By: By: PCB Waste Disposal Agreement 10 PCB DISPOSAL AGREEMENT APPENDIX "A" SCOPE OF WORK: As described in attached proposal and quotation identified as the "Scope of Services" and dated ,2003. PCB Waste Disposal Agreement 1 1 PCB DISPOSAL AGREEMENT APPENDIX "B" UTILITY shall provide the following information to CONTRACTOR in the attached description, identified as and dated: 2. 3. 4. The date on which items were placed into storage. Results of all analytical tests as required. Location and estimated quantities of waste. Assurance that the PCB Wastes are stored and packaged in accordance with applicable regulations. EPA Identification Number, if any. PCB Waste Disposal Agreement 12 PCB DISPOSAL AGREEMENT APPENDIX "C" CONTRACTOR shall submit the following information with its proposal: 1. EPA Identification Number; 2. Copy of standard "Certificate of Destruction" and "Certificate of Disposal"; 3. Name, address, and EPA identification Number of all Subcontractors and copies of any required licenses or permits which they must have for their portion of work; 4. Name and locations of all sites where UTILITY PCB waste will be stored, incinerated, landfilled, or decontaminated; 5. Landfill specifications for any landfills to be used for disposal of PCB Waste; 6. Copy of "Certificate of insurance" (naming the UTiLiTY as additionally insured); 7. Copies of all disposal permits held by CONTRACTOR; PCB Waste Disposal Agreement 13 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET May 13, 2003 Planning & Development Jon Fortune, Public Safety and Transportation Operations SUBJECT A03-0001 (Teasley Lane High School) Hold the first of two public hearings to consider the volumary annexation and service plan for approximately 67.69 acres of land generally located north and east of Teasley Lane (FM 2182) and west of Blue Bonnett in the southeastern section of the City of Denton extraterritorial jurisdiction (ET J). BACKGROUND Applicam: DeNon Independem School District (DISD) Demon, TX A volumary annexation proceeding is being considered by the City of DeNon for the Teasley Lane High School annexation. In accordance with the City's annexation policy plan, approved in June 1993, the City will "access on a case by case basis" the annexation of areas in the ETJ when significam developmems are proposed. On January 27, 2003, Bill Coleman, Coleman and Associates Land Survey, on behalf of the DeNon Independem School District (DISD), submitted a petition for voluntary annexation. The majority of the subject property is located in the extraterritorial jurisdiction and is not zoned at this time. The property is undeveloped at this time. Construction of a public high school is proposed. The Comprehensive Plan idemifies this property to be within the "Neighborhood Cemers". OPTIONS 1. Maimain land area. 2. Delete land area. 3. Amend Service Plan. 4. Deny. RECOMMENDATION Staff recommends that the first public hearing for A03-0001 be held as scheduled, and pending comments received; determine if additional information is needed. Staff recommends that the public hearings proceed as scheduled, finding that: 1. The need to manage and coordinate developmem in an orderly manner is a significam city objective that the City of DeNon will pursue. 2. The annexation tract also contains acreage designated as Environmentally Sensitive Area, which have very importam water quality and flood comrol implications. The City of DeNon intends to preserve these areas to act as a natural flood channels, rather than allowing filling of floodplains and paying for expensive concrete-lined channels at a later date. ESTIMATED PROJECT SCHEDULE The annexation process will be completed by July 22, 2003 (see Attachment 3). PRIOR ACTION/REVIEW Application Date January 27, 2003 1 st CC Public Hearing May 13, 2003 FISCAL INFORMATION 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. Service Analysis 2. Location Map 3. Annexation Schedule 4. Draft Annexation Service Plan Prepared by-: Chris D. Hatcher Planner II Planning and Development Respectfully submitted: AICP, RLA Assistant Director Planning and Development ATTACHMENT I Service Analysis by Department Police. Estimated average response time for this area based on currem departmem conditions: Priority.__ 5.6 minutes Non-priority 8.11 minutes Average. 6.82 minutes Appropriate average response time in the city based on current department conditions: Priority 5 - 6 minutes Non-priority 9 - 11 minutes Average. 7 - 10 minutes A school resource officer (SRO) staffs all high school within the DeNon Police Departmem jurisdiction. Provided that an SRO staffs this school, the listed response times would not apply during school hours. During those times when school is not in session, or when the SRO is not present on campus, the listed response times apply. There is the potential for some additional police related activity from the surrounding neighborhoods due to the increase in traffic flow to and from the school. In addition, depending on the design of the school grounds (fencing, etc) there is a possibility of an increase in criminal activity in those residemial neighborhoods adjacem to the school property. Engineering and Transportation. The following roads will be impacted by the proposed annexation and developmem in terms of needed improvemems or upgrades: Name and location Teasley Lane Old Alton Road Type of Improvemem Approximate Cost Widening unknown Widening unknown Teasley Lane will be upgraded from a two lane to a four-lane highway. Construction timeline is unknown at this time. TX DOT will fund this improvement. Note that Old Alton Road is curremly not within the City Limits. Additional equipmem and facilities needed as a specific result of this annexation and development are right and left turn pockets at all driveways, a possible traffic control signal at Teasely and the main emrance, a traffic control signal at Teasley/Old Alton and at Teasley Robinson Rd. DISD will be responsible for all cost associated with the design and installation of all of right/left tums for each driveway; all costs associated with the design and (when it meets warrants), installation of the traffic control signal at the main entrance; participation costs of the design and installation of the signals at Teasley/Robinson and Teasley/Old Alton Fire. Fire Station 6, located at 3232 Teasley Lane, will service this area. The estimated response time for this area is 3 minutes. No additional facilities, equipmem, or personnel is needed as a result of this annexation. Parks and Recreation. CurreNly, there are no city parks within the proposed annexation. The closest DeNon Parks property to the proposed annexation area are Cross Timbers Park, 1.33 miles, Briercliff Park, 2.36 miles, and South Lakes Park, 3 miles and Ryan Road South Community Park, 2 miles. CurreN resideNs will be able to use existing City of DeNon parks, facilities and programs. The 2000 Park and Recreation Master Plan indicates a need for community and neighborhood parks in this general area. Service standards for neighborhood and community parks are as follows: Service Standards: Neighborhood Parks: 2.5 acres per 1,000 population (to be dedicated at time of developmenO $ acres minimum size. (by developer) cost per acre. Community Parks: 3. 0 acres per 1, 000 population 30 acres minimum If additional park facilities are developed to serve this area, $172,700.00 in additional funding and 2 new staff members will be needed to properly serve this area. Denton Parks and Recreation Department will attempt to coordinate placement of park facilities adjaceN to school property or develop join use agreemeNs. Library. There is no direct impact of this annexation and proposed developmeN on library services. ANicipated service demands can be met using existing materials, facilities and personnel. Solid Waste. ResideNial and commercial solid waste services are available to the proposed area. waste services must be requested. Solid Water. Maintenance of water facilities in the area to be annexed that are not within the service area of another water utility will begin upon the effective date of the annexation using existing personnel and equipmeN. CurreNly, the area to be annexed is within the Certificate of Convenience and Necessity (CCN) of the City of DeNon and is served by water lines located along the boundaries of the annexation area. Existing Water service is not adequate for the proposed usage. The developer will extend any necessary in accordance with the DeNon DevelopmeN Code. The City shall provide a level of water service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maiNenance available in other parts of the city with topography, land use, and population density similar to those reasonably coNemplated or projected in the area. Waste Water. MaiNenance of wastewater facilities in the area to be annexed that are not within the service area of another wastewater utility will begin upon the effective date of the annexation using existing personnel and equipmem. Curremly, the area to be annexed is within the Certificate of Convenience and Necessity (CCN) of the City of DeNon and is served by wastewater lines located along the boundaries of the annexation area. Existing wastewater service is not adequate for the proposed usage. The developer will extend any necessary in accordance with the DeNon Developmem Code. The City shall provide a level of wastewater service, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maimenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. Drainage. Since the Comprehensive Plan designates this area as Neighborhood Cemers, denser developmem patterns are allowed. Dense developmems usually result in increased impervious cover. Mitigation measures may be needed to address drainage. The Environmemally Sensitive Areas (ESA) map shows a stream buffer area traversing the property from the northwest to southeast. This portion of the property may be affected by the 100-year floodplain. The stream buffer area shall remain natural and not be disturbed per the Denton Development Code and Drainage Criteria Manual. 100-year water surface elevations shall not increase as a result of any reclamation of the floodplain. Other floodplain criteria will apply. DISD is proposing to improve the unstudied floodplain and has submitted a CLOMR to the City for Review. No improvemems will occur inside the floodway or the 100 foot ESA buffer with the exception of 1 private road crossing, 1 pedestrian bridge, and a detemion pond. Electric. DeNon Municipal Electric (DME) has an existing main line in the FM 2181 right-of-way along the property boundary. Transformers and specific lines to provide electric service to the customer is all that would be required. DME is currently working with the Architect and engineers designing the new high school on how to provide electric service to the school. Note that the new Teasley Substation at FM 2181 and Hickory Creek Road is almost complete. ATTACHMENT 2 Location Map A03-0001 (Teasley Lane High School) NORTH SITE LOCATION MAP Scale: None ATTACHMENT 3 ANNEXATION SCHEDULE FOR Teasley Lane High School Annexation Tuesday, May 13, 2003 City Council conducts first public hearing Wednesday, May 14, 2003 Planning and Zoning Commission public hearings - make a recommendation to City Council regarding the proposed annexation and the proposed zoning. Tuesday, May 27, 2003 City Council public hearing conducts second Tuesday, June 17, 2003 First reading of annexation ordinance - City Council by a 4/5th vote institutes annexation proceedings. Tuesday, July 22, 2003 Second reading and adoption of annexation ordinance and public hearing for zone change request- City Council by a 4/5th vote takes final action on annexation. City Council by simple majority vote takes final action of zone change request. ATTACHMENT 4 CITY OF DENTON DRAFT SERVICE PLAN FOR A03-0001 (Teasley Lane High School) I. AREA ANNEXED The annexation area is located in the southeastern portion of Denton's Extraterritorial Jurisdiction and comains approximately 67.69 acres generally located north and east of Teasley Lane (FM 2181) and west of Blue Bonnett. II. INTRODUCTION This service plan has been prepared in accordance with the Texas Local Governmem Code, Sections 43.021, 43.065, and 43.065(b)-(o) (Vernon 1999, as amended). Municipal facilities and services to the annexed area described above will be provided or made available on behalf of the City in accordance with the following plan. The City shall provide the annexed tract the levels of service, infrastructure, and infrastructure maintenance that are comparable to the levels of service, infrastructure, and infrastructure maimenance available in other parts of the city with similar topography, land use, and population density. III. AD VALOREM (PROPERTY OWNER) TAX SERVICES Ae 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 equipmem. If annexed and developed as proposed, additional personnel and equipmem will be needed. Code enforcemem and animal comrol services will also be provided to the property upon the effective date of the annexation. Be Fire Protection Fire protection (within the limits of existing hydrams) and emergency medical services will be provided to the property upon the effective date of the annexation. The estimated emergency response time in this area is 5 minutes, which is similar to responses for surrounding properties within the city limits. The City of DeNon will provide emergency medical services ("EMS"). Ce Roads and Streets Roads and streets, which have been properly platted, duly dedicated, and accepted by the City of DeNon and/or DeNon County shall be maimained by the City of DeNon on the effective date of the annexation. Installation and maintenance of street signs, street lighting and traffic comrol devices will be maimained by the City of DeNon on the effective date of the annexation. 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 are curremly located within the proposed annexation area. DeNon neighborhood me Fe Ge park facilities are located within reasonably close distance of the proposed annexation area. Residems of the proposed annexation area will be able to use existing City of DeNon park and recreation facilities and programs. Library Services Library services will be made available on the effective date of the annexation on the same basis and at the same level as similar library facilities are maimained throughout the city. Building Inspections and Consumer Health Services Building inspections and consumer health services will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the City. Both services are provided on a "cost recovery" basis, and permit fees offset the costs of services delivered. Incomplete construction must obtain building permits from the Building Inspections Department of the City of Demon. Planning and Development Services Planning and developmem 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 developmem regulations. City Council adopted The DeNon Plan, the city's 1999-2020 comprehensive plan, by Ordinance 99-439 on December 7, 1999. The Future Land Use Plan addresses both land in the city and its ETJ, and the subject tracts comain Neighborhood Cemers and 100 year Floodplain/ Environmemally Sensitive Areas. The DeNon Plan designates future land uses to manage the quality and quamity of growth by organizing the land use patterns, by matching land use imensity with available infrastructure, and by preserving floodplains as environmemal and open space corridors. The DeNon Plan will be used as a basis for final zoning classifications after the properties are annexed. IV. UTILITY (RATEPAYER) SERVICES Ae Solid Waste Collection The City of DeNon is the exclusive residemial and commercial Solid Waste service provider within DeMon's city limits. The City Ordinance requires Solid Waste services for all residences and commercial businesses located in the City. The City of Demon Solid Waste Departmem is fully funded through the service fees charged, and receives no funding from city tax revenues. Solid waste refuse collection services will be provided to the newly annexed property immediately upon the effective date of the annexation. To request Solid Waste collection services, please telephone the City of DeNon Customer Service Department at 940-349-8210 and submit an application to initiate service. To obtain City of DeNon 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 Agreemem to Solid Waste Customer Relations prior to commencing service. Residemial Comainerized Refuse Service Each residemial address will be provided a 96-gallon wheeled refuse cart, which will be serviced one time per week. Residems are required to place their refuse cart(s) at the curb prior to 7:00 a.m. on their collection day. Carts should be placed at the curb for collection no earlier than 6:00 p.m. the evening prior to their collection day. Carts are to be removed from the curb no later than 6:00 a.m. on the day following their collection day. All refuse placed in the cart for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the cart with the lid closed will not be collected. Additional carts may be provided for an additional monthly charge. Smaller carts are available for a lower monthly charge. Weekly brush service is provided. Residemial Curbside Recycling Service Curbside recycling services are provided to all residemial solid waste service customers. Commercial Refuse Service Each commercial business will be provided with a commercial comainer(s), which are available in a variety of sizes and frequencies of collection, based on the waste generated. All refuse placed in the comainer for collection must be bagged to eliminate wind blown debris and littering. Refuse that is not placed in the comainer with the lid closed will not be collected. Refuse placed outside the comainer is subject to code enforcement regulations, including potential fines. Landfill Service The City of DeNon Solid Waste Landfill hours of operation are 7:00 a.m. to 4:00 p.m. Monday through Friday; and 7:00 a.m. to 12:00 p.m. on Saturdays. For information regarding disposal charges, call the Landfill Office at 940-349-7510. Water/Wastewater Facilities Maimenance 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 area to be annexed is within the Certificate of Convenience and Necessity (CCN) of the City of DeNon and is served by water and wastewater lines located along the boundaries of the annexation area. Existing Water service is not adequate for the proposed usage. The developer will extend any necessary water and wastewater infrastructure in accordance with the DeNon Developmem Code. 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 maimenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. 10 Ce Drainage Services Drainage maimenance will be provided to the property upon the effective date of the annexation. The City shall provide a level of drainage services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maimenance available in other parts of the city with topography, land use, and population density similar to those reasonably comemplated or projected in the area. We VI. D. Electrical Services Denton Municipal Electric is certified by the State and is obligated to provide electric utility service to the annexation area should a request be made by a property owner. Electric utility service will be made available on the effective date of the annexation on the same basis and at the same level as similar facilities are maimained throughout the city. DeNon Municipal Electric is the currem electric service provider for this site. OTHER SERVICES Other services that may be provided by the City, such as municipal and general administration will be made available on the effective date of the annexation. The City shall provide a level of services, infrastructure, and infrastructure maintenance that is comparable to the level of services, infrastructure, and infrastructure maintenance available in other parts of the City with topography, land use, and population density similar to those reasonably comemplated or projected in the area. CAPITAL IMPROVEMENTS PROGRAM (CIP) No new construction of additional water, sewer, street, and drainage facilities is comemplated 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 improvemems is comemplated as a result of this annexation that would begin within two and a half (2 lA) years after the effective date of the annexation. The City shall consider construction of other public improvemems as the needs dictate on the same basis as such public improvemems are considered throughout the City for areas having similar characteristics of topography, land use, and population density. WlI. Will. UNIFORM LEVEL OF SERVICES MAY NOT BE REQUIRED Nothing in this plan shall require the City to provide a uniform level of full municipal services to each area of the City, including the annexed area, if differem characteristics of topography, land use, and population density are considered a sufficiem basis for providing differem levels of service. TERM This service plan shall be valid for a term of ten (10) years. shall be at the discretion of City Council. Renewal of the service plan 11 IX. AMENDMENTS The service plan may be amended if the City Council determines at a public hearing that changed conditions or subsequent occurrences make this service plan unworkable or obsolete. The City Council may amend the service plan to conform to the changed conditions or subsequent occurrences pursuant to Texas Local Government Code, Section 43.056 (Vernon Supp. 2000). 12 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: May 13, 2003 Planning and Developmem Departmem Jon Fortune, Public Safety and Transportation Operations SUBJECT: ADP03-0004 (Avenue A and Fannin) Hold a public hearing and consider adoption of an ordinance for an Alternative Developmem Plan on approximately 0.5 acres located in a Dowmown Residemial 2 (DR-2) zoning district. The property is generally located at the northeast comer of Avenue A and Fannin Street. A multi-family developmem is proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicam: Craig Irwin Demon, Texas The applicant is requesting an Alternative Development Plan to allow for an artificial faCade that will appear to be the main entry from Avenue A. Section 35.13.13.3 of Denton Development Code requires that parking areas not be located between buildings and the street. The proposed developmem places the main emrance adjacem to the parking lot. Since parking is not allowed between the building and the street the residems of the complex would be required to park behind the building and walk around to the from to emer each unit or emrance in the from and rear of the structure would need to be provided. The applicam is proposing an artificial faCade that would appear to satisfy the requiremem for the main entry facing the main street, Avenue A. Actual emry to the individual units would be made from an emryway facing the parking lot at the rear of the building. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of' the Alternative Development Plan as proposed by the applicant (7-0). ESTIMATED PROJECT SCHEDULE The subject property is platted. Building permits can be issued once construction plans are approved. 1 PRIOR ACTION/REVIEW The following is a chronology of ADP03-0004, commonly known as Avenue A and Fannin: Prior to the adoption of the Development Code, the property was zoned Single Family 7 (SF-7). Ordinance 2002-040, adopted on February 20, 2002 placed the subject property in Downtown Residential 1 (DR-1) zoning district and land use classification. Ordinance 2002-158, adopted on May 21, 2002 placed the subject property in Downtown Residential 2 (DR-2) zoning district and land use classification. No neighborhood meeting was held. ATTACHMENTS 1. Staff Analysis 2. Location/Zoning & Land Use Maps 3. Notification Map & Information 4. Proposed Building Elevations 5. Planning & Zoning Commission Meeting Minutes, April 9, 2003 6. Draft Ordinance Prepared by: Wes Morrison Planner I Respectfully submitted: RLA, AICP Assistant Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Request The site is approximately 0.5 acres. A 12-unit multi-family development is proposed. The applicant is requesting approval of an Alternative Development Plan to allow for an artificial faqade that will appear to be the main entry from Avenue A. The applicant is proposing to construct two buildings using fixed French doors that will appear to be the front entrance from the street (Attachment 4). The actual entrance to each unit in the complex will be made from the parking lot at the rear of the buildings. The applicant has intentions of meeting all other site design requirements. Existing Condition of Property Adjacent zoning: North: Downtown Residential 1 (DR-l) -Single family uses South: Downtown Residential 1 (DR-l)- Single family uses East: Downtown Residential 1 (DR-l) - Single family uses West: Downtown Residential 1 (DR-l)-Single family uses Comprehensive Plan Analysis The subject site is located in a "Downtown University Core District" future land use area. Specified commercial areas of the downtown university core district should be places of great vitality, with a mix of educational, residential, retail, office, service, government, cultural, and entertainment development. The health and vitality of the area can contribute in a major way to the city, its local and regional image, and quality of life. It is a place where residents can live, work, learn, and play in the same neighborhood. It includes different uses, which may occur on each floor of the building. The proposed development will be compatible with the future land use plan. Development Code/Zoning Analysis Current Downtown Residential 2 (DR-2) zoning allows for the development of the proposed 12- unit apartment complex. Site design criteria does not allow for the main entrance to the unit from the rear of the building. Section 35.13.13.3 states that buildings shall be directly accessed from the street and sidewalks and that parking areas shall not exist between the street and the building. 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 development and structure would preserve the existing neighborhood. 2. Assure quality development that fits with the character of Denton. The proposed development will meet the criteria of the Denton Development Code and the construction and site design will be compatible with the character of Denton and the specific area. 3. Focus on new development to activity centers to curb strip development and urban sprawl. The urban sprawl and strip development requirement does not apply. 4. Ensure that infrastructure is capable of accommodating development prior to the development occurring. Adequate infrastructure exists to service the proposed development. Staff Findings The proposed Alternative Development Plan is consistent with the intent of the Development Code. Staff Recommendation Based on above findings staff recommends approval of the requested Alternative Development Plan. ATTACHMENT 2 Location/Zo ' Map NORTH Land Use Map Scale: None ATTACHMENT 3 Notification Map NORTH Scale: None Public Notification Date March 28, 2003 200' Legal Notices* sent via Certified Mail: Number of responses to 200' Legal Notice · In Opposition: 1 · In Favor: 0 · Neutral: 0 Less than 5% of land within 200 feet is in opposition. 25 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Attachtnent 4 I Attachment 4 Attachment 5 Page 77 1 COMMISSIONER APPLE: The next item is also 2 a public hearing. Wes Momson with the City staff will 3 present. I'll open the public hearing, 4 MR. MORRISON: Good evening, Madam Chair, 5 Comanissioners. The applicant is requesting an alternative 6 development plan for a 12-unit multi-family development 7 located at the northeast corner of Avenue A and Fannin. 8 The request would allow for an artificial 9 facade that would appear to be the main entry from the 10 Avenue A point of the property. Parking is not allowed 11 between the building and the street, therefore, the 12 residents of the complex would be required to park behind 13 the building and walk around to the front to enter each 14 unit. 15 The artificial facade would appear to 16 satisfy thc requirements for the main entry facing the I7 ma~n street, which is Avenue A in this case. The actual 18. entry to the individual units would be made from the 19 parking lot, which is at the rear of the building. 20 Property notification was done within 200 :21 feet. And at this time staff has received one letter of 22 response. The proposed alternative development plan is 23 consistent with the intent of the Code and staff 24 recormnends approval. Are there any questions that I can 25 answer at this time? 1 2 3 4 5 6 7 8 9 10 Page 78 COMMISSIONER APPLE: The response that you received, was it favorable? MR. MORRISON: NO. I'm sorry, in opposition. I'm sorry. COMMISSIONER APPLE: Thank you. MR. MORRISON: Thank you. COMMISSIONER APPLE: The applicant is present? MR. MORRISON: Yg8. MS. MITCHELL: Madam Chair, members of the I 1 Planning and Zoning Eommission. My name is Karen 12 Mitchell, Mitchell Planning Groups, 7823 Nine Mile Bridge 13 Road, Fort Worth. This is going to be so much faster than 14 the last one. 15 There are a number of reasons why we are 16 requesting the alternative development plan, however, the 17 major issue is really that of a safety liability issue. 18 This particular area has a very high vebicle and 19 pedestrian traffic. By having the front doors close to 20 the street and parking behind the buildings, there' s a 21 safety concern primarily for the female tenants and 22 tenants who have small children. 23 Having parking close to the front door 24 entry provides for a safer environment. We have designed 25 our buildings to have a faux front or also known as a fake 1 2 3 4 5 6 7 8 9 10 11 12 13 t4 15 16 17 18 19 2O 21 22 23 24 25 Page 79 front door entry, but we would like all of our traffic to be internal to the site. By keeping the design of the building close to the property line and all of the parking in the rear, I believe the purpose and intent of the ordinance is still being observed, however, we jus[ want to provide a safer environment for our tenants. This is the actual street elevation which shows these doors right here. They are all nonfunctioning doors. They are doors that are just here for the -- obviously, for the looks. The elevation that would be facing the parking ama, which would be behind the building is like this. With that in mind, I'll be happy to answer any questions that you-all may have. COMMISSIONER APPLE: Thank you, I don't see any. question. COMMISSIONER POWELL: I've got one COMMISSIONER APPLE: Conmtissioner Powel]. COMMISSIONER POWELL: Mr. Roy reminded me, nowadays we're trying to eliminate these French words and faux would probably be best replaced with fake. MS. MITCHELL: Or freedom. COMM[SSIONERAPPLE: Good point. Thank you, Ms. Mitchell. Is there anyone in the audience who wishes to address this Agenda Item? Seeing no one coming Page 80 1 forward, I'm going to close the public hearing. 2 COMMISSIONER MULROY: Madam Chair, I'm 3 ready to make a motion. 4 COMMISSIONER APPLE: commissioner Mulroy. 5 COMMISSIONER MULROY: I'[[ move approval as 6 recommended by staff. 7 COMMISSIONER HOLT: second. 8 COMMISSIONER APPLE: We have a motion and a 9 second. Any discussion? Cormnissioner Roy. 10 COMMISSIONER ROY: Yes, ! noticed we have 11 one person against this. I'm curious, do you have any 12 idea why this person is against this? What -- 13 MS. MITCHELL: [ don't think the staff 14 received the letter until this week on it. When we came 15 through a zoning change on it, this person was not in 16 opposition. I really think this person who lives in 17 Bur[eson -- I think there may be some confusion thinking 18 that this is an actual zoning case. I mean, we're 19 speculating on that. 20 COMMISSIONER ROY: Thank you. 21 COMMISSIONER APPLE: we have a motion and a 22 second. Vote, please, 23 COMMISSIONER HOLT: 1 had something. 24 COMMISSIONER APPLE: YOU didn't have your 25 button pushed. PLANNING AND ZONING MEETING APRIL 9, 2003 Page 77 - Page 80 4 5 6 7 8 9 10 fl 112 13 14 15 16 17 18 19 2O 21 22 23 24 25 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Attachment 5 COMMISSIONER HOLT: 1 did. COMMISSIONER APPLE: Not lit, Stop the presses, Commissioner Holt has a discussion point. COMMISSIONER HOLT: I'm sorry. I jUSt wanted to say this is a great example of a multi-family grouping that is pulled up toward the street, the parking is in the back. It's going to look great from the front and we appreciate it. Thank you. COMMISSIONER APPLE: Thank you, Commissioner Holt. Okay. Let's try this one more time. Let's vote, please. Motion passes 7-0. Page 82 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 10 11 I2 13 14 15 16 17 18 20 21 22 23 24 25 Page 83 Page 84 PLANNING AND ZONING M]EETING APRIL 9, 2003 Page 81 - Page 84 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN ALTERNATWE DEVELOPMENT PLAN ON APROXIMATELY 0.5 ACRE OF LAND GENERALLY LOCATED AT THE NORTHEAST CORNER OF AVENUE A AND FANNIN STREET, WITHIN A DOWNTOWN RESIDENTIAL 2 (DR-2) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR THE PURPOSE APPEAR TO BE THE OF ALLOWING AN ARTIFICAL FACADE THAT WILL MAIN ENTRY FROM AVENUE A; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (ADP03-0004) WHEREAS, Irwin Realty Group 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 a part hereof as Exhibit "A" (the Alternative Development Plan), on approximately 0.5 acre of Iand located in a Downtown Residential 2 (DR-2) zoning district, as more particularly described as Block 2, Lot 5 of the Wattam Addition, and addition to the City of Denton, Texas (the "Property"); and WHEREAS, on April 9, 2003, the Planning and Zoning Commission recommended approval of a Alternative Development Plan for an artificial facade; 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. 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 shalI not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are servable. 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 dally newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED th/s the ~day of 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 Exhibit A Z AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: May 13, 2003 Planning and Developmem Departmem Jon Fortune, Public Safety and Transportation Operations SUBJECT: Z03-0008 (1-35 RV Center) Hold a public hearing and consider adoption of an ordinance rezoning approximately 6.0 acres from Regional Cemer Commercial Neighborhood (RCC-N) to Regional Cemer Commercial Dowmown (RCC-D). The property, commonly known as 4901 1-35N is generally located approximately 1600 feet north of Schuyler Drive on the west side of 1-35N. The existing RV sales and future display areas are proposed. The Planning and Zoning Commission recommends approval. (7-0). BACKGROUND Applicam: Mike Semrau DeNon, Texas The applicam has submitted an application to rezone approximately 6.0 acres of land in a Regional Cemer Commercial Neighborhood (RCC-N) zoning district to a Regional Cemer Commercial Dowmown (RCC-D) zoning district. The proposed rezoning would serve to bring the existing RV Cemer imo compliance and to allow for the expansion of sales and display areas. The applicant could also request the expansion of a special exception for the existing RV Center. If rezoned this use would be a permitted use. However, staff feels the zoning change method is the most appropriate means to bring the existing and future site into compliance with the Denton Developmem Code. Staff has no objections to this proposal. Public notification and property owner responses are provided in Attachmem 3. As of this date staff has received one response in favor and no responses 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. (7-0). ESTIMATED PROJECT SCHEDULE Approximately four of the six acres in questions are not platted. Property will be required to be platted prior to any development. PRIOR ACTION/REVIEW The following is a chronology of Z03-0008, commonly known as 1-35 RV Center: The two acres fronting 1-35 were platted as Lot 1, Block A of the 1-35 RV Center in March 2002. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map, Owner Responses, Responses) 4. Minutes from April 9, 2003 Planning and Zoning Commission Meeting 5. Draft Ordinance and Exhibits 6. Applicant Submittal Neighbor Prepared by: Autumn Speer Planner I Respectfully submitted: RLA, AICP Assistant Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Zoning Request The applicant is requesting the rezoning of approximately 6.0 acres from Regional Center Commercial Neighborhood (RCC-N) to Regional Center Commercial Downtown (RCC-D). The existing RV sales and future display areas are proposed. The requested zoning change would allow the applicant to bring the existing site into compliance with the new zoning district and allow for the expansion of sales and display area on the adjacent 4 acres that is currently vacant. The following table shows the land uses differences in the existing RCC-N zoning district versus the proposed RCC-D zoning district: All other uses, whether permitted or not, are the same. Motels P N Bed and Breakfast L(9) P Retail Sales and Services L(13) P Professional Sales and Services L(14) P Vehicle Repair N P Auto and R V Sales N P Administrative and Research L(14) P Facilities Bakeries L(21) P Light Manufacturing N L(23) Veterinary Clinics L(14) P L(9) - No more than 15 units N = Not Permitted L(13) - No more than 55,000 sq ft P = Permitted L(14) - No more that 10,000 sq ft L(21) - Not to exceed 2,500 sq ft L(23) - Light manufacturing of products sold on site permitted, manufacture area not to exceed 5,000 sq ft Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Regional Center Commercial Neighborhood (RCC-N) zoning district and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, the property was zoned Light Industrial (LI). Four of the six acres is currently vacant and the two acres fronting 1-35 contain the RV Center. Adjacent zoning: North: Regional Center Commercial Neighborhood (RCC-N) zoning district - vacant and commercial property South: Regional Center Commercial Neighborhood (RCC-N) zoning district - vacant and commercial property East: Neighborhood Residential Mixed Use (NRMU) - vacant West: Regional Center Commercial Neighborhood (RCC-N) zoning district - vacant 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. The proposed use is suitable for the future land use plan in this area. Staff Findings The proposed zoning change is compatible with The Demon Plan and surrounding land uses. Staff Recommendation Based on the above finding staff recommends approval for the proposed zoning change. ATTACHMENT 2 Current Zoning Map NORTH Proposed Zoning Map ATTACHMENT 3 Public Notification Map NORTH !iLimits of 200' i Notification FAVOR Limits of ~00' Notification Scale: None Public Notification Date March 29, 2003 200' Legal Notices* sent via Certified Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 1 · Neutral: 0 Percent of land within 200' in opposition: 0 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Mary Bess Miller 1205 Meadow Ridge Drive Denton, Texas 76201 Favor NA *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1.8 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 Attachment 4 t'age u5 COMMISSIONER APPLE: Moving right along to Item No. 9. It's a public heating and Autumn Speer with the City staff will.present. I'll open the public hearing. MS. SPEER: Good evening again, Commissioners. Agenda Item No. 9 concerns a request to rezone approximately 6 acres from a regional center commercial neighborhood zoning district to a regional center commercial downtown zoning district. The property commonly known as 4901 1-35 is located about 1600 feet north of Schuyler Drive on the west side of t-35 north. Currently, there is an RV sales in place on the frontage as you can see right here. And the applicant is proposing to purchase an additional four acres to expand the P,V sales and display area. The applicant -- the RV side exists currently under a special use exception. The applicant could pursue expanding this to the four acres, but staff recommends the zoning change to basically clean up the site and to make the existing use in compliance with the Denton Code. We do have one favorable response right here, Provided m your backup is a table which compares the existing RCC-N tO the RCC-D zoning district. And there are four main differences of which the motels are permitted in the current zoning district whereas they are Page 87 1 MS, SPEER; NO, 2 COMMISSIONER MULROY: okay. Do you think 3 that would be commensurate with -- what you're asking thzm to do is something beyond what they really need to do, it's -- MS. SPEER: well, in the same token, if they applied for a Special Exception Expansion, they would have to go to P and Z and City Council for approval on that as well~ COMMISSIONER MULROY: BUt they wouldn't have to pay the fees. MR. REICHHART: I believe it's the same fee. us. SeEER: ~ think it would be the same COMMISSIONF_,,R MULROY: okay. MR. REICHHART: I alrt 95 percent sUm. I will clarify fltat and get back to you, but I believe it's the same fee. COMMISSIONER MULROY: My suggestion -- it's just a suggestion that if we are asking them for the benefit that will be to the City for cleanup purposes for the zoning, if there's a differential in fees, that I would recommend that we waive it, and that's just a commollt. Page 86 not in the proposed and vehicle repair and auto and RV sales are not permitted in the current RCC-N district and th~ are in the Rcc-r). ^nd that, of course, is what the applicant is wanting to do the Rv sales. Prior to the adoption of the Development Code, the property was zoned light industrial. Adjacent to thc property are other [tCC-N zoning districts and other compatible uses. The property is in a regional mixed use center, future land use area. And the proposed use is suitable for thc future use plan in this area. Staff finds that tile proposed change is 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 88 compatible with the Denton Plan and surrounding land uses, and based on thc above finding, staff recoInmends approval. COMMISSIONER APPLE: Thank you. Commissioner Mu]roy. COMMISSIONER MULROY: YeS. You mentioned that the owner/occupant was eligible to achieve the same end by the special exceptions clause in the Code and was urged, convinced by staff to rezone it? MS. SPEER: They would have to go through the same precis and staff felt that the zoning, the rezoning would be a more official process for future sites and what have you. COMMISSIONER MU[ROY: And there may be merit to that. Have we waived their zoning fees? 1 2 3 4 5 6 7 8 9 10 11 MR. REICHHART: okay. COMMISSIONER APPLE: IS the applicant present? MS. SPEER: They arc. I don't know if he's here to speak or present. He may be here just for questions. THE APPLICANT: I'm here for any questions. COMMISSIONER APPLE: Thank you. I don't see any questions. Is there anyone else in the audience who wishes to address this Agenda item? Seeing no one coming forward, I will close the public hearing. 12 Co~mmssioner Johnson. 13 COMMISSIONER JOHNSON: Move approval. 14 COMMISSIONER MULROY: second. 15 COMMISSIONER APPLE: We have a motion and a 16 second to approve. Any discussion? Hearing none, vote, 17 please. Motion carries 7-0. That concludes our Agenda t 8 for this evening. Is there anything for future business? 19 MR. REICHHART: I do have one item that I'd 20 like to bring to everybody's attention, the downtown 21 master plan public form'n neighborhood meeting, if you 22 will, is scheduled for April 30th. It will be right here 23 in the city council chambers. It wi[[ also be televised. 24 We're scheduling the time and I'll have that for you at 25 our next meeting. We're anticipating either 5:30 or 6:00 PLANNING AND ZONING MEETING APRIL 9, 2003 Page 85 - Page 88 Attachment 5 ORDINANCE NO. AN ORD/NANCE OF ~ CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM REGIONAL CENTER COMMERCIAL NEIGI-IB ORI-IOOD (RCC-lq) ZON1NG DISTRICT CLASSIFICATION AND USE DESIGNATION TO REGIONAL CENTER COM/M~R~ DOWNTOWN (RCC-D) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 6.0 ACRES OF LAND GENERALLY LOCATED ALONG ~ WEST 8IDE OF 1-35, APPROXIMATELY 1600 FEET NORTH OF SCHUYLER 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. (Z03-0008) WHEREAS, Mike Semrau has applied for a change in zoning for approximately 6.0 acres of land, 2 acres ofwkich are described as Lot 1, Block A of the 1-35 RV Center, an addition to the City of Denton and the remaining 4 acres of which are particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (such 6 acres being hereinatler called tho "Property") from Regional Center Commercial Neighborhood (RCC-N) zoning district classification and land use designation to Regional Center Commercial Downtown (RCC-D) zoning district classitication and use designation; and WI-tB~, on April 9, 2003, 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 COLrNCr[. OF TI~ CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the Property approximately is hereby changed from Regional Center Commercial Neighborhood (RCC-N) zoning district classification and land uso designation to Regional Center Commercial Downtown (RCC- D)zoning district classification and u~e. SECTION 2. The City's official zoning map is amended to show the change in zoning district classification. SECTION 3. ffany provision of this ordinance or Re 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. SECTIQN. 4. Any person violating any provision ofthis 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 thc City Secretary is hereby directed to cause the caption of this ordinance to be published twice in.the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ~ day of 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 32989 TRACT A ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE B.B.B. & C.R.R. SURVEY, ABSTRACT NUMBER 141, AND BEING PART OF THE TRACT OF LAND DESCRIBED IN THE DEED TO DAVID ANGEL RECORDED IN VOLUME 3158, PAGE 372 OF THE REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS; BEGINNING AT A FOUND IRON PIN AT THE NORTHWEST CORNER OF LOT 1, BLOCK A OF t-35 RV CENTER AS SHOWN BY THE PLAT THEREOF RECORDED IN CABINET U, PAGE 542 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS IN THE SOUTH LINE OF LOT 1, BLOCK 1 OF WESTERN HILLS BUSINESS PARK AS SHOWN BY THE PLAT THEREOF RECORDED IN CABINET M, PAGE 300 OF THE SAID PLAT RECORDS; THENCE SOUTH 00 DEGREES 13 MINUTES 24 SECONDS EAST WITH THE WEST LINE OF THE 1-35 RV CENTER A DISTANCE OF 60.56 FEET TO A FOUND IRON PIN AT AN ANGLE POINT IN SAID WEST LINE; THENCE SOUTH 00 DEGREES 15 MINUTES 00 SECONDS WEST WITH THE WEST LINE OF THE 1-35 RV CENTER A DISTANCE OF 335.80 FEET TO A FOUND IRON PIN AT THE SOUTHWEST CORNER OF THE 1-35 RV CENTER IN THE WEST LINE OF A TRACT OF LAND DESCRIBED IN THE DEED TO MARY BESS MILLER AND J.A. MILLER RECORDED UNDER CLERKS FILE NUMBER 99-R0001872 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 89 DEGREES 50 MINUTES 00 SECONDS WEST A DISTANCE OF 219.80 FEET TO A SET IRON PIN WITH A YELLOW PLASTIC CAP STAMPED "METROPLEX 1849"; THENCE NORTH 00 DEGREES 15 MINUTES 00 SECONDS EAST A DISTANCE OF 396.36 FEET TO A SET IRON PIN WITH A YELLOW PLASTIC CAP STAMPED "METROPLEX 1849" IN THE SOUTH LINE OF WESTERN HILLS BUSINESS PARK; THENCE NORTH 89 DEGREES 50 MINUTES 00 SECONDS EAST A DISTANCE OF 219.30 FEET TO THE POINT OF BEGINNING, CONTAINING 2.000 ACRES OF LAND. 32989 TRACT B ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE B.B.B. & C.R.R. SURVEY, ABSTRACT NUMBER 141, AND BEING PART OF THE TRACT OF LAND DESCRIBED IN THE DEED TO DAVID ANGEL RECORDED IN VOLUME 3158, PAGE 372 OF THE REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS; COMMENCING AT A FOUND IRON PIN AT THE NORTHWEST CORNER OF LOT 1, BLOCK A OF 1-35 RV CENTER AS SHOWN BY THE PLAT THEREOF RECORDED IN CABINET U, PAGE 542 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS IN THE SOUTH LINE OF LOT 1, BLOCK 1 OF WESTERN HILLS BUSINESS PARK AS SHOWN BY THE PLAT THEREOF RECORDED IN CABINET M, PAGE 300 OF THE SAID PLAT RECORDS; THENCE SOUTH 00 DEGREES 13 MINUTES 24 SECONDS EAST WITH THE WEST LINE OF THE 1-35 RV CENTER A DISTANCE OF 60.56 FEET TO A FOUND IRON PIN AT AN ANGLE POINT IN SAID WEST LINE; THENCE SOUTH 00 DEGREES 15 MINUTES 00 SECONDS WEST WITH THE WEST LINE OF THE 1-35 RV CENTER A DISTANCE OF 335.80 FEET TO A FOUND IRON PIN AT THE POINT OF BEGINNING OF THE HEREIN DESCRIBED TRACT AT THE SOUTHWEST CORNER OF THE t-35 RV CENTER IN THE WEST LINE OF A TRACT OF LAND DESCRIBED IN THE DEED TO MARY BESS MILLER AND J.A. MILLER RECORDED UNDER CLERKS FILE NUMBER 99-R0001872 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 00 DEGREES 15 MINUTES 00 SECONDS WEST WITH THE WEST LINE OF MILLER TRACT A DISTANCE OF 396.36 FEET TO A SET IRON PIN WITH A YELLOW PLASTIC CAP STAMPED "METROPLEX 1849"; THENCE SOUTH 89 DEGREES DISTANCE OF 219.80 FEET TO CAP STAMPED "METROPLEX 1 50 MINUTES 00 SECONDS WEST A A SET IRON PIN WITH A YELLOW PLASTIC 849"; THENCE NORTH 00 DEGREES DISTANCE OF 396.36 FEET TO CAP STAMPED "METROPLEX 1 15 MINUTES 00 SECONDS EAST A A SET IRON PIN WITH A YELLOW PLASTIC 849"; THENCE NORTH 89 DEGREES DISTANCE OF 219.80 FEET TO 2.000 ACRES OF LAND; 50 MINUTES 00 SECONDS EAST A THE POINT OF BEGINNING, CONTAINING Attachment 6 1-35 R,¥. Center 49011-35 N. Denton, TX 76207 940-9814155 Fax 940-891-2996 Larry Reichhart Assistant Director of Planning and Development City of Denton Dear Larry, My pa.rtner and I are purchasing a four acre parcel that adjoins the two acre pamel approved for R.V. Sales and service prior tO the z~ning change last February. Prior to consummating the pumhase, we need to have an approval to use the property for R.V. sales and Service; A site plan is at~ached to demonstrate how we intend to utilize the six acre p~cel. The legal descriptions for the two acres approved for R.V. sales prior to the zoning change is: The Final Plot of Lotl, Block A of the 1-35 Center Addition The legal description of tho adjoining four acres requiring a zoning variance is: Four acres out of B.B.B. and C.R.R. Sy. No. 14 Denton County, Texas. Important Points For Consideration ~l The four acres we need a variance for are located behind the frontage two acres as opposed to expanding to the adjoining front two acres. #2 Existing public utilities are more than adequate for the usage requirement for the four acres. #3 No additional entrances from the 1-35 service road will be needed. #4 Tho expansion and development of the four acres will have the same usage that was previously approved for the frontage two acres. Let me know what the next step is. Thanks, Mike Semrau AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: May 13, 2003 Planning and Developmem Departmem Jon Fortune, Public Safety and Transportation Operations SUBJECT: Z03-0011 (JOAB A & B Unit #0 Hold a public hearing and consider adoption of an ordinance for a Specific Use Permit to allow gas well developmem. The approximately 95 acre site is in a Neighborhood Residemial 6 (NR- 6) zoning district and is generally located east of the imersection between Bonnie Brae and the future extension of Vintage Boulevard. Two gas well sites are proposed. The Planning and Zoning Commission recommends approval (7-0) with conditions. BACKGROUND Applicam: Ken Seligman, R.L. Adkins DeNon, Texas The applicam has submitted a request for a Specific Use Permit (SUP) proposing two gas well sites. The NR-6 zoning allows gas well sites only with the approval of a Specific Use Permit. Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has received no responses in favor or in opposition from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. RECOMMENDATION The Planning and Zoning Commission recommends approval. (7-0), with the following conditions: All residences within 500 feet of the well site will be noticed 24 hours prior to the fracing of the wellhead. Fracing operations are restricted to daylight hours only. All structures shall have a maximum height of 16 feet. An 8 foot wooden fence will be installed on steel post around the well site to create a visually appealing screen for the well site. RECOMMENDATIONS CONTINUED The barricade located at the end of Vintage Blvd. shall be improved and maintained by the developer to prevent access to the private drive connecting Vintage Blvd. To Bonnie Brae. Conspicuous no trespassing signs shall be posted and maintained by the developer at said location, that are a sufficient warning to enable the prosecution of trespass violators. Development and operation of the gas well development shall be in accordance with the site plan on file in the City Planning Department, a copy of which is attached hereto and made a part hereof as Exhibit "B". ESTIMATED PROJECT SCHEDULE A Gas Well Development Plat must be approved prior to any permits being released. PRIOR ACTION/REVIEW The following is a chronology of Z03-0011, commonly known as Joab A&B #1: Application Date - Planning and Zoning Public Hearing - February 27, 2003 April 9, 2003 No Neighborhood meeting was held. This site is adjacent to an area that was recently rezoned NRMU and across Bonnie Brae from the proposed Liberty Christian school site. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification Map 4. Minutes from April 9, 2003 Planning and Zoning Commission Meeting 5. Draft Ordinance and Exhibits Prepared by: Autumn Speer Planner I Respectfully submitted: g and Development ATTACHMENT 1 Staff Analysis Summary of Zoning Request The subject property is zoned Neighborhood Residential 6 (NR-6). The applicant must obtain the approval of a Specific Use Permit (SUP) to allow for the construction of a gas well site. The SUP is required in Neighborhood Residential 6 because it was assumed that it would be developed for high-density single-family homes. Existing Condition of Property Property History. February 20, 2002 - The subject property was placed in the Neighborhood Residential 6 (NR-6) zoning district and land use classification by Ordinance 2002-040. Prior to the adoption of the Development Code, the property was zoned Agricultural (A). The subject property currently contains 3 single-family homes and accessory uses. Gas wellhead sites are not allowed within 500 feet of any residential structure, place of assembly, institution, or school. Gas wellhead sites may be located no less than 250 feet from a residential structure if the owner of said structure agrees in writing. The Texas Railroad Commission regulates how close the gas wellhead can be located to the property line depending upon the filed location and acreage. Adjacent zoning: North: South: East: West: Neighborhood Residential 2 (NR-2) - single-family/agricultural Extra Territorial Jurisdiction (ET J) zoning districts - single-family/agricultural Extra Territorial Jurisdiction (ET J) zoning districts - single-family/agricultural Planned Development 139 (PD-139) - Single family residential, proposed private school and proposed neighborhood services A single family home is located within 500 foot of the proposed gas well site Joab A, however it is in the Extra Territorial Jurisdiction to the south of the proposed gas well site. Comprehensive Plan Analysis The subject site is located within a "Neighborhood Centers" future land use area. These areas may develop in conventional patterns or may be developed in a pattern of 'neighborhood centers'. Neighborhood centers are oriented inwardly, focusing on the center of the neighborhood and containing facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elementary school. Currently the areas surrounding the site are predominantly vacant and agriculturally used land. The proposed specific use permit would not be detrimental to the existing or future development of this area since future development can take place surrounding the gas well site once it has been completed. Development Review Analysis Transportation Trip Generation. After construction of the well site, no generated. A Traffic Impact Analysis will not be required. significam vehicle trips will be Access and Connectivity Access to the property will be temporarily from Vimage Boulevard to Bonnie Brae. Based on this access staff is recommending the approval of a condition requiring the developer to provide the standards for and upon City approval, install a more substantial barrier than currently exists west of Bonnie Brae to prevent the general public from accessing Bonnie Brae. Development Code/Zoning Analysis The applicam has proposed the construction of two gas well sites. The Neighborhood Residemial 6 (NR-6) zoning designation allows gas well sites only with the approval of a specific use permit. All gas well sites shall comply with the Subchapter 22 of the Developmem Code that pertains to gas well drilling and production. 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; The operation of the gas well site should not diminish or impair property values in the immediate vicinity, as the proposed location of the wellhead is emirely located on the subject property. 2. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; It is unlikely that establishmem of this specific use will impede the normal and orderly developmem of surrounding property. 3. The adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; All necessary supporting facilities will be provided. 4. The design, location and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; All proposed parking areas and driveways meet the requiremems of the City of DeNon. 5. That adequate nuisance preventions measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; Adequate nuisance prevemion measures will be taken. With the exception of drilling the well, no noise, odor or fumes will be produced. Subchapter 22 of the Developmem Code addresses the issue of nuisance prevemion measures. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and Proposed lighting will not affect neighboring properties. Subchapter 22 of the DevelopmeN 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, future single-family developmeN is planned in the area. Another option could include paining 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 The proposed use is compatible with The DeNon Plan and the DeNon DevelopmeN Code. The applicaN has met all requiremeNs of a Specific Use Permit. The establishmeN of two gas well sites at this location will not have any detrimeNal impacts on the surrounding area. STAFF RECOMMENDATION Based on the above findings, staff recommends approval of the specific use permit with the following conditions: 1. The developer will be required to provide the standards for and upon City approval, install a more substantial barrier than currently exists west of Bonnie Brae to prevent the general public from accessing Bonnie Brae. 2. 24 hour notice will be provided to resideNs within 500 feet of the well site prior to beginning any fracing 3. Fracing operations are restricted to daylight hours only 4. All structures shall have a maximum height of 16 feet 5. A security fence and landscape tree screen shall be installed around the well site ATTACHMENT 2 Location/Zoning Map NORTH Proposed Gas Well Sites Land Use Map Neighborb SITE ,Center Sites Gas ATTACHMENT 3 Public Notification NORTH SITE ETJ 'roposed Gas Well Sites Newspaper Notification Date: 200' Legal Notices* sent via Certified Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 0 · Neutral: 0 March 27, 2003 3 Percent of land within 200' in opposition: approximately 0 % Scale: None *Sites in the Extra Territorial Jurisdiction are not notified via courtesy notice. *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Attachment 4 Page ~'3 1 COMMISSIONER APPLE: Our next item is a 2 public hearing and Autmmn Speer with the City staff will 3 present. I'1l open the public heating. 4 MS. SPEER: Good evening, Commissioners. 5 Agenda item No. 7 concerns a request for a 6 Specific Use Permit for approximately 95 acres for gas 7 well development, As you can see on the site, it is in a 8 Neighborhood Residential 6 Zoning District, which does 9 require the approval of the Specific Use Permit to allow l0 gas wells. 11 The applicant is proposing two gas well 12 sites. The site is located east of thc intersection of 13 Bonnie Brae in the future extension of Vintage Boulevard, 14 and is located next to -- adjacent to an area that was 15 recently zoned Neighborhood Residential Mixed Use and 16 across the street from PD-139 where the Liberty Christian 17 School is proposed. 18 The Specific Use Permit is required in this 19 Neighborhood Residential 6 Zoning District primarily 20 because it was assumed at the time of Code adoption that 21 it would be developed for high density single family 22 homes. 23 Prior to the adoption of the Code, the land 24 use classification was agricultural. It was in a 25 neighborhood's center's future land use. Currently, the Page 34 I area surrounding the site are predominantly vacant. 2 Sorry. I've got two things here. l>redominately vacaat 3 and agriculturally used land, however as mentioned, 4 several areas of development are occurring in the site. 5 Section 35.6.5 of the Denton Development 6 Code does require that a Specific Use Pemfit meets seven 7 conditions according to the Code. The gas well sites as 8 proposed do meet the conditions for the Specific Use 9 Permit. However, the access to the property, if you can t0 see here is from Vintage, which extends to Bonnie -- is 11 not completed the extension to Bonnie Brae. 12 So we are proposing as one condition that 13 there must be some sort of substantial barrier between the 14 existing access from Vintage to Bonnie Brae to the site. 15 Staff finds that the proposed use is compatible with the 16 Denton Plan and the Denton Development' Code, and have met 17 the requirements of the Specific Use Pernfit. 18 Thc establishment of the two gas well sites t9 at this location will not have any detrimental impacts on 20 the surrounding area. However, staff does recommend 21 approval with conditions. 22 One, as mentioned earlier, the developer 23 wilt 'be required to provide the standard score and upon 24 City approval install a more substantial barrier than 25 cu_rmntly exists west of Bonnie Brae to prevent the Page 35 1 general public from accessing Bonnie Brae from Vintage. 2 Two, 24-hour notice will be provided to 3 residents within 500 feet of the well site prior to 4 beginning any drilling. 5 Three, fracking operations are restricted 6 to daylight hours only. 7 Four, alt structures will have a maximum 8 height of 16 feet. 9 And, five, a security fence and landscape 10 tree screen shall be installed around the well site. The 11 applicant is here for any questions. 12 COMMISSIONER APPLE: Thank you. 13 Commissioner Mulroy. 14 COMMISSIONER MULROY: Yes. Before we get 15 into the merits, just let me make a clerical correction on 16 condition manber two, the last word, I think you mean 17 "fracking" rather than "drilling." 18 MS, SPEER: Yes. 19 COMMISSIONER MULROY: Thank you. 20 COMMISSIONER APPLE: Mr. Reichhart. 21 MR. REICHHART: And I think it might be in 22 hindsight now. The -~ and we might talk about the 23 screening as we go on, but if it is a vegetative 24 screening, we can take out trees, because it could be a 25 combination -- I don't think it just has to be trees. Page 36 1 Just vegetative buffer as opposed to tree buffer. 2 COMMISSIONER APPLE: Thank you. 3 Commissioner Powell. 4 COMMISSIONER POWELL: Yes. To staff, I'm 5 confused why the applicant on property across thc street 6 would be obhgated to block Vintage. Vintage is going 7 west. They're on the cast side. I'm confused. 8 MR. REICHHART: one of the conditions when 9 the Vintage was approved is that they would not got access 10 to Bonnie Brae until such time that they provided -- 11 either improve the interchange at 35 or provided 12 additional right-of-way to extend Vintage to 377. 13 Neither of those have been completed to 14 date. So right now Vintage stops short of Bonnie Brae. 15 And no one is supposed to access -- and what we have found 16 out there, that people go around the barriers that are 17 there, drive on the dirt to get on to Bonnie Brae. 18 They are proposing access to their site 19 from Vintage Boulevard. Therefore, they are going to be 20 putting in a gravel road from Vintage to their well site 21 which would provide better access, if you would, to the 22 Bonnie Brae. So we need a substantial barrier there. 23 COMMISSIONER POWELL: That clears it up for 24 me. I understand now. Tlmnk you very much. 25 COMMISSIONER APPLE: Thank yOU. You said PLANNING AND ZONING MEETING APRIL 9, 2003 Page 33 - Page 36 Conde~seltTM Page 37 the applicant was present? 2 MS. SPEER: Correct. 3 MS. MITCHELL: Madam Chair, members of the 4 Planning and Zoning Commission. My name is Karen Mitchell 5 with Mitchell Planning Group, 7823 Nine Mile Bridge Road 6 in Fort Worth, 7 Ms. Speer has done a good job in explaining 8 this to you as well as Mr. Reichhart, And I really 9 appreciate that. There are a couple of things that I 10 would like to show you-all. As Mr. Reichhart just 11 explained, Mr. Powell~ that this is the -- I just kind of 12 want to show you an illustration here. The property that 13 we're talking about tonight is located right here known as 14 the Joab site. This is the Vintage site at this location. 15 Vintage Boulevard comes to about ~- I want 16 to say the pavement comes to approximately -- it's about 17 670 feet from Bonnie Brae. Located approximately right 18 here is a large pool of water. And so it kind of ponds up 19 at that location, kind of in the dirt area. 20 What they have done is come through and put 21 a dirt road that comes up around, this being Vintage 22 Boulevard, up around and comes out to this sim right 23 here, We are proposing that this line up with how we will 24 be entering this site over here until Vintage Boulevard 25 does go across, Page 38 1 And Mx. Reichhart didn't go into a lot of 2 detail about that because y'all are going to be seeing 3 that come in on another case as far as the -- when Vintage 4 Boulevard is going to be built. But the City has akeady 5 received funding to build Vintage Boulevard all the way 6 across to 377. We are in the process of trying to secure 7 the right-of-way with the Burches. And we feel like 8 that's going to be happening real soon because we have a 9 lot of projects that are kind of pending that happening. 10 The conditions, I'd like to, if I could, 11 just kind of -- I want to go into a little bit of detail 12 on number one, because I have talked to the Engineering 13 Department as far as what would be satisfactory to the 14 City as well as to my clients. But what I'd like to say 15 is that I don't believe that we have a problem with t 6 Condition No~ 2 or No. 3 or No. 4, Number 5, however, and 17 I don't really know if it's necessarily a problem or not, 18 bm it kind of is a concm'n because by putting in a 19 security fence and landscape tree security fence, we're 20 going to be doing that anyway. 21 As far as landscaping is concerned, if 22 you-all recall, all of these conditions came from another 23 case that I had where there was a substantial amount of 24 opposition on this. This is something that in this 25 particular case is a little bit different because we don't Page 39 1 necessarily have any opposition on this. So I don't know 2 if that's something that would weigh into your decision or 3 not. 4 Again, we don't have any problem putting up 5 some type of fencing, security fencing around it because 6 the Ordinance allows us to do that. But as far as the 7 landscaping is concerned, we may want to talk with you a 8 little bit more about that. 9 Nmnber one, the developer shall provide a :10 substantial barrier than currently exists. Just to kind 11 of give you a better idea and then Madam Chair, with your 12 permission and the Commission's permission, we did go out 13 and take some photographs of the site today that we would 14 like to show you. But currently what exists is Vintage 15 Boulevard, this being the end of the pavement, this being 16 the water pond that I explained to you. 17 Coming up along Bonnie Brae at this 18 location. What we propose [o do is to put a gate that 19 comes up across Vintage Boulevard at this location and 20 then a fence, the type of fence that we are proposing is a 21 four-foot tall metal post with two-foot top rail fence. 22 The gate would be a 30-foot wide gate, You-all have seen 23 those types of gates before. We have pictures of what my 24 client had put up on Vintage Boulevard before to try to 25 stop the traffic. Page 40 1 And, unfortunately, even with these huge 2 posts going down in the ground and being in the ground 3 with concrete, we've got pictures where people pull them 4 up. And so this is something that -- understanding that 5 this is a temporary situation until Vintage Boulevard is 6 buitt which is going to happen, again, very soon. But as 7 far as putting any other type of barrier on this, we don't 8 even think that this will stay because even before our 9 gravel road went in, people have been using this. 10 People will find every way possible to get 11 around and get over on to Bonnie Brae. At this time with 12 your permission, I would like to ask Mr. Rex Mathis to 13 come up just so that you-all can see the pictures of areas 14 where people have been trying to get around as well as 15 this gravel road. 16 COMMISSIONER APPLE: That will be all 17 right, Ms. Mitchell, but Cmmnissioner Mulroy has a 18 question of you, I believe. 19 MS. MITCHELL: okay. 20 COMMISSIONER MULROY: Excuse me for 21 interrupting, but would you clarify the extent of the 22 fence that you're -- the gate and fence that you're 23 proposing on this sketch before we get past it? 24 MS. MITCHELL: okay. We would be proposing 25 to just put up a 30-foot gate. It woutd be a four-foot PLANNING AND ZONING MEETING APRIL 9, 2003 Page 37 - Page 40 CondenseltTM 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 :23 24 25 Page 41 tall, which is in this location right over here. COMMISSIONER MULROY: Right. MS. MITCHELL: FoIlr foot tail that woutd be metal posts with the gates coming at this location right here. The top rail, then, would extend across to Bonnie Brae. COMMISSIONER MULROY: Right. Just draw your -- the point of your pencil across the fence again, the extent -- right there. And that's what you're proposing? MS. MITCHELL: It's about 220 feet from here to here. COMMISSIONER MULROY: Okay. And then what is represented going south on Bonnie Brae. COMMISSIONER POWELL: Those little circles. COMMISSIONER MULROY: Yeah. MS. MITCHELL: Those little circles are COMMISSIONER MULROY: And they're existing? MS. MITCHELL: Yes, sir. COMMISSIONER MULROY: okay. Thank you. COMMISSIONER APPLE: Thank you. Cormnissioner Roy. COMMISSIONER ROY: Yes. Why are you putting the gate there rather than right at the access to Page 43 1 crossings and the condition of the approval, we do know 2 they will find a way to get around, drive on the dirt, go 3 farther around, in between the trees or something like 4 that. But we're trying to prohibit as much traffic ~o 5 Bonnie Brae as we possibly can. 6 COMMISSIONER APPLE: Commissioner Mukoy. 7 COMMISSIONER MULROY: Let me see if ! can 8 put these pieces of the puzzle together. Staff you're 9 looking to find a way to let the gas well development go 10 on. One of the conditions is that this appticant is 11 putting in this gravel road for access and egress for 12 their well site truck servicing. And your concern is with 13 this new gravel road, it's going to exacerbate an already 14 existing condition of individuals driving their cars from 15 the end of the Vintage pavement over that field to get on 16 to Bonnie Brae any way they can. And Pm sumfising your 17 point of view is, yes, we can allow the access road, the 18 well sites, and the wells, but we don't want to be in a 19 position that we have made it more convenient to get on to 20 Bonnie Brae from the end of the pavement for individual 21 passenger vehicles. So, therefore, you're looki~g for a 22 barrier: is that the correct understanding? 23 MR. REleVanT: with tile exception that I 24 believe and maybe Mr. Sahnon can expand on this, that the 25 gravel is currently there. Page 42 1 what you call the Joab site? 2 MS. MITCHELL: That is an exceltent 3 question because that is what staff originally had asked. 4 And, unfortunately, this is about a 70-foot radius that 5 the trucks have to have. So when t faxed this over to 6 Dave Salmon earlier today, I explained that to him that it 7 would be very difficult to do a gate that would be a 8 70-foot wide gate. 9 And he said that he was -- I don't know if 10 he' s here right now, but--okay. Good. And so he may be 11 able to answer that. He had said that he did understand 12 that. And so he didn't -- I don't think had a problem 13 with us putting at this location instead. 14 COMMiSSiONER ROY: welt, I can tell you 15 that the residents are going to have a problem with it. 16 If you go out them and took at it, I don't think the 17 residents are going to leave that gate there. t 8 MS. MITCHELL: well, and that's the point 19 I'm trying to make is -- 20 COMMISSIONER ROY: But if yOU moved it over 21 to the west side of Bonnie Brae where you could control 22 it, nobody is going in that fietd. 23 COMMISSIONER APPLE: Mr. Reichhart. 24 MR. RE1CHHART: The -- we don't want the 25 residents accessing Bonnie Brae because of the low water 1 2 3 4 5 6 7 8 10 :tl 12 13 14 15 16 17 18 2O 21 22 23 24 25 Page 44 MS. MITCHELL: That's correct. It's already being used. COMMISSIONER MULROY: IS it there as a result of the gas development? MS. MITCHELL: NO, sir. Actually, there was atready a road that was in place. But what we had to do is -- it's been used by all of the residences in the past, but what we had to do for the property that is located to the north of here known as the Ranches of Hickory Creek was to go ahead and put this -- make it into an all-weather surface road. So we had to put some paving in there in order to make it -- COMMISSIONER MI, JLROY: So it's unrelated then, to the gas well development? MS. MITCHELL: Pretty much, yes, sir. COMMISSIONER MLILROY: Okay. So then why are we putting a barrier across it? MR. SALMON: Let llle add some history to this. What occurred when the first gas well development went in, of course, Vintage Boulevard doesn't connect to Bonnie Brae. And the bridge, I'm going -- there's two bridges on Bonnie Brae in either direction. Both of them are toad ~- have load limits, which means that the gas well vehicles could not access the site from either direction on Bonnie Brae. PLANNING AND ZONING MEETING APRIL 9, 2003 Page 41 - Page 44 CondenseitTM 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 So they came to the City understanding that there was a condition in the Vintage eD that said that Vintage Boulevard could not be connected to Bonnie Brae until such time that either Vintage extended across 377 or Bonnie Brae was closed to the north. And, of course, not wanting to be in violation of that condition of the Pr), they said, well, we can't get in on Bonnie Brae because of the load-limited bridges. We understand we can't connect Vintage Boulevard Page 47 i question of enforcement of the conditions of the first gas 2 well plat, is it not? 3 MR. SALMON: It wasn't even really a 4 condition of the first gas we[[ plat. It was a -- it was 5 an administrative decision made by staff that if the gate 6 were installed, that they would still be meeting the 7 conditions of the Vintage ?D. SO there was no condition, 8 per se, attached to the first gas well plat. at this time to Bonnie Brae, but we do want to get in with our gas well vehicles to be able to put in the gas wells. And, so, you know, how can we go ahead and do that? We'd like to put in a gravel mad or something to get us there. And we agreed administratively at that time that as tong as they provided a gate, some sort of a barrier with a gate that might be locked, that only the gas well operators could open and close, that they would be meeting the condition that was in the PD for the Vintage. What was placed out there was a steel post and I think some chain. And we've on a number of occasions have had some complaints from residents out there saying that people from the Vintage arc driving across country on the gravel road and have knocked down the chain gate and am coming up and down Bonnie Brae and Page 46 i we've asked the applicant on, I don't know, two or three 2 different occasions, if they could please put the gate 3 back up, which they've done. But it keeps getting knocked 4 down again. 5 So when this case came through to put even 6 mom gas wells on the other side of Bonnie Brae, we 7 thought this would be the appropriate time to try to put 8 something a little bit more stable in place. 9 COMMISSIONER APPLE: commissioner Mulroy. [0 COMMISSIONER MULROY: Yes. And thank you, 11 and I'm really consider I still have the floor because 12 this is a continuing response to my earlier question, 13 while it would occur to me that the problem is more of 14 enforcement of the first agreement on the first gas well 15 development plat, not whether the second applicant should 16 have onerous conditions imposed upon it. 17 MR. SALMON: It'S the same applicant. 18 COMMISSIONER MULROY: But is it the same 19 gas well 20 21 plat. 22 23 legalistic 24 25 9 10 11 t2 13 t4 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER MULROY: SO this, then, goes back to the owners of the Vintage PD working out an agreement with the gas well developers? MR. SALMON: Right, I'm assuming that at that time the Vintage folks worked out some sort of an agreement. COMMISSIONER MULROY: Okay. I really would look for some clarification frora the City standpoint, how we're jumping two entities here and making an imposition on an sup on the second developer for something that really goes back to the PI) owner and conditions. And if it's something they have to do, they should work it out independently with the gas well mineral developer. Thank you. COMMISSIONER APPLE: Mr. Reichhart. MR, REICHHART: The only other option would be to not allow any gas well developments west of Bonnie Page 48 1 Brae because they couldn't access that development -- you 2 know, they couldn't access the sites. Whether we had a 3 gate up there originally, additional companies want to usc 4 that road. And it would be the same as improving a road 5 to additional standards for more traffic, we took at it as 6 getting a more substantial gate that works properly to 7 allow additional gas wells to develop. § COMMISSIONER MULROY: well, excuse me, 9 Larry, I still continue to have the floor, you're 10 answering the stone question. Well, it's still a matter of 11 enforcement that a barrier was asked for in the first 12 development permit, the first gas well permit, and it's 13 proved ineffectual. So that is back to enforcing the 14 agreement that you have, not superimposing that agreement 15 on the second person~ 16 COMMISSIONER APPLE: He's speechless. 17 MS. MITCHELL: Madam Chair, I have a 18 picture that I would like -- ask that it to be -- go ahead plat? MR. SALMON: NO, it's a different gas well COMMISSIONER MULROY: okay. There's a difference there, is them not? MR. SALMON: I don't know. COMMISSIONER MULROY: But this is a 19 and shown on the screen for you-all. This shows the -- 20 just an example -- it gives where the barrier ia located 21 across. 22 We have -- this is the end of pavement for 23 Bonnie Brae. These am the posts that have been taken 24 down and them was also a cable that was located right 25 here that went across over this direction. The other 2003 Page 45 - Page 48 PLANNING AND ZONING MEETING APRIL 9, CondenseltTM Page 49 1 pictures that we have that we can show you, Mr. Roy, 2 you're absolutely right, the residents are going to be 3 upset. We have photographs of the bus that uses this 4 route, We have the school bus that uses this route all 5 the time. We have construction workers doing work out 6 here that use this route all the time. 7 But they have been using this route prior 8 to the City even allowing the other gas well plat to go 9 in. And so we don't have a problem with putting in the 10 gate and this fence, we just want you-all to know after we 11 show you these pictures that even if it's not this 12 location, we have photographs that show all up and down t3 Bonnie Brae where the Vintage property is of people who 4 will go every way they can to get over to Bonnie Brae. 15 And so, again, it's a temporary fix. My clients don't 16 have a problem with making it a more substantial ban/er 17 at all. And, again, we have worked with engineering and I 18 think they're okay with this. 19 I just don't know -- how much good it's 20 going to do because people that want to get there, they're 21 going to get there. Now, it may slow down a lot of the 22 smaller vehicles and do the four-wheel drives only, t 23 don't know. But we do have photographs that show the 24 people that use this and the other tracks off of this 25 site. Page 50 COMMISSIONER APPLE: commissioner Watkins. COMMISSIONER WATKINS: Thank you, Madam Chair, and pardon me, for being selfish in a httle personal education, 1 noticed two locations proposed gas well sites. And I recall there was one or two across the mad from Rose Lawn Memorial Park. It would seem that it Page 51 1 thinking about piping it together -- thank you very much. 2 COMMISSIONER APPLE: Commissioner Powell. 3 COMMISSIONER POWELL: Is the use of that 4 road that the gate blocks by other than the oil well 5 people legal or illegal? 6 COMMISSIONER APPLE: Ms. Pa[umbo. 7 MS. PALIJMBO: From my understanding, the 8 road is built to a certain point, and then there's just 9 people using it. That use would be illegal by those 10 people using it. I assume that R.L. Atkins has some kind 11 of agreement with the Vintage to use that piece of 12 property that is not a developed road? 13 MS. MITCHELL: That'S correct. 14 MS. PALUMBO: So in answer to Mr. Mulroy's i15 question, if they're using that piece of property by 16 agreement to access their welt sites, then you could place 17 this sort of condition on it, Just because it's the 18 second property owner does not necessarily mean your 19 burdening hhn since he owns the access to the well sites. 20 COMMISSIONER APPLE: commissioner Mutroy. 21 COMMISSIONER MULROY: If I may, Ms. 22 Palumbo, I agree with that, but I want to underscore, what 23 we're talking about is the enforcement of that already 24 existing agreement. 25 MR. SALMON: One thing I might suggest in Page 52 1 the same vein is that it might almost be considered a 2 violation of the ?D zoning of the Vintage by having a 3 gravel road constructed between the end of Vintage 4 Boulevard and Bonnie Brae with no restricted access that 5 simply allows anybody to drive across because the 6 right-of-way is actually dedicated all the way through. 1 2 3 4 5 6 7 would be easier to have one site and drill two wells or 8 slant or whatever as far as accumulating the gas or oil or 9 whatever might come from them rather than spread thom as 10 far apart as they are. [s there some reason? 11 MS. MITCHELL: [ would like to ask Mr. 12 Mathis to come forward. He's with R.L. Atkins and he's 13 really the expert in this area. 14 COMMISSIONER WATKINS: Thank you. I5 MR. MAX}~£S: YeS. I'm Rex Mathis. I live t 6 at 1992 Sand Flat Road, Jacksboro, Texas. I work for R.L. 17 Atkins Corporation at Sweetwater. 18 In reference to your question, the expense 19 of a deviated hole is substantial. 20 COMMISSIONER WATKINS: IS it? 21 MR. MATHIS: Yes, And this is not really a 22 proven field, so until we get a little bit more into it, 23 then at some future time we may have some deviated holes, 24 and be able to take cam of the extra expense. 25 COMMISSIONER WATKINS: okay. I was just 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 COMMISSIONER APPLE: commissioner Powell. COMMISSIONER POWELL: Getting back to my question, I didn't ask it in its entirety, I guess. If it's illegal, can we write citations there? And if that's the case, seemingly, you know, a few 20 or 30 citations for whatever they're worth would seem to put a halt to it. I've noticed that in my work. I'm just asking if that's something we can do. And it would seem like it would -- once they put a fence up, people who try to break through it or whatever, if they have to pay a substantial fine, they're going to quit that, seemingly. COMMISSIONER APPLE: MS. Palumbo. MS. PALIJMBO: It gets to the point where it could possibly be construed to be an enforcement of something on private property. I mean, once it leaves the roadway and people start driving on somebody's property, it becomes the private property owner's problem. So we could -- I'm not sure that there's a ticket that we could write in this instance. I'd have to research it a little PLANNING AND ZONING MEETING APRIL 9, 2003 Page 49 - Page 52 CondcnscltTM 5 6 7 8 9 10 11 12 t3 14 15 t6 17 18 19 20 21 22 23 24 25 Page 53 bit further. But it's -- and you, perhaps, may know whether there's a ticket for leaving a roadway and driving on private property. COMMISSIONER POWELL: I don't know. This is City property. I'm not getting involved other than that. MS. PALUMBO: well, in the Traffic Code, which you, I believe, might have some experience with I don't believe that there's a ticket that you can issue for driving on private property. COMMISSIONER POWELL: It was just a thought. Thank you. COMMISSIONER APPLE: commissioner Mulroy. COMMISSIONER MULROY: For my clarification, it's the same gas well developer on both properties? MS. MITCHELL: R.L. Atkins is the -- COMMISSIONER MULROY: The same. MS. MITCHELL: Yes. COMMISSIONER MULROY: And, you kl~ow, my experience is before we even had the gas wells, people were jumping the pavement and driving across the open field to Bonnie Brae before this even became an issue with a Special Use Permit. MS. MITCHELL: NOt even at this site, but also down -- all sorts of areas, yes, sir. PLANNING AND ZONING MEETING Page 54 1 COMMISSIONER MULROY: NOW back into 2 proportionality to the enterprise, your client deesn't 3 have a problem with a gate at that end. Does your client 4 have a problem with putting the cable back up at the 5 entering in and going through the fonuer motions of 6 blocking the roadway? 7 MS. MITCHELL: We don't have a problem~ and 8 I'm going to speak for them if that's okay, with putting 9 it back up. But, again, it's going to keep coming back 10 down. Of course, then they'll get to the gate and they'll 11 put it in reverse and be mad and go other ways. But we 12 can do that. I donft think that will be a problem. I 13 mean, the holes are already there. It's just sticking the 14 posts back in and putting some new cable up. Are you 15 talking about, if I may go back to the picture that I had 16 earlier, are you talking about us going ahead and putting 17 in our cable back at this area as welt as this gate right 18 here: is that where you're talking about? 19 COMMISSIONER MULROY: well, thc cable at 20 the western side is already a commitment and that's an 21 enforcement problem, okay? 22 MS. MITCHELL: Right. 23 COMMISSIONER MULROV: If -- and it may be !24 -- I don't even know why they tear it down because you can i25 drive across it unless it's very wet, you just drive APRIL Page 55 1 around it. If it becomes problematic with approval to get 2 an additional gate at the eastern end, where you have it 3 dram, is that problematic with the applicant? I don't 4 know if it makes a lot of sense, but is that something you 5 would agree to do? 6 MR. MATHIS: From what I looked at, I 7 stayed out there about three or four hours yesterday 8 watching everything the way it was going out there, and 9 this part right here, this will actually be a gate with 10 some fence on the northwest side, and then some fence that 11 goes over here. If you take this fence here to this tree 12 linc, there's -- whenever they crone in there and tore all 13 of this out, there was fence, evidently, all the way 14 through. There's a four barbed wire fence along this line 15 with the trees. 16 So we put something across here which they 17 won't get in the mudhole, and then the gates, and then a 18 fence here to this point. This will cut them off here, 19 but there's other places down through here that they can 20 get across. 21 COMMISSIONER MULROY: I understand. But 22 rather than belabor this forever, is that problematic for 23 you to put up what's represented fight there? 24 MR. MATHIS: NO, I don't think so. The 25 cost will probably be around 15, $1,600.00 is what it will 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 Page 56 amount to. COMMISSIONER MULROY: Ali right. Thank you. COMMISSIONER APPLE: IS there any signage currently on that cable? No trespassing, no access, anything? MR. MATHIS: what we did is we just put the cable up. We started off with a two-foot. I was afraid to put up anything too high, afraid somebody would break their windshield and hurt themselves. That didn't last but one night, and they was flat. So we came back and put some about five-foot posts in there with the cable that would hit them about the windshield. But we had T-posts to hold it up with big triangle reflectors on it, so that they could see it. COMMISSIONER APPLE: BUt there's no signage with verbiage that says, no access or something like that? MR. MATHIS: No, we didn't -- I didn't really feel like it -- I know it may have been our place, but I didn't feel like it was our place to put up a sign like that. COMMISSIONER APPLE: It might be helpful. MR. MATHIS: Yes, it might be helpful. COMMISSIONER APPLE: It might be helpful. Ms. Palumbo. 2OO3 Page 53 - Page 56 CondenscltTM Page 57 1 MS. PALUMBO: That's what t was going to 2 say, when you asked me about the enforcement, what is the 3 enforcement that we can do as a City, if you will put that 4 no trespassing sign and there's some specific things that 5 you have to do under State law that I can give to you if 6 Commissioners want to write that into the PD, then we 7 could come and write tickets for trespassing, if that's 8 made clear to the people driving on the property. 9 COMMISSIONER MULROY: The SUP or the PD? 10 MS. PALUMBO: The SUP, make that a 11 condition on the applicant to post the no trespassing 12 signs according to state law. For some reason I believe 13 that they have to be in purple. The Legislature wrote 14 that in a couple of sessions ago. :15 MR. MATHIS: And you're talking about this 16 to be on the road or on the cable or on the gate. 17 MS. PALUMBO: On the sign. OB the sign -- 18 I'll get the specific statute and give it to you. 19 COMMISSIONER APPLE: commissioner Johnson. 20 COMMISSIONER JOHNSON: Thailk you. The 21 private road -- the private property that the non standard 22 road is on right now, who does that belong to? 23 MS. MITCHELL: That belongs to a company 24 called Denton C.J.W. 25 COMMISSIONER JOHNSON: DO~S the owner of Page 59 1 relieves us from our obligation to try to prevent access 2 to Bonnie Brae, 3 COMMISSIONER APPLE: Commissioner Powell. 4 COMMISSIONER POWELL: I'm guessing that the 5 people that are going to use this road, this private road 6 are not the only ones that are going to go through that 7 low water crossing on Bonnie Brae. Other folks are going 8 to do that, too, that never go on that private road. And 9 werre not stopping them, so I don't understand the 10 difference. 11 COMMISSIONER APPLE: Mr, Reichhart. 12 MR. REICHHART: Those other folks didn't 13 come forward for a planned development approval nor 14 platting approval to access Bonnie Brae with a new 15 development and a -- I'm not sure of the numbers, but a 16 few hundred single family residential houses potentially 17- accessing that road. At that time is when that condition 18 was brought forward. 19 It wasn't a condition that we just said, no 20 one can have access to Bonnie Brae. It was a specific 21 subdivision that was proposing access to Bonnie Brae with 22 a future commercial development, single family, some 23 attached multi-family development that added to the 24 numbers that were doing that. And at that time is when 25 that condition was placed on this specific property.. Page 58 1 that proper~y have any problem with that road being there? 2 MS. MITCHELL: NO, I don't believe that the 3 owner does have a problem with that. They had made an 4 agreement with R.L. Atkins to be able to use that to get 5 to their site across to the ranches. 6 COMMISSIONER JOHNSON: We know that that 7 road is being used today by alt kinds of different people. 8 We are pretty sure that if we put a barrier up, it' s 9 probably going to last a day, and then it's going to be 10 used again by the sm~e people. 11 So, you know, my question is, who's hurt? 12 Why are we concerned about it other than we're driving on 13 a road which doesn't meet anybody's standards, but there 114 are private roads all over the State that don't meet 15 anybody's Code. No harm, no fowl, it secures to me. 16 COMMISSIONER APPLE: Mr. Reichhart. t7 MR. REICHHART: Ollr concern is a known 18 safety hazard with the low water crossings on Bonnie Brae 19 and that during a flood event, someone could try to go 20 through those low water crossings and get swept away. 21 COMMISSIONER JOHNSON: well, they're doing 22 that today, and we've already determined that they're 23 probably going to do it tomorrow if we put the barrier up 24 today. 25 MR. REICHHART: well, t don't think that Page 60 i COMMISSIONER APPLE: MS, Palumbo. 2 MS. PALUMBO: YOU could also make it a 3 condition of the suP if you want them to mark that low 4 water crossing if you think that that's dangerous, if 5 they're creating a dangerous condition through the use of 6 that private access, you could require that in the suPr 7 COMMISSIONER APPLE: commissioner Johnson. 8 COMMISSIONER JOHNSON: That sounds more 9 reasonable to me is to put a sign up warning about the low 10 -- the danger with the low water passing instead of ! 1 putting a barrier up that we know is not going to stay up. 12 MS. MITCHELL: Madam Chair, could y'a[1 13 clarify where you're talking about the low water crossing 14 signage. 15 COMMISSIONER APPLE: Mr, Reichhart. 16 COMMISSIONER JOHNSON: Put your chart back 17 up, okay. Instead of putting your barrier up where the -- 18 yes, where that road ties into Bonnie Brae, put the sign 19 right there, so that anybody that's going north will see 20 that they're heading toward a low water area, and that in 21 certain conditions, they're going to get down there and 22 run into a creek. 23 MS. MITCHELL: If I may since -- may I ask 24 a question? 25 COMMISSIONER APPLE: Sure. PLANNING AND ZONING MEETING APRIL 9, 2003 Page 57 - Page 60 CondenseltTM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 t8 19 20 21 22 23 24 25 Page 61 MS. MITCHELL: The only concern that i have with that is that I think that that's probably the reason why -- I mean, everybody is cutting across here, but a lot of the folks actually are coming down to the south. I mean, there's a low water crossing down there. It's not as dangerous, but I'm afraid if we put a sign up there, then that's going to invite the public or let the public know that it's okay for you to use this but there's a low water crossing. COMMISSIONER JOHNSON: Put it both directions. I mean, people -- like Mr. Powell has already said, people will drive up and down Bonnie Brae anyway that are not even going into thc Vintage, and I'm one of them that has done that. But the one time when I tried going out there, I noticed that I probably shouldn't go there because I was going to get stuck down there, and didn't go. So, you know, you really are concerned more on Bonnie Brae with traffic other than just the traffic from the Vintage. MS. MITCHELL: well, just to kind of give a little history of this site, the City has been wanting to close Bonnie Brae for quite some time because of the dangerous situation. They have -- I represent property Page 63 PLANNING AND ZONING MEETING 19 20 21 22 23 24 allowance for $1,600.00 available to the City to either construct a barrier or put up signs, whichever solution they chose at a later date as part of your condition? MS. MITCHELL: I believe that we can do that. Again, tile only concern would be is we'd neexl to look at it from a legal standpoint on the type of signs. owners that are located here, also, the Ranches at Hickory Page 62 I Creek as well as the Joab site across the street. And all 2 of the development that is going through the process right 3 now, this is an issue that is being discussed regardless 4 of whether or not we're coming in with'the gas well plat. 5 COMMISSIONER JOHNSON: Right. Bonnie Brae 6 -- closing Bonnie Brae has nothing to do with the gas 7 wells -- 8 MS. MITCHELL: Right. And the ultimate -- 9 I mean, the ultimate would be that, you know, we go ahead 10 and construct Vintage Boulevard all the way across. We're 11 getting there. We're about this close. It would be great 12 if the City could go ahead and close off Bonnie Brae north 13 of the ranches where thc low crossing is. I don't think 14 that we'd have a problem if the City wanted to put a sign 15 up on Bonnie Brae. I'm just very concerned if we put a 16 sign up that is close to where ttris road is that that is 17 -- that's almost telling the public, it's okay to use this 18 road. 19 As Dottie Palumbo was saying, you know, it 20 is a liability that's placed on the owner of the property. 21 This portion right here is right-of-way. This portion 22 right here, though, is private property. So I just have 23 concern about that. And don't know if my -- if the owner 24 would have a problem with almost saying, it's okay to use 25 it, but you need to be warned, there's low water AP~L9 25 COMMISSIONER MULROY: NO, Page 64 1 Ms. MITCUEr. L: ~rn I misunderstanding? 2 COMMISSIONER MULROY: I'm saying in order 3 to move this case along -- 4 MS. MITCHELL: okay. 5 COMMISSIONER MULROY: FOt' condition number 6 one rather than us try to tie down all of the nuances and 7 all of the legalistic theories, if I just make condition 8 number one that the applicant will provide to the City an 9 allowance up to $1,600.00 that the City may either 10 construct a barrier or install signs of their choosing, 11 period. 12 COMMISSIONER APPLE: MS, Palumbo needs to 13 address Con'anissioner Mulroy's conuzaent. 14 MS. PALUMBO: I think that the legal t 5 deparmzent would probably have to do some research o, that 16 accepting of the money, and whether that would create any 17 liability on our part for what's going on on that private 18 access easement. 19 So [ would caution you not to place that as 20 a condition and, perhaps, since this doesn't appear to be 21 a case that -- where you're having so much trouble with 22 the conditions, maybe staff needs to study this a little 23 bit more. 24 MS. MITCHELL: Mr. Mulroy, would it be -- 25 COMMISSIONER MULROY: That's why I was 2003 Page 61 - Page 64 1 crossings. 2 COMMISSIONER JOHNSON: [$ your barrier 3 going to change that? 4 COMMISSIONER APPLE: Mr. Reichhart. 5 MR. REICHHART: If W~ don't have a barrier, 6 the road is not in compliance with the planned 7 development, and we would have to remove the road. I 8 mean, the only reason we allowed the orig/nal gas well to 9 access Bonnie Brae from that gravel mad is because they 10 did have a barrier and we felt it did meet the conditions 11 in the planned development. Without a barrier, there 12 would not be a read there. 13 COMMISSIONER APPLE: commissioner Mukoy. 14 COMMISSIONER MULROY: Yes. I have a 15 question of the applicant. Okay, applicant, in order to 16 move this forward and t have had an economic consideration 17 of about $1,600.00, for the barrier, would it -- would you 18 be in concurrence with the condition that you would make CondcnseltTM 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 65 making an allowance so you could study it and apply that money where you thought most appropriate. MS. MITCHELL: Can you do it if it's on right-of-way, public right-of-way? MS. PALUMBO: Can we take -- maybe, perhaps, we might want to take a break to look at this issue. COMMISSIONER APPLE: I guess [ would be moro interested in maybe continuing this rather than taking a break. We've had bad experiences in the past when we did that. What are the Commissioners -- what is your feeling? COMMISSIONER POWELL: I have a feeling I'd like to express. My light's tit as soon as you're ready. COMMISSIONER APPLE: There are several in front of you. I think we're going to -- how do the Cormuissioners feel about continuing this item? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Page 67 MS. MITCHELL: That's fine. COMMISSIONER HOLT: And access only by the company. COMMISSIONER APPLE: Thank you, Commissioner Holt. Commissioner Watldns. COMMISSIONER WATK1NS: Thank you, Madam Chair. In reading the staff findings, the proposed use is compatible with the Denton Plan and Denton Development Code. The applicant has met all requirements for a Specific Use Permit, number two, the establishment of two gas well sites at this location will not have any detrimental impacts on the surrounding area. With that, look at the school bus and it scares me to death. But that's not what these people are doing, they want to drill two gas wells, I would like to move approval with the five staff recommendations at the COMMISSIONER POWELL: I'd just as soon finish this up, get it over with. COMMISSIONER APPLE: All right. Commissioner Holt. COMMISSIONER HOLT: My concern is if you take away the gates and the -- what is the liability to the owner of the property if we -- because the minute you do that, it's going to become a road and everyone is going to use it. This -- at least with these, it's telling Page 66 1 people it's not a public road and it is giving them access 2 which they need. 3 And if we put the signage up also, I think 4 that would be our best recourse because if we take it all 5 down and just open it up, it's just going to be -- 6 everyone's going to use it. It's just going to be a 7 public road. And I -- what is tho liability to that, that 8 the owner has of the land or the City has that it is being 9 used as a public road. I don't know what it is. 10 COMMISSIONER APPLE: MS. Palumbo, could you 11 answer her? 12 MS. PALUMBO: Right now it's a private 13 access easmnent. No matter how many people get on it, 14 doesn't make it a public road. It's only a public road 15 when it's accepted by the City for public use. And so in 16 it's present condition, it is not a public road. We have 17 [[ttIe, if any, enforcement power over that private access 18 easement unless it's marked no trespassing, and it's 19 barricaded according to State law. 20 COMMISSIONER HOLT: well, then it seems 2t that we should do that. Then the only person that has 22 access to it, then we'll have some teeth .in this. 23 MS. MITCHELL: Are you talking about the no 24 trespassing sign? 25 COMMISSIONER HOLT: NO trespassing. 17 bottom. 18 COMMISSIONER APPLE: unfortunately, we are 19 still in the public hearing. 20 COMMISSIONER WATKINS: oh, okay. I'm 21 sorry. 22 COMMISSIONER APPLE: That's okay. Hold 23 that thought. Commissioner Poweli. 24 COMMISSIONER POWELL: It' s my opinion' that 25 we are beating a dead horse and we have filleted it by Page 68 1 this time. The developer is in agreement with these 2 conditions, I guess, with the possible exception of nmnber 3 rivet 4 MS. MITCHELL: That's correct. 5 COMMISSIONER POWELL: ^nd I think we should 6 settle number five and g~t on with this. If they're in 7 agreement with the pipe fence, let's get it over with. 8 We're beating it to death here. 9 COMMISSIONER APPLE: Thank you, 10 Commissioner Powell. Commissioner Roy. 11 COMMISSIONER ROY: [ aglls¢ with that 12 comment, but I don't believe that the barrier is going to 13 work. I think that it's a waste of effort and time and 14 money. Perhaps, we should also include some more official 15 signs. 16 I didn't see any official city signs 17 saying, do not enter; access beyond this point is not 18 allowed; it's against the law or something confing on where 19 Vintage ends and -- the pavement of Vintage ends and where 20 the entrance from Bonnie Brae to the gravel road, mayl~e 21 there should be something -- some official po~ted signs 22 there. 23 COMMISSIONER APPLE: I think Ms. Palumbo 24 can address that. She's mentioned previously that it's 25 not the City's, and so -- PLANNING AND ZONING MEETING APRiL 9, 2003 Page 65 - Page 68 CondenseltTM 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 69 us. P^LUMBO: ^nd Dave Salmon may be able to address this a little bit more when we -- when a road ends, you know, are there any more traffic safety devices that we can place in this situation that the City is empowered to do? MR. SALMON: Well, as you could tell in a couple of Ms, Mitchell's pictures, there is an appropriate end of road barricade that meets the standards of the Manual of Uniform Traffic Control Devices at the end of the pavement. But what we've got here is a a gravel road that has been constructed that comes off on the side and goes out and around on to private property. And I think what we're talking about or what Ms. Palumbo has suggested is that the property be posted as private property, no trespassing, so that the City can help enforce people that arc trespassing and using the road for purposes that it was not intended for. COMMISSIONER APPLE: Thank you. This is a pubhc hearing, and we do have a card from a gentleman who wishes to speak, a Rex Mathis. MS. MITCHELL: Hers already been up here speaking. COMMISSIONER APPLE: okay. So he's done. Is there anyone else in the audience who wishes to address Page 70 1 this Agenda item? Seeing no one coming forward, I will 2 close the public hearing. Commissioner Powell. 3 COMMISSIONER POWELL: Question for the 4 Developer. What is your heartburn with number five? You 5 said there was something wrong with number five. 6 MS. MI?Crier, L: Right. Having to do a 7 security fence and a landscaped screen being installed 8 around the well site, and at this point I may have to ask 9 you-ail for a little bit of history, but it's my 10 understanding that when I called Larry and asked him about 11 these because my initial reaction was, I know that these 12 originally came from the Ragel case because there was a 13 whole lot of opposition to that case. And I saw it kind 14 of as a diff~ent situation than what we have now. And 15 Larry explained to me that these are the conditions that 16 you-all have been placing on the other gas well plats. 17 I ran into the gentlemen who did the other 18 two gas well plats that you-all had. And he had, instead 19 of it being a landscaped screen, a removable fence, 20 because, you know, this is going to be something that -- 21 and I don't kmow if the landscape screen you wanted around 22 the tanks, I don't know exactly where the landscape screen 23 is supposed logo, but I understand that there was another 24 condition that got changed that allowed removabfe fence 25 instead of a landscaped screen, and you-all may want to PLANNING AND ZONING MEETING Page 71 1 elaborate on that a little bit more. 2 COMMISSIONER APPLE: Mr. Reichhart. 3 MR. REICHHART: NO. And that is the case 4 as I explained, that there has been only one case that has 5 gone on to City Council and that was the Ragel case that 6 did have the landscape screen that was required and that 7 the Planning and Zoning Commission did on the last case 8 recmxm~end the solid wood screen removal fence type of 9 screening. And that*s the case that did go to City 10 Council, but it's coming back, so there hasn't been any 11 definitive answers yet as to what type of screening would t 2 ever -- you know, in what type of cases would what type of 13 screening would be appropriate. 14 That was our first original condition. By 15 all means, that can be changed to a movable fence or 16 whatever is appropriate that the Commission deems t7 appropriate for this case, 18 COMMISSIONER APPLE: conanissioner Watkins. 19 COMMISSIONER WATKINS: xhank you, Madam 20 Chair. I think what -- I would tike to make a motion that 21 this be approved with the five recorranendations, staff 22 reeormnendations. I would like to leave off the gate 23 return the cable and post a sign, return the cable barrier 24 that we had originally that was dug up. 25 The landscape, ! feel that the trees in APRIL 9 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2003 Page 72 this location will be difficult to water or keep alive, and so I would like an eight-foot wooden screening that could be picked up when they come back to redrill or whatever will work and then set fight back in place. That wasn't a very clear motion, was it? COMMISSIONER MULROY: well, I'm going to second it and the signage will be as previously discussed the legal requirements of the State. Thank you. MS. MITCHELL: Madam Chair, can you put soraething in there or consider something as to when you would like to have the fence go up so ]~ can have clarification so that we know when the City wants us to put the fence up, at what point. COMMISSIONER APPLE: Commissioner Watkins, would you like to address that? COMMISSIONER WATKINS: when the wells are drilled. MS. MITCHELL: when drilling begins? COMMISSIONER WATKINS: When you're through with it, yes. MS~ MITCHELL: Okay. COMMISSIONER APPLE: WaS everyone clear on the motion? Commissioner Roy. COMMISSIONER ROY: I just just want to be sure that the correction that Cmrmfissioner Mulroy Page 69 - Page 72 Condenselt m 1 2 3 4 5 6 7 8 9 10 Il 12 13 14 15 16 17 18 20 2t 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 73 mentioned on item 2 was incorporated in the motion or was made pr[or to the motion. COMMISSIONER MULROY: YeS, fracking. COMMISSIONER APPLE: Mr. Reichhart. MR, REICHHART: If I understand, number one is going to be replaced with something to the effect of post and maintain a no trespassing sign as legally required by State law on the existing cable bamer? COMMISSIONER WATKINS: Yes, please. COMMISSIONER APPLE: ^11 right. We have a motion and a second. Any discussion? I only have one comment, I would prefer the vegetative screen around the fencing, but I will vote in favor of the motion. Vote, please. Motion carries 7-0. COMMISSIONER MITCHELL: Thank you. Page 74 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 18 19 20 21 22 23 24 25 PLANNING AND ZONING MEETING APRIL 9, 2003 Page 75 Page 76 Page 73 - Page 76 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A GAS WELL DEVELOPMENT ON APPROXIMATELY 95 ACRES OF LAND GENERALLY LOCATED EAST OF THE INTERSECTION OF BONNIE BRAE AND THE FUTURE EXTENSION OF VINTAGE BOULEVARD IN THE WILLIAM ROARK SURVEY, ABSTRACT NO. 1087, WITHIN A NEIGHBORHOOD RESIDENTIAL 6 (NR~6) 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. (Z03-001 I) WHEREAS, Ken Seligman, R.L. Adkins, has applied for a specific use permit for a gas well development within a Neighborhood Residential 6 zoning district classification and use designation on approximately 95 acres of land generally located east of the intersection of Bonnie Brae and the future extension of Vintage Boulevard, as more particularly described in Exhibit"A' attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on April 9, 2003, the Planning and Zoning Commission recommended approval of a Specific Use Permit for a gas well development; and WHEREAS, the City Council finds that the Specific Use Permit is consistent with The Denton Plan; and WHEREAS, in accordance with Subchapter 6 of the Development Code of the City of Denton, Texas, the City Council finds that all of the following conditions exist: The 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 vicinity; 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 necessary supporting facilities have been or will be provided; and The design, location, and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; and Adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; and Directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and There is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. A specific use permit to allow a gas well development w/thin a Neighborhood Residential 6 (NR-6) zoning district classification and use designation on the Property is hereby approved, subject to the following conditions: 1. All residences within 500 feet of the well site will be noticed 24 hours prior to the fracing of the wellhead. 2. Fracing operations are restricted to daylight hours only. 3. All structures shall have a maximum height of 16 feet. 4. An 8 foot wooden fence w/Il be installed on steel post around the well site to create a visually appealing screen for the well site. 5. The barricade located at the end of Vintage Blvd. shall be improved and maintained by the developer to prevent access to the private drive connecting Vintage Blvd. To Bonnie Brae. Conspicuous no trespassing signs shall be posted and maintained by the developer at said location, that are a sufficient warning to enable the prosecution of trespass violators. 6. Development and operation of the gas well development shall be in accordance with the site plan on file in the City Planning Department, a copy of which is attached hereto and made a part hereof as Exhibit "B". SECTION 3. Notwithstanding the description of the Property, the property being rezoned includes all property to the centerline of all adjacent street rights-of-way. SECTION 4. The City's official zoning map is amended to show the change in zoning district classification. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a dally newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2003. PAGE 2 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: PAGE 3 Exhibit A- The Meadows at Hickory Creek 95,559 acres situated in the WILLIAM ROARK SURVEY, Abst. No. 1087, Denton County, Texas, being all that certain tract of land conveyed to Denton County Joint Venture~ by deed recorded in Volume 2399, Page 108, Deed Records, Denton County, Texas, said 95.559 acres being more particularly described as follows: Beginning at a 1/2" iron found in Bonnie Brae Street (R.O.W. varies) .at the northwest comer of said Denton County Joint Venture tract and the southwest comer of that certain tract of land conveyed to Blew Time Investments Corporation, by deed recorded in Volume 2399, Page 112, Deed Records, Denton County, Texas, said point being South 00 degrees 27 minutes 19 seconds West, 1354.49 feet from a 1" iron found at the called northwest corner of said ROARK SURVEY; THENCE North 89 degrees 08 minutes 48 seconds East, along the common line of said Denton County Joint Venture and New Time Investments Corporation tracts, 3199.85 feet to a 1/2" iron found at the northeast comer of said Denton County loint Venture tract, in the west tine of that cea~ tract of land conveyed to V.D. Butch, by deed recorded in Volume 288, Page 137, Deed Records, Denton County, Texas, THENCE South 00 degrees 19 minutes 51 seconds West, along tho common line of said Denton Coun{y Joint Ventare tract and said Butch tract, 1324.95 feet to a railroad cross tie found at the southeast comer of said Denton County Joint Venture tract; TttBNCE South 89 degrees 49 minutes 12 seconds West, continuing along the common line of said Denton County Joint Venture tract and said Butch tract, 1500.72 feet to a 1/2" iron found at the most westerly northwest comer of said Butch Iract and the northeast comer of that certain tract ofland conveyed to Robert Coston et al, by deed recorded in Clerks File No. 934)089896, Deed Records, Denton County, Texas; THENCE l~Iorth 89 degrees 29 minutes 08 seconds Were, along tho common line of said Denton County Joint Venture tract and said Coston et al, tract, 1700.62 feet to a 1" iron found in the west line of said Bonnie Brae Street; THENCE North 00 degrees 25 minutes 34 seconds East, along said Bonnie Brae Street, I266.79 feet to the POll~ OF BEGINNING and containing 95.559 ac, res of land, more orless. Exhibit B :{ J.S 3V~113 31NNO8 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: May 13, 2003 Planning and Development Department Jon Fortune, Public Safety and Transportation Operations SUBJECT Z03-0012 (Meredith No 1) Hold a public hearing and consider adoption of an ordinance regarding a Specific Use Permit for a gas well site. The approximately 17.3 acre property is in a Neighborhood Residential 6 (NR-6) zoning district and is generally located south of Hickory Creek Road approximately 1000 feet west of Teasley Lane. The Planning and Zoning Commission recommends approval (7-0) with conditions. BACKGROUND Applicant: Jerry Stokes Colleyville, TX The applicant has submitted a request for a Specific Use Permit (SUP) proposing one gas well on the property. The gas well regulations allow gas well sites only with the approval of a Specific Use Permit in the Neighborhood Residential 6 (NR-6) zoning districts. Public notification and property owner responses are provided in Attachment 3. As of this writing, staff has received four responses in favor, none in opposition, and one neutral to the request from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval of the Specific Use Permit as proposed by the applicant (7-0), 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. ESTIMATED PROJECT SCHEDULE The property will be required to be platted prior to issuance of any permits. PRIOR ACTION/REVIEW The following is a chronology of Z03-0012, commonly known as Meredith No. 1: Ordinance 2002-040, adopted February 20, 2002 placed the subject property Neighborhood Residential 6 (NR-6) zoning district and land use classification. Prior to the adoption of the Development Code, the property was zoned Agricultural (A). in the No Neighborhood meeting was held. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Map) 4. Site Plan 5. Planning & Zoning Commission Minutes, March 26, 2003 6. Ordinance Prepared by: Wes Morrison Planner I Respectfully submitted: RLA, AICp Assistant Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The subject property is zoned Neighborhood Residential 6 (NR-6), and is surrounded by residential zoning districts. The applicant must obtain the approval of a Specific Use Permit (SUP) to allow for the construction of a gas well site. The SUP is required in the Neighborhood Residential 6 (NR-6) zoning district. The applicant is requesting the placement of a gas well for drilling on the property. Existing Condition of Property The subject property is vacant. The property contains an Environmentally Sensitive Area (stream buffer) that exists primarily in the southeastern section of the property approximately 400 feet to the east of the well site. Adjacent Zoning & Land Uses: North: South: East: West: Neighborhood Residential 4 (NR-4) zoning district - vacant land Neighborhood Residential 6 (NR-6) zoning district - agricultural and single family uses Neighborhood Residential Mixed Use (NRMU) and Neighborhood Residential 4 (NR-4) - vacant land single-family uses Neighborhood Residential 2 (NR-2) zoning district - agricultural and single family uses No structures are located within 500 foot of the proposed gas well site. Comprehensive Plan Analysis The subject site is located within the "Neighborhood Centers" future land use area. These areas may develop in conventional patterns or may be developed in a pattern of 'neighborhood centers'. Neighborhood centers are oriented inwardly, focusing on the center of the neighborhood and containing facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elementary school. 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 Access to the property will be made from Hickory Creek Road. Hickory Creek Road is identified in the Denton Mobility Plan as a Primary major arterial. DevelopmeN Code / Zoning Analysis The applicaN has proposed the construction of a gas well site. The Neighborhood ResideNial 6 zoning district allows gas well sites only with the approval of a specific use permit. All gas well sites shall comply with the Subchapter 22 of the DevelopmeN Code that pertains to gas well drilling and production. Section 35.6.5 of the DeNon DevelopmeN 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; The operation of the gas well site should not diminish or impair property values in the immediate vicinity, as the proposed location of the wellhead is eNirely located on the subject property. 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 developmeN of surrounding property. 3. The adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; All necessary supporting facilities will be provided. 4. The design, location and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; All proposed parking areas and driveways meet the 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 will be taken. With the exception of drilling and fracing the well, no noise, odor or fumes will be produced. Subchapter 22 of the DevelopmeN Code addresses the issue of nuisance preveNion measures. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and Proposed lighting will not affect neighboring properties. Subchapter 22 of the DevelopmeN 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, future single-family developmeN is planned in the area. Another option could include paining 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 any detrimental impact on the surrounding area. 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 NORTH ESA MAP Scale: None SITE Scale: None ATTACHMENT 3 NORTH Public Notification Map site NR-6 gas well PD NRMU-12 Limits of Notification Scale: None Public Notification Date December 28, 2002 200' Legal Notices* sent via Certified Mail: Number of responses to 200' Legal Notice · In Opposition: 0 · In Favor: 4 · Neutral: 1 Percent of land within 200' in opposition: 0% 9 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Attachmcrtt sa~g!aossv " I x, T'EASLEY LANE ('F".I¢. 2181) 100' R,O.~. B;78.76' \ \ CondcnseItTM 1 2 3 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 22 23 24 25 1 2 3 4 5 6 7 8 9 10 1f 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 45 COMMISSIONER APPLE: The next item on our Agenda is also a public hearing. And Wes Momson with the City Planning staff will present. I'll open the public hearing. MR. MORRISON: Good evening. Just a second. I'm figuring this out here. Okay. Sorry about that. The applicant is requesting a Specific Use Penuit for a gas well site within a Neighborhood Residential 6 Zoning. The property is located at the'southwest comer of Tcasley Lane and Hickory Creek. To the north of this site is currently vacant land that's zoned Neighborhood Residential 4. Approximately 122 feet south of the site is an electric substation that is operated by Denton Municipal Electric. To the east and west of this site, it's vacant land and single family uses. Currently, the property -- the property owners have been notified within 200 and 500 feet of the site. And at this time staff received four responses from property owners. One neutral to the request and three in favor. Staff recommends approval of the request based on the following conditions. All property owners located within 500 feet of the site should be notified within 24 hours in advance prior to the fracking of the Page 46 well head. And a blockade-style fence should be constructed on steel posts around the gas well site to act as a screen for the site. Are there any questions? Commissioner Johnson. COMMISSIONER JOHNSON: There's a well right Page 47 i MR. REICHHART: I'm -- the fence to the 2 north most likely is what they use right now is a chain 3 link fence. And there probably isn't any screening 4 requirements, any screening done at all. 5 The reason we put that -- those conditions, 6 at least for your consideration, is based on the last suP 7 two weeks ago that we had. Those were the exact 8 conditions. 9 Now, given there are different 10 circumstances, and if y0u'll look to the right of this 11 site, you'll see the NRMU and then the NRMUq2 property. 12 That's the one that we had the recent gas well plat where 13 we had those conditions on there. So we thought that for 14 consistency sake, we would just at least throw them out 15 there for your consideration. 16 COMMISSIONER APPLE: Thank you. 17 Commissioner Roy. 18 COMMISSIONER ROY: I have two -- or one 19 question and one comment. The red is the child care 20 center; is that correct? 21 MR. MORRISON: NO, sir. The -- 22 COMMISSIONER ROY: At the comer along 23 Teasley Lane ~- 24 MR. MORRISON: It's the comer right -- the 25 red just south of the red, there's a long rectangular Page 48 yellow box -- COMMISSIONER ROY: oh, yes, okay. MR. MORmSON: That's the child care center. COMMISSIONER ROY: Okay. The second is on across the street from this? MR. MORmSON: North of Hickory Creek? COMMISSIONER JOHNSON: Yes. MR. MORRISON: Yes, sir. COMMISSIONER JOHNSON: what sort of stockade fence is going around that one? MR. MORRISON: My understanding is -- and 6 7 8 9 10 11 12 your recommended conditions -~ I'll get the word out here. Itmu 1, all property owners within 500 feet; is that what we've been saying? Or all residences within 500 feet? MR. MORR1SON: I -- that's a good question. I believe it's been all property owners. COMMiSSiONER ROY: Isn't it tree that the property owner could very well be in Dallas? I think the the same applicant is doing that one, so that may be more of a question directed toward them. First off, that that's in a Neighborhood Residential 2 Zoning District, and they're not required to get an suP. COMMISSIONER JOHNSON: wouldn't it look kind of silly to have one fight across the street from another one and one maybe didn't have anything and the other one had a really nice screening fence around it? MR. MORRISON: My understanding'is that there is a fence them, but I know that we didn't require them to put that there. COMMISSIONER JOHNSON: Thank you. COMMISSIONER APPLE: Mr. Reichhart. 13 14 15 t6 17 18 19 20 21 22 23 24 25 intent is that the residences in the area would be notified. MR. MORRISON: That's a very good point. I think the way the wording's been is that all property owners, though. COMMISSIONER ROY: would you say that again, please? MR. MORRISON: I think the wording has been all property owners, but I understand where you're coming from with residences. COMMISSIONER ROY: okay.' Thank you. COMMISSIONER APPLE: Commissioner Johnson. COMMISSIONER JOHNSON: This is a curioskty PLANNING AND ZONING COMlVflSSIONER MARCH 26, 2003 Page 45 - Page 48 CondcnscItTM Page 49 I -- is there any kind of required screening around the 2 substation? 3 MR. MORRISON: There is none, not that I'm 4 aware of. 5 COMMISSIONER JOHNSON: And that's closer to 6 Hickory Creek than the welt site, right? 7 MR. MORR[SON: NO, Sir, l believe the well 8 site would be closer to Hickory Creek because the 9 substation is about 122 feet south of the well site. 10 COMMISSIONER JOHNSON: okay. The 11 substation is close, to the developed area, though, right? 12 MR. MORRlSON: Yes, sir. 13 COMMISSIONER APPLE: Thank you. 14 MR, MORRISON: Thank you. 15 COMMISSIOhUm APPLE: IS the applicant here? 16 MR. COLEMAN: oood evening, Madam Chairman 17 and Commissioners. My name is Bill Coleman with Coleman 18 and Associates Land Surveying, 300 North Elm here in 19 Denton, Texas. And I am hero on behalf of the applicants 20 to answer your questions. 21 Since I was just here at the last meeting 22 and we went through this across the street~ I'll keep my 23 comments short. I do have, if we can get on the picture, 24 what we think your idea of the stockade-type fencing might 25 be and what affect it would have versus the pictures we Page 50 1 showed at our last meeting. 2 There you go. I believe this is what you 3 had in mind. And we're agreeable to do this. As you can 4 see, we went out and took pictures of it around some of 5 the other gas wells. 6 As to the comments that were raised and 7 addressed to staff, I will submit them. The gas well is 8 -- won't be closer to the road than the substation. It's 9 right adjacent to the substation site. The -- and, yes, 10 it is between the well and most of the development that 11 adjoins this site. The property owner is present as well :12 as a representative from Mid-COntinent Geological, the I 13 leaseholder. And the surface owner is in favor of what i 14 we' re doing out there. 15 The only other issue I would like to raise 16 addresses the 500 foot notification and is in -- in the 17 case of these, not so much this one, but the forester 18 across the street, it's a long narrow tract, and the well 19 is at one end. If we notify all of the residences within 20 500 feet of the perimeter of the property or within 500 21 feet of the well head would be a point that we would tike 22 to see clarified, if we're going to have this 23 clarification. 24 That concludes my remarks and I'll be 25 available for questions if you have any. 5 6 7 8 9 10 11 :12 13 14 15 16 t7 18 19 2O 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 5 6 7 8 9 20 21 22 23 24 25 Page 51 COMMISSIONER APPLE: we'll let Mr. Reichhart answer your question. MR. COLEMAN: okay. MR. RE[CHHART: unless otherwise directed by Planning and Zoning Conunission, we would say it would be 500 feet of the well head, ~aR. COLEMAN: of the well head? MR. REICHHART: Yes, sir. COMMISSIONER APPLE: commissioner Mukoy. COMMISSIONER MULROY: Yes. Thank you, Madam Chair. Mr. Coleman, first question is for clarification for the Commission, the same leaseholder indicated last time that they did not have a problem with putting up thc visual barrier and I'm assuming that holds true since you're bringing pictures? MR. COLEMAN: Y~,~. [~e's 'title one that provided these pictures, yes. COMMISSIONER MULROY: NOW, could we put the good side out on the fence next time? And our point last time was something like this would be removable to facilitate your equipment going in and out? MR. COLEMAN: YeS. And we have looked into it since the last time we met, that's the reason for the pictures. Chair, if height is Page 52 COMMISSIONER MULROY: Thank you. COMMISSIONER APPLE: Thank you. COMMISSIONER POWELL: Excuse me. Madam I may. COMMISSIONER APPLE: cormuissioner Powell. COMMISSIONER POWELL: Mr. Coleman, what that fence? MR. COLEMAN: That appears to be eight COMMISSIONER POWELL: And that's not objectionable to you, eight feet, because it doesn't say here in these conditions the height. And I'd like to add that, if I may, without -- if it doesn't cause you any heartburn, or at least not too much heartburn, to say at least an eight-foot fence. MR. COLEMAN: That is agreeable with the applicant. COMMISSIONER APPLE: Thank you. Is there anyone in the audience who wishes to address this item? Anyone in the audience who wishes to address this item? We have no cards to speak. Does staff have any further comments? I'll close the public hearing. COMMISSIONER MULROY: Madmu Chair, I'm ready to make a motion. PLANNING AND ZONING COMMISSIONER MARCH 26, 2003 Page 49 - Page 52 CondenseltTM · Page 53 1 COMMISSIONER APPLE: commissioner Mulroy. 2 COMMISSIONER MULROY: I move approval of 3 the sup and I want to modify the staff recommendations. 4 The number one recommendation will change "property" to 5 "residences." -And number two recommendation will insert a 6 minimum of eight-foot blockade fence, good side out. 7 COMMISSIONER APPLE: We have a motion. 8 COMMISSIONER POWELL: second. : 9 COMMISSIONER APPLE: And a second. : 10 Commissioner Roy. i 11 COMMISSIONER ROY: I am not sum this is i12 necessary, but since we are seeing these comments time and !I 3 time again here now, thank goodness we're getting this i 14 development. 15 I wonder if we should go ahead and amend 16 item one to make it clear all residences within 500 feet 17 of the well head. Perhaps that's not necessary, but I -- 18 we keep reusing this language and maybe staff could 19 clarify that for me. 20 COMMISSIONER APPLE: commissioner Mukoy. 21 COMMISSIONER MULROY: vll be glad to add 22 that to condition number one. It shall read, all property 23 owners within -- all residences within 500 feet of the 24 well head are notified, et cetera, et cetera. Thank you. 25 COMMISSIONER APPLE: will you agree to Page 54 1 second with that amendment? 2 COMMISSIONER POWELL: Yes, I would. 3 COMMISSIONER APPLE: Thank you. We have a 4 motion and a second. Is there any discussion? Hearing 5 none, vote, please. Motion carries 7-0. 6 If them are no items for future business 7 -- Commissioner Mutroy. 8 COMMISSIONER MULROY: Yes, ma'am. Thank 9 you. I would strongly suggest for future business we have 10 a Work Session item on the legalities of sup and what's 1 t germane to the items as they come up, and what we should 12 be discussing, et cetera, et cetera. 13 COMMISSIONER APPLE: And would you like 14 that at a Work Session -- 15 COMMISSIONER MULROY: Yes, a Work Session. 16 COMMISSIONER APPLE: -- as opposed to just 17 written information? 18 COMMISSIONER MULROY: NO, Work Session, 19 please. 20 COMMISSIONER APPLE: All right. If staff 21 would make note of that. Seeing no further comments, the 22 meeting is adjourned. 23 24 25 PLANNING AND ZONING COMMISSIONER MARCH 26, 2003 Page 53 - Page 54 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A GAS WELL DEVELOPMENT ON APPROXIMATELY 17.3 ACRES OF LAND GENERALLY LOCATED SOUTH OF HICKORY CREEK ROAD APPROXIMATELY 1,000 FEET WEST OF TEASLEY LANE, WITHIN A NEIGHBORHOOD RESIDENTIAL 6 (NR~6) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMU-M AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTWE DATE. (Z03-0012) WHEREAS, Mid Continent Geological, INC. has applied for a specific use permit for a gas well development within a Neighborhood Residential 6 zoning district classification and use designation on approximately 17.3 acres of land generally located south of Hickory Creek Road approximately 1,000 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 March 26, 2003, the Planning and Zoning Commission recommended approval of a Specific Use Permit for a gas well development; and WHEREAS, the City Council fmds 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 vicinity; 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 necessary supporting facilities have been or will be provided; and The design, location, and arrangement of ail driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; and Adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; and Directional lighting will be provided, so as not to disturb or adversely affect neighboring properties; and There is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. A specific use permit to allow a gas well development within a Neighborhood Residential 6 (NR-6) zoning district classification and use designation on the Property is hereby approved, subject to the following conditions: 1. All residences within 500 feet of the well site will be noticed 24 hours prior to the fi:acing of the wellhead. 2. A blockade style fence will be installed on steel post around the well site to create a visually appealing screen for the well site. 3. Development and operation of the gas well development shall be in accordance with the site plan on file in the City Planning Department, a copy of which is attached hereto and made a part hereof as Exhibit "B". SECTION 3. Notwithstanding the description of the Property, the property being rezoned includes all property to the centerline of all adjacent street rights-of-way. SECTION 4. The City's official zoning map is amended to show the change in zordng district classification. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ~dayof ,2003. EUL1NE BROCK, MAYOR PAGE 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: BY: ~ j/ / ff PAGE 3 Exhibit "A" FIELD NOTES m all that certain tract of land S.A. Venters Survey Abstract Number 1315, City of Denton, Demon County, Texas and being part of the called 20.442 acre tract described in the deed from Alvin E. Meredith et ux to Western Place Inc. recorded in Volttme 829, Page 474 of the Deed records of Denton County, Texas; the subject tract being more particularly described as follows: BEGINNING at the West comer of the herein described tract, South 03 Degrees 54 Minutes West a distance of 557.7 feet and South 86 Degrees 05 Minutes East a distance of 33.7 feet from a PK nail found in Hickory Creek Road at the North Northeast comer of the called 3.13 acre tract described in the deed from Gordon Meredith to the City of Denton recorded in Volume 4647, Page 3452 of the said Deed Records; THENCE North 47 Degrees 27 Minutes East a distance of 215.0 feet; THENCE South 42 Degrees 33 Minutes East a distance of 240.0 feet to the North line of the Texas Municipal Power Agency 75 foot Utility Easement recorded in Volume 1139, Page 757 of the said Deed Records; THENCE South 47 Degrees 27 Minutes West with the North line of the Texas Municipal Power Agency 75 foot Utility Easement a distance of 215.0 feet; THENCE North 42 Degrees 33 Minutes West a distance of 240.0 feet to the PLACE OF BEGINNING and enclosing 1.18 acres of land more or less. EXHIBIT "B" \ \ \ \ \ \ \ '\ \ \ Land Surveying AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: May 13, 2003 Economic Development Mike Conduff, City Manager SUBJECT Consider adoption of an ordinance establishing an Economic Developmem Program under Chapter 380 of the Local Governmem Code for making grams of public money to promote economic development and to stimulate business activity in the City of Denton; approving an Economic Development Program Grant Agreement with Sally Beauty Company, inc. regarding the developmem of an approximate 24 acre parcel of land located north of the intersection of Brinker Road and Colorado Boulevard in the J. White Survey, Abstract No. 1433, in the City of Denton, Texas; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND The City Council approved a tax abatement agreement for Sally Beauty Company on July 31, 2001. The company agreed to invest a minimum of $5 million to renovate warehouse space imo office space in their existing facility in order to accommodate growth, in return, the Council granted 100% abatement on the increase in valuation on the existing building for ten years. Equipmem and land valuation were not eligible for abatemem under that agreement. The estimated fiscal impact on the City amounted to $128,000. In addition, the Denton Independent School District granted a 25% abatement for seven years, with an estimated impact of $66,000. The project never came to fruition as the company soon realized that the renovation would not suit their needs and began looking for land to build a new facility. Sally Beauty Company currently has an option on a 24-acre tract of land located at the corner of Brinker Road and Colorado Blvd. The company proposes a 200,000 square foot imernational headquarters facility with 185,000 square feet of class-A office space and 15,000 square feet of storage. The estimated valuation of the building, land and new equipmem is $24 million. Sally Beauty represematives began talking with City staff in February 2003 and officially submitted an economic developmem incemive application in April 2003. They requested an incemive equal to 50% of City ad valorem taxes paid on the new facility and new equipmem for a period often years. This is the maximum amoum of abatemem provided under the City's Tax Abatemem Policy. Staff is recommending a 40% rebate of ad valorem taxes paid on the new facility and new equipment for ten years under a Section 380 Economic Development Program Agreement. If approved, the July 2001 tax abatement agreement would become invalid and the existing facility, furniture and equipmem would remain on the tax rolls. The company has not yet decided whether they will lease or sell the existing building. Furniture, fixtures and equipmem (except for the computer equipmem) will remain in the existing facility. ESTIMATED SCHEDULE OF PROJECT If the agreement is approved, Sally Beauty Company hopes to complete construction and move into the new facility early 2004. The agreement provides a threshold date of completion of March 1, 2005, to allow for any delays in developing design plans or construction. FISCAL INFORMATION The proposed agreement provides a rebate of 40% of ad valorem taxes paid on the new facility and new equipment. Under the agreement, valuation on computer equipment to be moved from the existing facility would be subtracted from the total equipment valuation located at the new facility to determine the eligible amount each year. Each year, the existing equipment valuation would be decreased by one-fifth to allow for depreciation. The following table provides estimated valuation and ad valorem tax revenues generated by Sally Beauty Company property. Based on the City's current ad valorem tax rate, total annual property tax revenues from these properties would generate $200,301. Under this proposal, Sally Beauty would receive a $43,852 rebate after paying their full tax liability, and the City would retain $156,449. Valuation Total Total Tax Eligible Estimated Balance Description Valuation Revenue Valuation Rebate Revenue Existing land, $13,541,098 $74,226 0 0 $74,226 building, equipment New land 3,000,000 16,445 0 0 16,445 New building 17,000,000 93,185 $17,000,000 $37,274 55,911 New equipment 3,000,000 16,445 3,000,000 6,578 9,867 Totals $36,541,098 $200,301 $20,000,000 $43,852 $156,449 Using conservative assumptions of property valuation increases as well as the depreciation of the existing furniture and fixtures, the estimated rebate to Sally Beauty Company over the term of the agreement would amount to $511,341, and the City property tax liability for Sally Beauty after receiving the rebate is estimated at $1,112,052. Since the Denton Independent School District can no longer participate in tax incentives, the District would retain its full assessment of approximately $680,000 annually. If City Council approves this agreement, Sally Beauty Company will approach Denton County for a similar incentive. EXHIBITS Ordinance Economic Development Program Grant Agreement Respectfully submitted, Linda Ratliff, Director Economic Development Department C:\DOCUME I~ablbrsy/\LOCALS I\Tomp\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 SALLY BEAUTY COMPANY, INC. REGARDING THE DEVELOPMENT OF AN APPROXIMATE 24 ACRE PARCEL OF LAND LOCATED NORTH OF THE INTERSECTION OF BRINKER ROAD AND COLORADO BOULEVARD IN THE J. WHITE SURVEY, ABSTRACT NO. 1433, IN THE CITY OF DENTON, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Sally Beauty Company. ("SBC") has made a request of the City of Demon 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 DCP have negotiated an Economic Development 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 ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH SALLY BEAUTY COMPANY, INC. This Economic Developmem Program Gram Agreemem ("Agreemem") is made and emered imo as of the effective date provided for below, by and between SALLY BEAUTY COMPANY, iNC. ("SBC"), a Delaware corporation, and the CiTY OF DENTON (the "City"), a Texas municipal corporation, for the purposes and considerations stated below: WHEREAS, this Agreement is authorized by and made pursuant to the economic developmem program provisions of Chapter 380 of the Texas Local Governmem Code (the "Act") to promote local economic developmem and to stimulate business and commercial activity in the City of Demon; and WHEREAS, SBC is comemplating the development of that certain real property located within the city limits of the City as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, on the 8th day of April, 2003, SBC submitted an application for economic development incentives with various attachments to the City concerning the comemplated use and development of the Property, which is on file in the City's Office of Economic Development, a copy of which is attached hereto and made a part hereof by reference as Exhibit "B" (the "Application for Economic Developmem incentives); and WHEREAS, the City Council finds that the contemplated use and development of the Property, the proposed improvemems provided for herein and the other terms and conditions of this Agreement will promote economic development and will stimulate developmem activity within the City of Demon for the benefit of the public; NOW, THEREFORE, the City and SBC for and in consideration of the premises and the promises contained herein do hereby contract, covenant and agree as follows: CONDITIONS OF THE GRANT The City's obligations under this Agreemem are subject to the fulfillmem of the following conditions (the "Gram Conditions"): A. No later than January 31, 2004, (subject to force majeure delays not to exceed 180 days), SBC shall make a capital investment of at least $18 million for the construction and equipping of a building or buildings and other improvemems to be constructed on the Property as more particularly described in the Application for Economic Developmem (the "improvemems"). The improvemems include the obligation of SBC to build a 200,000 square foot building of class A office space at an estimated value of $18 million and purchase and install tangible personal property valued at $3 C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC million for a total new valuation of $21 million as determined by the DeNon County Appraisal District. The Improvemems shall be completed no later than January 1, 2004 (subject to force majeure delays not to exceed 180 days). The Improvemems, once completed, shall be occupied by SBC's international headquarters for the duration of the term of this Agreemem. Throughout the term of this Agreemem, the Improvemems shall be cominuously operated and maimained for the purposes set forth herein so that the uses of the Property shall be consistem with the general purpose of encouraging developmem or redevelopmem of the City of DeNon, except as otherwise authorized or modified by this Agreemem. B. SBC shall satisfy all of the provisions and requiremems for the project as set forth in the Application for Economic Developmem Incemives including the Improvemems shall be used in accordance with the description of the project set forth in the Application for Economic Developmem Incemives; and C. As of January 1, 2003, there were no Improvemems on the Property. II. GENERAL PROVISIONS mo bonds. The Property is not in an improvemem project financed by tax incremem B. Neither the Property nor any of the Improvemems are owned or leased by any member of the City Council, any member of the City Planning and Zoning Commission of the City or any member of the governing body of any taxing units joining in or adopting this Agreement or similar agreement affecting the Property. C. This Agreemem is subject to rights of holders of outstanding bonds of the City, if any. D. In the event of any conflict between the City zoning ordinances, or other City ordinances or regulations, and this Agreemem, such ordinances or regulations shall control. III. TERMS AND CONDITIONS OF GRANT A. Subject to the terms and conditions of this Agreemem the City hereby agrees to pay to SBC annually (the "Annual Paymems") an amoum equal to 40% of the City ad valorem taxes paid by SBC attributable to an increase in value, as determined by the Demon County Appraisal District, over the value on January 1, 2003 of (i) the Improvmems, and (ii) the tangible personal property on the Property excluding tangible personal property and invemory and supplies transferred from existing locations in Denton, Texas, such payments to be subject to the following terms and conditions. C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC B. SBC shall have the right to protest and contest any or all appraisals or assessments by the Denton County Appraisal District of the Property, Improvements or any tangible personal property owned by SBC and located on the Property. C. The Annual Paymems shall be for a term of ten years with the first paymem being due and payable on or before 60 days after the City is in receipt of all City ad valorem taxes due and payable for the Property as of January 1 of the year following the calendar year in which a certificate of occupancy is issued by the City for the Improvemems (the "Beginning Date") and, unless sooner terminated as herein provided, shall end on the 10m anniversary of the Beginning Date. All subsequent Annual Paymems shall be due and payable on or before 60 days after the City is in receipt of all ad valerom taxes due and payable as of January 1 for the preceding tax year. D. The City's obligation to pay the Annual Paymems is subject to the fulfillment of the Grant Conditions. Nothwithstanding the foregoing, the City agrees to pay to SBC reduced Annual Payments so long as the total minimum valuation is not less than $10,000,000 as determined by the DeNon County Appraisal District. Such reduced Annual Payments will be reduced by the percentage of reduction between the proposed and actual increase in valuation numbers. For example, if the total increase in valuation is $20 million, the total valuation is 95 per cent of what was originally contemplated. 95 per cern of 40 per cern is 38 per cern. Therefore, in such case SBC would receive an Annual Payment equal to 38 per cent of the eligible ad valorem taxes paid. IV. RECORDS, AUDITS, AND EVALUATION OF PROJECT A. No later than 60 days after the issuance of a certificate of occupancy for the Improvemems, SBC shall deliver an affidavit to the City signed by an authorized officer of SBC certifying to a list and description of all tangible personal property, including inventory and supplies, transferred to the Improvements from other locations in DeNon ("Transferred Property"). Such list is subject to verification and audit by the City at all reasonable times. SBC shall cooperate with the City in providing any and all verifications that may be required by the City to establish accuracy of the affidavit. When rendering its tangible personal property located on the Property for ad valorem taxes for the year applicable to the first Annual Payment, SBC shall segregate and list the values of the Transferred Property separate from other tangible personal property located on the Property so that the City and DeNon County Appraisal District will be able to calculate the value attributable solely to the Transferred Property (the "Value of the Transferred Property"). For subsequem Annual Paymems the Value of the Transferred Property will be the same as that calculated for the first Annual Paymem and will be simply deducted from the total value of all tangible personal property located on the Property to determine the amount of the Annual Payment. B. During normal office hours throughout the term of this Agreemem, after providing reasonable notice to SBC, the City shall have access to the Property and the C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC improvements by City employees, consultants and authorized agents for the purpose of inspecting the Property and the Improvements to ensure that the Improvements are made in accordance with the specifications and conditions of this Agreement and to verify that the conditions of this Agreement are being complied with, provided that such inspection shall not unreasonably imerfere with SBC's normal business operations. go FAILURE TO MEET CONDITIONS In the even (i) SBC allows its ad valorem real property taxes owed to the City with respect to the Property or Improvements, or its ad valorem taxes owed to the City with respect to any tangible personal property owned by SBC which are located in the Improvements, to become delinquent and fails to timely and properly follow the legal procedures for protest and/or comest of any such ad valorem real property or tangible personal property taxes; or (ii) any other conditions of this Agreemem are not met, including the Gram Conditions, then a "Condition Failure" shall be deemed to have occurred. It is understood that a Condition Failure shall not be deemed to occur merely because at a particular time it cannot be determined whether such condition will be met, but shall occur only if at a particular time it can be determined that such condition will not be met. In the event that a Condition Failure occurs, the City shall give SBC written notice of such Condition Failure and if the Condition Failure has not been cured or satisfied within ninety (90) days of said written notice, this Agreemem may be terminated by the City; provided, however, that if such Condition Failure is not reasonably susceptible of cure or satisfaction within such ninety (90) day period and SBC has commenced and is pursuing the cure or satisfaction of same, then after first advising the City of efforts to cure or satisfy same, SBC may utilize an additional ninety (90) days to cure or satisfy the Condition Failure. Time in addition to the foregoing 180 days may be authorized by the City Council. if a Condition Failure is not cured or satisfied after the expiration of the applicable notice and cure or satisfaction periods ("Condition Failure Default"), the Annual Payments shall be terminated with respect to the year in which notice of the Condition Failure is given and for all future years, and SBC shall repay to the City portions of the Annual Payments previously paid in accordance with the following criteria. In the event of a Condition Failure Default in the first year of the ten year term, SBC shall repay to the City 90% of the Annual Paymems previously paid; for a Condition Failure Default in the second year, SBC shall repay to the City 80% of the Annual Payments previously paid; in the third year 70%; in the fourth year 60%; in the fifth year 50%; in the sixth year 40%; in the seventh year 30%; in the eighth year 20%; in the ninth year 10%; and in the tenth year no repayment is required. VI. ASSIGNMENT This Agreemem and SBC's rights and obligations hereunder may not be assigned without the City"s prior written approval. C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC VII. NOTICE All notices called for or required by this AgreemeN shall be addressed to the following, or such other party or address as either party designated in writing, by certified mail postage prepare or by hand delivery: SALLY BEAUTY COMPANY, INC. CITY: City Manager City of DeNon 215 E. McKinney DeNon, Texas 76201 VIII. CITY COUNCIL AUTHORIZATION This AgreemeN is authorized by the City Council at its meeting on the __ day of ,2003, authorizing the City Manager to execute this Agreement on behalf of the City. IX. BOARD OF DIRECTORS AUTHORIZATION This AgreemeN is eNered iNo by SBC pursuaN to authority graNed by its Board of Directors by corporate resolution authorizing its authorized officer below to execute this AgreemeN on behalf of SBC. A copy of said resolution is attached hereto and made a part hereof as Exhibit C. SEVERABIILTY In the even any section, subsection, paragraph, seNence, or phrase is held invalid, illegal or unconstitutional, the balance of this AgreemeN shall stand, shall be enforceable and shall be read as if the parties iNended at all times to delete said invalid, illegal or unconstitutional provision. XI. ESTOPPEL CERTIFICATE Any party hereto may request an estoppel certificate from another party hereto so long as the certificate is requested in connection with a bona fide business purpose. The C:\DOCUME-15abforsyt\LOCALS-15Temp\SALLY3~I.DOC certificate, which if requested will be addressed to SBC, shall include, but not necessarily be limited to, statements that this Agreement is in full force and effect without default (or if default exists the nature of default and curative action, which should be undertaken to cure same), the remaining term of this Agreement, the levels and remaining term of the Annual Paymems in effect, and such other matters reasonably requested by the party(ies) to receive the certificates. XII. SBC STANDING SBC, as a party to this Agreemem, shall be deemed a proper and necessary party in any litigation questioning or challenging the validity of this Agreemem or any of the underlying ordinances, resolutions, or City Council actions authorizing same and SBC shall be entitled to intervene in said litigation. XIII. APPLICABLE LAW This Agreemem shall be construed under the laws of the State of Texas. Venue for any action under this Agreement shall be the State's District Court of Denton County, Texas. This Agreement is fully performable in Denton County, Texas. XIV. RECORDATION OF AGREEMENT A fully executed original counterpart of this Agreement or a Memorandum of Agreemem, in recordable form, shall be recorded in the Deed Records of DeNon County, Texas. XV. AMENDMENT This Agreement is the entire agreement of the parties and may only be modified by a written instrument executed by both parties. XVI. EFFECTIVE DATE This Agreemem is effective as of the __ day of ,2003. CITY OF DENTON, TEXAS BY: MICHAEL A. CONDUFF CITY MANAGER C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: SALLY BEAUTY SUPPLY, INC. BY: Name: Its President C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC ACKNOWLEDGMENTS STATE OF TEXAS COUNTY OF DENTON } The foregoing Economic Development Program Agreement was executed before me on the __ day of ,2003 by Michael A. Conduff, City Manager of the City of Denton, Texas, a Texas municipal corporation, on behalf of said municipal corporation. Name: Notary Public in and for the State of Texas STATE OF TEXAS } COUNTY OF DENTON } The foregoing Economic Development Program Agreement was executed before me on the __ day of ,2003 by , President of Sally Beauty Supply, Inc., a Delaware corporation, on behalf of said corporation. Name: Notary Public in and for the State of Texas C:\D OCUME~ 1 \abfors yt\LOCALS~ 1 \Temp\SALLY3 ~ 1 .DOC EXHIBIT "A" THE "PROPERTY" LEGAL DESCRIPTION BEING A TRACT OF LAND IN THE J. WHITE SURVEY, ABSTRACT NO. 1433, AND BEING A PART OF A CALLED 243.185 ACRE TRACT OF LAND AS DESCRIBED IN A DEED RECORDED IN VOLUME 3245, PAGE 699, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT A ½" IRON ROD FOUND WITH A CAP STAMPED "WEIR & ASSOC., INC." IN NORTHWESTERLY RIGHT-OF-WAY LINE OF BRINKER ROAD, BEING THE MOST SOUTHERLY SOUTHWEST CORNER OF LOT 1, BLOCK 1, SOUTHERN HILLS MEDICAL PLAZA, AS RECORDED IN CABINET U, PAGE 889, P.R.D.C.T.; THENCE S 48'33'32" W ALONG THE NORTHWESTERLY RIGHT-OF-WAY LINE OF SAID BRINKER ROAD, 713.01 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., INC." BEING THE BEGINNING OF A CURVE TO THE LEFT HAVING A RADIUS OF 2,040.00 FEET; THENCE ALONG SAID NORTHWESTERLY RIGHT-OF-WAY LINE OF BRINKER ROAD AND ALONG SAID CURVE TO THE LEFT HAVING A DELTA ANGLE OF 1 '50'20", A CHORD BEARING S 47'41 '07" W, 65.47 FEET, AND AN ARC LENGTH OF 65.47 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., INC.", BEING THE INTERSECTION OF THE NORTHWESTERLY RIGHT- OF-WAY LINE OF SAID BRINKER ROAD AND THE SOUTHEASTERLY RIGHT- OF-WAY LINE OF COLORADO BOULEVARD, AND BEING IN A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1,360.00 FEET; THENCE ALONG THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF COLORADO BOULEVARD AS FOLLOWS: ALONG SAID CURVE TO THE RIGHT HAVING A DELTA ANGLE OF 39'24'06", A CHORD BEARING N 26'17'46" W, 916.94 FEET, AND AN ARC LENGTH OF 935.26 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., N 06'35'44" W, 100.00 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., INC.", BEING THE BEGINNING OF A CURVE TO THE LEFT HAVING A RADIUS OF 640.01 FEET; ALONG SAID CURVE TO THE LEFT HAVING A DELTA ANGLE OF 25'28'42", A CHORD BEARING N 19'20'04" W, 282.26 FEET, AND AN ARC LENGTH OF 284.60 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., THENCE N 50'47'12" E, DEPARTING THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF SAID COLORADO BOULEVARD, 774.11 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., INC.", BEING IN THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF RAILS FOR TRAILS; THENCE S 41 '26'40" E ALONG THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF SAID RAILS FOR TRAILS, 616.16 FEET TO A ½" IRON ROD FOUND WITH A CAP STAMPED "WEIR & ASSOC., INC.", BEING THE MOST NORTHERLY NORTHEAST CORNER OF SAID LOT 1; THENCE S 48'33'21" W ALONG THE NORTHWESTERLY LINE OF SAID LOT 1, 375.40 FEET TO A ½" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC., THENCE S 39'12'49" E ALONG THE SOUTHWESTERLY LINE OF SAID LOT 1, 581.84 FEET TO THE PLACE OF BEGINNING AND CONTAINING 23.745 ACRES (1,034,352 SQ. FT.) OF LAND. 10 EXHIBIT "B" THE APPLICATION FOR ECONOMIC DEVELOPMENT INCENTIVES City of Denton Economic Development incentive Application City or: Denton ~onomic Development Deyartmem Dentoa, Texa~ 76201 (9~) 3494305 (~) 349 8518 FAX 12 ~LICATION FOR TAX ABA~~ CITY O1~ DENTON C~mpauy or Pr,ject Name: ~ Adflres~: 3900 Morse Xtrect Den{on Te~ 76208 Telephone: {940) $~Tf(M3 Fax:.l~40t 89g-7,501 Company r~pre~entative to he enntaeted: lVla~ Addreti: 3903 Morse Street Dcetom Tcxa~ 76208_ Telephone: (940) 898-7500 Provide a chronolog~ of plnn{ openings, d~g a~d r~locatioas over pa~ 1.q year~: Provide a record ofme~ a~ financial re~uc~ daring the ~ Five yearm. %er~ have beea iu cx~ess of 30 ac~uLsifions :,, the las~ 15 sv~ihble ~o C:i~'$ Fmhl Ad~4sor if ~qulr~, Wffi the occupants of the p~oje~t be ,wrier ,or lessees? If le$~, ~re oecupam~' commitments already Owner reloeatt0m give current loeafioa. New fac[llty~ existing Denton business, will projeit result in gba~domeat ~f existing PadlttW. lit so, value of e~ti~g ~Lte ~y,,,rWil! 7acam the ¢xis~e f<i i~, ho~vc:r ~nt ~rti~ of ~e exiaine ~}m~ ~ Eligibility Crite~- (De_~erlbe how the project meets the ~ almtement t~liey cri~rta): The pro~ inv~ o¥~r $~ rlli.[li_9.p..j~.~o__~.anm~nl~' a~. adds ~/ana~lv ~80,~ squar¢,,fee~, o~LCl~ ~,pffic~ ~nee and 20,~ ~l' native trees so ~at d~¢ hcili~ will have a_c_a_¢~, .~.s ar~earanm- lo;a~! g ~gUtl~rn gaewav of l}eaton~ 8. ~oper~ Description: ~ t c~4 13 · a~ copy of ~ (or ~eyor'$ no~e~) 0e~aiRag properrfs rn~ an~ ~x~ua{ls. · Atta~la ~rmla of [x~ojec~ including all roadwayt, land u~e aad ~oai~g w~iu 500 ~t o~f aide. ~ E:chib~ 1.2 ~1 V~¢: A~h c<~py of laeat propcrey tax stab:mcat fix, m De,ton ~Riy Appcai~ DiVot (~lu(le both veal and pe~onal p~pe, rry). ~ E~bit 4 For ~xistalg Sally oM .~rateme~, lncrea,~d ~alue- I~,~imated Total Cost o{ Briefly ~ri~ ~e~ iaves~ (i 11, 12. For ~h ~ entity, indicate the amomat of tax abatemeat City of Denlon - 50% of lucrealed Ya!~ ~ 1o ?ears ~ couant - 5o% cf InCreaax} Val~e- lO Give a brief deseriplion of tlae aetivMes to be perforna~d at ~ts iocatima, including a descriptba of ~c~s to be trcodueed aad/or sirviees t~ be pr0vi{kd: ~ location_'~e?. ~C%r!>ora~ headquarters in su~ort of Ibc Workiw~ o~..of2,750 stores. Sug, por~ pLovkl~.~L.~{~..~.~i~ ~:~ Eii~,. ~gal, Marketing, Real Estat~.bLer~andisini, Haman Resources, Irt~~.~A{l'v~n~a~ Loei~ .Sup0ort ¸13. Project Coz~trm:fion Phase: A, Estimate pereeu.mge ,of Pr0j~t ~ve~m~m and C~n l}ollars t~ ~ spent C. ~n'be An.v Off-Ske I~fea~tnteture Requirements: Water: None Sanitary ~wer: N~ne Drainage: Non~ 14 14, Projen:t Operation ~:.M~OYMEN2' INFORMATION ~xis~g At Proj~t In i1~ fiffl~ y~m- of ~ ~ ~ ~ar of ~ation (if S~ D~ B. E~ Tr~s~rr~ From 0 0 O C. N~t ~ Fu]i-6me J~s (A 391 450 ~as B) D~ ~e~g~ of Net J~s a~ve) *F-ac~ ~licai~oo ~fit ~e te~ie~ o~l i~s mer~ls. ~, abse~ exrr~inar? ci~nc~, a ~inilnom o~' ~% el~ ~ e~ploy~:~s ~ld be l~rt~ ~a~. Gt2m0any ~ll rg~t ~nnualty and, ~ ~ge is ~ ~. a i~ota~ ~i~ cf ~he aba~f~: g0~ occur. F. Types ot' Sobs Crea~ed (Job Titles) 57% V~fe~i~l ~ an average ~ob ~s~ e~m~a~ ~ hfl tan~e ~r~, b~n ~s. MIS, fi~, Eaimate utility usage for pmjeet: Current U~age Gas: _$10,~ El~c~r~; _$ 200,000 Wa~t: Included ~l~ream will ~ in ~,rc~m't~n ~o i~rea~ed oiTtee and oeaupa~y atitizafica~ 15. Describe any o~ ~ benefits to t~e City of 1)en~n as a r~At of ~ ~i~ (e,g,, ~: ~ ~v~ae): ~c C,o~v i~s d~c ~l~s m b~ not o~y ~mugh ~y~ gm~ in I~ ~g ~t ~gh ~c numar of tmve~ts (~r bus~ ~a~r~ ~ ~nuf~m~rs) ~ho ~ ~ul~rlv wi~ Coa~y 16. Is ProperW Zoned Appropriately? Yes ~I No Curreu~ :~mng: RCC-I'~ Regional Center Commercial Neighborhood ................ Req~ir~ Zoning: same 15 18. I)lseass any enviromae~tal impacts create~ lay the project, Lkt aay permi{s for ~ieh :~plflleam mu~t apply, Aplffieaat ~ 1~ required to ~ovide CiO' wtlh copies of all applications for en~nmeml permits Ul~n ¢ompieti~m I9. 21, IL P~,vMe record o1' complian~ to all environmental ~m ~r Not ~vide d~rip~ of ~ ~o~ ~t a~ ~ ~h Justification for T~ Abatement Reque~ {~bstanti~ ~ more fully ~ the j~n for this r~est, luelude the amount of ~e aba~m~t r~u~ ~ ~ow ~w it ~ ~u~ ~ ~e ~1 This tax abatement appliemtiou ~ :mb~ with the a~w~g~r~nt that actlitkaml cerJfled 16 EXHIBIT 1 1,EGAL DESCR.IP'I'IC, N BEING A TRACT OF L/x2~;D IN THE I.W~TE SURVEY, ABSTRACT NO.. 1433, AND BEING' A PART GE A CALLED 243. [85 AC~ IRACl OF LAND AS DESC~BED IN A DEED RECOgDED iN VOLUME 3245, P_~GE 699, I~EAL PROPERTY RECORDS OF DENTON COUNTY. TEXAS! AND BEING MO~ PARTICULARLY DESCRIBED BY METES AND BO[FNDS AS FOLLOWS: BEGIN~G AT A ¥'3~" IRON ROD FOI?ND W.rTH A CAP :5TAMPED "W?EIR & ASSOC.. II'4C? IN NORTHWESTt~RI.Y R!GHT*OF.WA¥ I.I~E OF B~ER ROAD, BE:lNG THE MOST SOUTHERLY SOUTHWEST CO~ER OF LOt 1, BLOCK 1, SOUTHERN HILLS MEDICAL PLAZA, AS ~CORDED 1N CABINET U, PAOE 889, THENCE S 48'33'32" W ALONG THE NORTHWESTE~Y RIGHT-OI:-WAY LINE OF SAID DRINKER ROAD, 713.01 FEET TO A ~5" IRON ROD SET WITHA CAP STAMPED "WEIR ~ ASSOC., IRC?' BEIN(5 'I~HE B~INNING OF A CURVE TO THE LEFT MAVtNG A ~D[US OF 2~£,4(3.00 FEET; THENCE ALONG SAID NORTHWES'I'ERLY RI©HT~OF~WAY LINE OF DRINKER ROAD AND ALONG SAiD CURVE TO THE LEFT HAVING A DELTA ANGLE OF 1'5£,'20", A CHORD BEARING 8 47'41'07" W, 6547 FEET,: AND AN ARC LENGTH OF 65.47 FEET TO A V~" IRON ROD SET WITH A CAP ST.~qlPED"WE. IR& ASSOC., INC?, BEING THE INTERSECTION OF THE NORTHWESTERLY RIGHT- OF-WAY LINE OF SAID BRINKER ROAD AND 'rile SOUTHEASTERLY ~GHT- OF.WAY LINE OF COLORADO BOULEVARD, AND BEING IN A NON,'I'AN:Ci~T CURVE TO THE RIGHF HAVING A RADIUS OF 1,360,00 FEET; THENCE ALONG ]'HE SOUI'HEASTERLY PdGI.IT-OF-WA¥ LINE OF COLO~hDO BOULEVARD AS FOLLOWS: ALONG SAID CURVE TO THE RIGH~I' HAVING A DELTA ANGLE OF 39'24'06". A CHO.KD BEARING N 26~ 17'45" W, 916.94 FEET, AND AN AKC LENGIH OF 935.26 FEET TO A V2" IRON ROD SEI WITH A CAP STAMPED "V/EIR & ASSOC,, INC?; N 06~3!'44'' W, !£~)~0,) FEET TO A ,5" iRON ROD SE~E WITH A CAP STAMPED "WEIR &ASSOC., IRC.", BEING ]HE BEGINNING OF A CURVE TO THE LEFt HAVINLi A IL~.DI[./S OF 640.01 FEET; AI.ONG SAID CI '.RVE ]~O THE LEFT HAVING A DEI.TA ANGJ.EOF 25'~g'42'*, A CHORD BEA~NG N 19'20~04'' W, 282.26 FEET, AND AN ARC LEN£STH OF 284.60 FEET TO A V2" IRON ROD SET WITH A CAP STAMPED "WEIR & ASSOC,, ;NC?; 17 THL2NCE N 50'47'12" E, DEPARTING THE SGU~EASTE~Y RIGI IT-OF-WAY LINE OF SAID COLOP~ADO ~OUI EVARD~ 774 ! 1 F~F~T TO A %" IRON ROD SET WITH A CAP STAMPED '~WEIR & ASSOC. INC?', BEING IN T~HE SOUTHWESTERLY RIGHT-OF-WAY LINE OF MiLS FOR TP~/kILS; THENCE § 41 '2C40" E ALONG THE SOUI'HWEST~¥' RIGHT.OF-WAY LINE OF SAID [L,XILS FOR TK&ILS, 616.! 6 FEET TO A %'" IRON' ROD FOL~D WITH A CAP STAMPED '~WEIR & ASSOC., INC.", BEING TEE MOST NORTHERLY NORT~AST CORNER OF SAID LOT 1; THENCE S 48~33'21'' W ALONG THE NORTHWEKI gl~&Y LINE OF SAID LOT 1, 375.40 FEET TD A IA' IRON ROD SE1- WITH A CAP STAMPED '*WEIR.& ASSOC. INC',"; THENCE S 39'12'49" E ALONG I~tE SOUTHWESTERLY LiNE OF SAID LOT 1, 581 ~84 FEET TO THE PLACE OF BEGtN-NiNG .AND CONTA~INO 23.745 ACRES (1,034,352 SQ. F'I'.) OF LAND. 18 Z EXHIBIT "C" SBC CORPORATE RESOLUTION 20 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 13, 2003 Water and Wastewater Utilities Howard Martin, 349-8232 ~ SUBJECT Update the City Council on additional information requested at the public hearing on April 15, 2003, and seek additional direction regarding the proposed impact fee ordinance. BACKGROUND On April 15, 2003 the City Council reconvened the public hearing began on March 25, 2003. After closing the public hearing Council requested staff bring back additional information request regarding rates and impact fees in Denton County, in order to determine where Denton was positioned in regards to other cities. At that meeting Council also requested staff go back to the Public Utilities Board (PUB) and bring back a formal recommendation from the PUB regarding the impact fee to be included in the ordinance. One of the requests posed by Council was a list of cities in Denton County that do not charge impact fees. Most cities in Denton County that operate their own water and wastewater systems impose an impact fee on new connections. Sanger, Aubrey and Hickory Creek do not charge an impact fee. Presently Ponder does not charge a fee, but is currently working through the process to impose a fee on new connections. Council Member Burroughs also requested if Fort Worth and Dallas impose an impact fee. Fort Worth does impose an impact fee for both water and wastewater, while at the present time Dallas does not impose an impact fee. §395 of the Texas Local Government Code requires each water or wastewater provider imposing an impact fee to update their capital improvement study every 5 years. Exhibit I represents a survey of impact fees in Denton County. This fee represents the current fee imposed and does not reflect when the last impact fee study was performed. Grapevine and Corinth recently completed the impact fee update process and both approved an amended impact fee ordinance in September 2002, while Highland Village will not be required to do an update until 2005. Lewisville is also in the middle of their 5-year impact fee and will not be amending their fee for 3 years. Flower Mound is in the beginning stages of amending their fees and will probably see a change in fees in December 2003. Fort Worth will begin the process in the fall of 2003 and is currently proposing amending their fee in June 2004. Water Supply Corporations such as Bartonville and Argyle charge membership connections fees and are not required by law to prepare a study to update those charges on a regular basis. For further evaluation, staff has also provided as Exhibits II A-D, which represents water and wastewater rate comparisons for cities and water supply corporations in Denton County. On April 21, 2003, staff received a recommendation from the PUB regarding the proposed impact fee. Exhibit III is a copy of the minutes from that meeting. The PUB recommended the following: Water Single Impact Fee $3,155 calculated 42% credit Wastewater 2 Separate Zones Phased impact fees Hickory/Pecan Creek $1,437 - 2004-2006 (50% credit) $1,570 - 2007-2008 (45% credit) $1,703 - 2009+ (calculated 41% credit) Clear Creek $1,437 - 2004-2006 (same fee as Hickory Creek) $1,893 - 2007-2008 (50% credit) $2,614 - 2009+ (calculated 31% credit) The PUB also recommended a .5 equivalency factor for single family homes less than 1,300 square feet built on lots less than 6,000 square feet to encourage infill development in the Hickory/Pecan Creek Basin. This would establish the fee at $2,209 for water and $1,006 for wastewater (years 2004-2006) for those homes meeting the above criteria. At the present time a second public hearing has been scheduled for May 27, 2003 at which time staff will be seeking a vote on an updated impact fee ordinance after the public hearing. OPTIONS At this time staff is only updating the City Council on the additional information requested at the April 15, 2003 meeting and no action is required at this time. PRIOR ACTION/REVIEW (Council, Boards, Commission) December 18, 2002 - Capital improvements Advisory Committee approves the Land Use Assumptions and the 1 O-Year Capital Improvement Plan. February 3, 2003 - Duncan and Associates Study presented to the Public Utilities Board. February 4, 2003 - Duncan and Associates Study presented to the Council along with fees recommended by the Public Utilities Board. February 11, 2003 - Staff presented to the Council recommended fees along with the impact on rates bases on the fee approved. March 12, 2003 - Duncan and Associates study presented to the Capital Improvements Advisory Committee. March 17, 2003 - Staff presented to the PUB a draft ordinance EXHIBITS Exhibit Exhibit Exhibit Exhibit i Denton County Impact Fee Comparisons ii Denton County Water and Wastewater Rate Comparisons iii Public Utilities Board Minutes from April 21, 2002 Meeting iV Recommended impact Fee Ordinance Respectfully submitted: Howard Martin ACM, Utilities 0 0 0 0 0 0 0 0 oO So° 0 LO 0 I~. 0 LO LO 0 0 0 (D ~ 0 0 CO I~. 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 47 48 PUBLIC UTILITIES BOARD MEETING MINUTES April 21, 2003 9:00 A.M. After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, April 21, 2003 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. PRESENT: EXCUSED: Bill Cheek, Charldean Newell, Dick Norton, Rob Rayner, Dick Smith and Don White EX OFFICIO MEMBERS Mike Conduff, City Manager Howard Martin, ACM/Utilities George Hopkins ITEMS FOR INDIVIDUAl, CONSIDERATION: 5) Consider making a recommendation to City Council respecting the approval of the proposed Amended Water and Wastewater Impact Fee Ordinance. Howard Martin, ACM of Utilities, presented this item. Martin informed the Board that on February 3, 2003 and March 17, 2003 staff presented the Board with the Duncan and Associates Capital Improvement Plan for Impact Fees and the impact fees calculated from that study. At the rd .... February 3 meeting, the PUB recommended to Council a one zone impact fee for water in the amount of $3,155 and a 2-zone impact fee for wastewater, Hickory/Pecan Creek Basins (zone 1) and Clear Creek Basin (zone 2) at the calculated credit of $1,703 and $2,614 respectively. Staff has since had discussions with potential developers in zone two and has developed a phased-in approach to the fees for that zone in order to spur growth more quickly. Included in that discussion, staff outlined the idea of up-front developer contributions to offset the initial cost of providing service in zone two where no service currently exists. These funds would be used to help offset infrastructure costs until development began to occur. These impact fees could be collected to pay those costs. The concept of developer contributions would be treated separately and approached through development agreements. Martin explained that on March 25~h and April 15~h the City Council held public hearings related to the impact fees, which included various impact fee and water and wastewater rate comparisons, both across the State of Texas as well as in Denton County. Martin noted that the Board raised additional questions regarding infill development and the cost of impact fees as they relate to stimulating that development. He explained that the proposed ordinance attempts to address that issue by identifying the impact fee charged based on meter size. Staff also identified a lower water usage rate for single-family residences of less than 1,300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 47 48 49 5O square feet, built on a lot size less than 5,000 square feet. Based on the lower usage, staff is proposing a .7 meter equivalency factor for those single-family residences meeting the criteria. White stated that the ordinance proposes a lot size be less than 5,000 square feet meaning that a 50x 100' lot would not qualify. He stated that there is a lot of land in Southeast Denton platted with 40' lots. If one has a 40' lot with 10' setbacks on from and back and 10' on either side it would not qualify. White recommended that the equivalency factor of .7 be changed to .5 for single-family, based on a lot size of less than 6,000 square feet instead of 5,000 square feet. Martin said that staff could accept a lot size of equal to or less than 6,000 square feet. Martin explained that current data provides enough information to defend the 0.7-meter equivalency per service unit but not the 0.5 equivalency. Cheek memioned that Mike Copeland was going to research the legality of using 0.5- equivalency factor. Martin indicated that staff had spoken to Terry Morgan the attorney who structured the original impact fees. Staff is confident in using a .7-meter equivalency per service unit and would not have any problem using 6,000 square feet as the minimum. Cheek favored the 6,000 square foot minimum and the .5 equivalency factor. This would provide incentive to build houses instead of apartments and promote a higher standard of infill development in areas in need of investment. White stated that 98% of all construction in Southeast Denton is Denton Affordable Housing and Habitat for Humanity housing that does not pay taxes. White moved to amend the definition oflnfill development (7) in the proposed ordinance to a lot size of less than 6,000 square feet and to change the equivalency factor to a .5 multiplier, with a second from Cheek. The motion was approved unanimously. White commented that the land in north Denton is considerably cheaper than land to the south, which already has wastewater treatmem plains in place and the City of Demon is having to build new plants in the north. He stated that he did not see any other city in the water/wastewater comparison that has parity with Denton. Smith asked staff to confirm his understanding that the $3,155 is the calculated single zone impact fee for water and $2,614 is the calculated impact fee for zone 2 wastewater and the proposal is to phase in the wastewater impact fee for Clear Creek to help speed development. Martin explained that it also establishes Hickory/Pecan Creek at the 50% default value. He also memioned that staff had also considered keeping Hickory/Pecan at $1,437 through the full five years and moving the calculated the credit for years six through ten. That establishes Hickory/Pecan at 50% credit and phases Clear Creek in over a period of time. Martin reminded the Board that their previous discussion resulted in recommending the calculated credit because that was the closest scenario that allows new growth to pay for itself, which has been the existing policy direction that we have received from the City Council. Board Member Charldean Newell stated that the City is clearly competitive on the water impact fees because they are not having to build water plants, but we are having to build a new wastewater treatment plant. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 47 48 49 City Manager, Mike Conduff, explained that the City Council requested that staff call neighboring cities to determine if they were going to be updating their rates. Martin stated that other communities initiated their impact fees two or three years ago. Consequemly, their five-year window may be approaching. City Council was also imerested in identifying cities that have no impact fees. Staff will be contacting communities that do not have water or wastewater impact fees. Newell stated that voting constituents of the City Council are not going to be looking at the impact fees. They will be looking at the rates. Their expression of displeasure will be far greater if we have to plan on a large rate increase. Martin responded that there has never been any serious opposition as it relates to using the calculated credit for single-zone water. Most discussions have been associated with the level of increase in wastewater impact fees and the decision regarding two zones. The decision now is whether to use the single calculated credit approach for each of the two basins, a 50% credit for Hickory/Pecan Creek Basin (zone 1) and a calculated credit for Clear Creek Basin (zone 2), or other phasing options in each of the zones that the Board might be willing to consider. Smith pointed out that, if the City Council follows their own policy direction, they favor a water impact fee in the amount of $3,155 and a wastewater impact fee of $2,614. He stated that the City Council would be altering their previous policy decision by using the phased-in approach. Smith said he had no problem with the phased-in concept, but poimed out that the City Council could not have both. Smith also stated that in previous discussions the Board had discussed developer agreemems. He informed the Board that the developer agreemems for Clear Creek are a very importam aspect of this proposal, which, depending on their structure, could provide financial advamage for the City. Martin responded that legal council determined that it is not possible to address those issues in the ordinance. He also explained that impact fees must be collected at the time of service request in the ordinance. However, the collection of impact fees at the developmem stage could be accomplished as a componem of the developmem agreemem, which would have greater flexibility than the ordinance. Martin disclosed that the City needs a minimum of 500 SFE's in the basin to be financially viable and explained that staff is trying to provide a financial incentive for the developers to initiate their projects as soon as possible. Originally, the Board outlined criteria asking for $3M up-froM tied to the impact fees to mitigate the risk to $12M worth of infrastructure in the basin. Staff then suggested that by requiring $1M up-froM, not tied to impact fees, it would provide a similar financial impact. White asked for more information regarding a proposed developmem agreemem for phase one and voiced his concern that Sec. 26-230.c of the ordinance provides a great deal of flexibility regarding the developers' proportional share of the costs for water and wastewater capital improvements. Tim Fisher, Assistant Director of Water Utilities, explained that the paragraph means that if the developer builds the infrastructure as part of his requirements, and the components were a part of the capital improvement plan, he would be given the credit for those components. Martin informed the Board that there are 500 SFE's in phase one. He reported that staff has seen the developer's financial proforma and it appears that the homes will range in price from $135,000 initially up to $160,000. The developer was initially considering a lift station to force 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 47 48 49 main wastewater back over to the Hickory/Pecan basin as a first phase. The cost of that project was anticipated to be approximately $750,000. Over the course of the 1 O-year construction project, the developer would have to spend approx. $3.5M in infrastructure improvemems to transport the wastewater from the development back to Pecan Creek, which would require system improvements necessary to prevent overflows in areas that could handle that capacity. Martin explained that, by asking the developer for $1M up from, the City can provide the capacity to satisfy wastewater needs in that basin. Martin also informed the Board that staff has been talking to Beaver Creek Homes and Chip DeMoss of the old Denton County Development District #4 and believe that the City can work through details of their development and get additional up-front cash contributions through development agreements. White asked if Beaver Creek would be required to put up $1M. Martin answered him by saying they probably would not because Beaver Creek Homes is a much smaller subdivision and would have different financial criteria associated with their development. Martin explained that the Denton County Development District's Equestrian Center has a signature 18-hole golf course, which is why the City is considering building the effluem line in conjunction with collection system. Smith asked if the Clear Creek project was west of the other two developments. Martin responded that the Beaver Creek project would be located near Stewart Road and Loop 288 and the Equestrian Center would be located near the new Aquatic Center before one gets to Clear Creek on the west side. Smith pointed out that it is a bargain for Clear Creek at a million dollars and the flip side is that the City is paying $12M to provide them with a long-term solution, whereas the other solution of a lift station was simply accommodating the developer's needs and the City did not have to pay $12M. Martin reminded the Board that the City is under an administrative order for Pecan Creek sewer overflows. Therefore, one of the City's concerns was pushing additional flow into Cooper Creek basin without the appropriate infrastructure improvements. Smith said his point was that $1M up-front is a great deal for the Clear Creek Developmem. He poimed out that other developers could ask why they should comribute $1M when the line is already there. Smith remarked that it would be importam for the City of Demon to set minimum requirements on a pro-rata basis for that line, or minimum up-front requirements for future developments. Martin informed the Board that staff has calculated a number of financial options to determine which would be in the best financial imerest for the City and believe that the $1M up-front with no ties to credits is an acceptable option and any similarly structured agreements with Beaver Creek and others would put the City in an acceptable position to move forward with plant construction. Smith asked if Clear Creek would prefer not to do a lift station. Martin explained that the City would rather not build a lift station. Smith asked what would their response be if they were told that the City has to have $3M up-front. Martin responded that the developer's response to the $1M was that he would put up a $1M letter of credit, and Martin added that developers in general want the City of Denton to take all of the risks. Smith asked if the developer agreemems would come back through the Public Utilities Board. Martin explained that the utility only has a few development agreements similar to what is being discussed. The Robson agreement was probably the last, and the Board was a part of that decision making process. He also informed the Board that there have been others that the Board was not been a part of the process, but staff would be glad to bring any agreement for Clear Creek back to the Board if desired. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 32 33 34 35 36 37 38 39 4O 41 42 43 44 45 46 47 48 49 White asked if the Robson Ranch proforma was on schedule. Martin said that they were lagging. He explained that the City had anticipated connecting them to the Denton system in a period of three years. Fisher explained that initially staff expected one-thousand connections in that initial 3-year period and Robson has approached the City and requested that we slow down the municipal pump station project. They do not want to put out the extra cost for the offsite water line extension. White asked how many SFE's are included in the Robson development. Fisher responded that Robson Ranch has approximately 250 meters. They have platted 800 lots and are in the process of platting another 400. Martin informed the Board that the City Council originally approached the infill issue and thought that the impact fees should be cheaper if the development was within the Pecan/Hickory Basin versus no infrastructure in the Clear Creek Basin. He explained that it is hard to justify development in Hickory Creek as being interior to the municipal system or to consider it as infill. He reported that in a discussion of zone 1, staff had to decide whether to use the calculated credit or the 50% credit and structure it in such a way as to provide incentive to build in the Pecan/Hickory basin. Smith asked if it was legal to collect 20% of the impact fee up-front. Martin explained that it was only possible to collect the up-front fees through a development agreement. White asked for clarification of the wastewater impact fees comparison for the first three years. Cheek pointed out that Exhibit 1-A it does not accurately compare the option being considered with the other cities. Smith provided his explanation of Exhibit l-A, Water and Sewer Impact Fees as of 11-22-02. White commented that his understanding is that at the end of five years there would be a full calculated credit on the water and wastewater. Smith added that if the Council was able to have development pay for itself, they would go to the last column immediately and charge the calculated credit. Martin remarked that there are a few Council members who seem to like the idea of performance incentives. Smith moved to approve staff's recommendation as follows: Water Single Impact Fee $3,144 calculated credit Wastewater 2 Separate Zones Hickory/Pecan Creek $1,437 for 2004-2006 (50% credit) $1,570 for 2007-2008 (45% credit) $1,703 for 2009 + (calculated credit) Clear Creek 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 $1,437 for 2004-2006 (same fee as Hickory/Pecan Creek) $1,893 for 2007-2008 (50% credit) $2,614 for 2009+ (calculated credit) Single Family Residences less than 1,300 square feet, on lots less than 6,000 square feet, to be assessed a fee of 50% of the adopted fee for that zone. Norton seconded the motion. The motion was approved unanimously. There being no further business to come before the Board, the meeting was adjourned at 11:40 a.m. Charldean Newell, Chairman Howard Martin, ACM/Utilities Lynn Pedrick, Secretary DRAFT #7 - 042303 MSC (Recommended by PUB) ORDINANCE NO. 2003- AN ORDINANCE OF THE CITY OF DENTON, TEXAS UPDATING IMPACT FEES BY AMENDING CHAPTER 26, "UTILITIES," SECTION 26-210 THROUGH 26-232 OF THE CITY OF DENTON CODE OF ORDINANCES; ADOPTING REVISED LAND USE ASSUMPTIONS AND CAPITAL IMPROVEMENTS PLANS FOR WATER AND WASTEWATER IMPACT FEES; ESTABLISHING NEW SERVICE AREAS FOR WASTEWATER IMPACT FEES; ESTABLISHING NEW MAXIMUM IMPACT FEES PER SERVICE UNIT AND IMPACT FEES TO BE COLLECTED; CREATING SCHEDULES FOR THE ASSESSMENT AND COLLECTION OF IMPACT FEES; REVISING PROCEDURES FOR ADMINISTERING IMPACT FEES; REPEALING CONFLICTING ORDINANCES AND RESOLUTIONS; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $2,000 FOR EACH VIOLATION THEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Texas Local Government Code, Chapter 395 authorizes a city to adopt and to amend impact fees for the purpose of financing capital improvements required by new development; and WHEREAS, the City Council of the City of DeNon, Texas initially enacted water and wastewater impact fees in accordance with Ordinance No. 98-301, dated on the 15th day of September, 1998; and it is now appropriate and lawfully required that the City once again address the issues of Land Use Assumptions and a Capital Improvements Plan, as well as the subject of Amended Water and Wastewater Impact Fees; WHEREAS, the City Council in accordance with law desires to update its impact fee program by amending land use assumptions, service areas, capital improvemems plans and impact fees for water and wastewater facilities; and WHEREAS, the City Council of the City of DeNon, Texas has duly appoimed an Impact Fee Advisory Committee by ordinance; has received written comments from such Committee; and has adopted Land Use Assumptions and a Capital Improvements Plan for amended water and wastewater impact fees all in accordance with the requirements of Texas Local Government Code, Chapter 395; and WHEREAS, the City Council of the City of DeNon, Texas has also received the recommendation of the Denton Public Utilities Board, an advisory committee; and WHEREAS, the City of DeNon, Texas, having complied with all applicable substamive and procedural requiremems of Texas Local Governmem Code, Chapter 395, finds it necessary and appropriate to establish amended water and amended wastewater impact fees to pay the costs of certain capital improvements for new development; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: DRAFT #7 - 042303 MSC (Recommended by PUB) SECTION 1. That the facts, circumstances, and recitations contained in the preambles to this Ordinance are hereby found and declared to be true and correct. SECTION 2. That the Land Use Assumptions for Water and Wastewater impact Fees hereby are amended as set forth in Exhibit A, which is attached hereto and incorporated by reference herein as if fully set forth. SECTION 3. That the Capital Improvements Plan for Water and Wastewater Impact Fees hereby are amended as set forth in Exhibit B, which is attached hereto and incorporated by reference herein as if fully set forth. SECTION 4. That Chapter 26 of the Code of Ordinances of the City of DeNon, Texas, emitled "Utilities," is hereby amended, which shall read as follows: CHAPTER 26: UTILITIES ARTICLE VI. IMPACT FEES Sec. 26-210. Short Title. This Article shall be known and cited as the "DeNon Impact Fee Ordinance." Sec. 26-211. Statement of Purpose. This Article is imended to assure the provision of adequate public facilities to serve new development in the City by requiring each development to pay its proportional share of the costs of such improvements necessitated by and attributable to such new development as related to water and wastewater capital improvements. Sec. 26-212. Authority. This Article is adopted pursuant to Chapter 395 of the Texas Local Government Code and pursuant to the Denton Charter. The provisions of this Article shall not be construed to limit the powers of the City to utilize other methods authorized under state law, or pursuant to other City powers to accomplish the purposes set forth herein, either in substitution or in conjunction with this Article. The effective date of this Article is September 15, 1998. Sec. 26-213. Definitions. The following words, terms and phrases, as used in this Article, shall have the meanings respectively ascribed to them in this Section, unless the comext clearly indicates otherwise: DRAFT #7 - 042303 MSC (Recommended by PUB) (1) Area-related facility means a capital improvement or facility expansion which is designated in the Impact Fee Capital Improvements Plan and which is not a site-related facility. Area-related facility may include a capital improvement, which is located offsite, within, or on the perimeter of the development site. (2) Assessment means the determination of the amount of the maximum impact fee per service unit that can be imposed on new development pursuant to this Article. (3) Capital improvement means any water supply; or treatment facilities; or wastewater treatment facilities that have a life expectancy of three (3) or more years, and are owned and operated by or on behalf of the City. (4) Director means the Director of Water Utilities for the City of Denton, or his or her designee. (5) Facility expansion means the expansion of the capacity of any existing facility for the purpose of serving new development. The term does not include the repair, maintenance, modernization or expansion of an existing facility to serve existing development. (6) Impact fee capital improvements plan means the adopted plan for a service area, as may be amended from time to time, which identifies the water facilities or wastewater facilities and their associated costs which are necessitated by and which are attributable to new development, for a period not to exceed ten (10) years, and which are to be financed in whole or in part through the imposition of water or wastewater impact fees pursuant to this Chapter 26, Article VI. (7) Infill development means a single-family residence of less than 1,300 square feet on a lot of less than 6,000 square feet. (8) Land use assumptions means the projections of population and employment growth and associated changes in land uses, densities and intensities for a service area adopted by the City, as may be amended from time to time, upon which the impact fee capital improvements plan for the service area is based. (9) New development means a project involving the construction, reconstruction, redevelopment, conversion, structural alteration, relocation, or enlargement of any structure, or any use or extension of land, which has the effect of increasing the requirements for capital improvements or facility expansions, measured by the service units to be generated by such activity, and which requires either the approval and filing of a plat, or a re-plat pursuant to the City's subdivision regulations, or the issuance of a building permit. (10) Service area means a geographic area within the City or within the City's extraterritorial jurisdiction, within which impact fees for water or wastewater facilities may be collected for new development occurring within such area and within which fees so collected will be expended for those types of improvements identified in the type of capital improvements plan applicable to the service area. DRAFT #7 - 042303 MSC (Recommended by PUB) (11) Service unit means a standardized measure of consumption, use, generation or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering or planning standards, for a particular category of capital improvements or facility expansions. For water and wastewater facilities, the service unit shall constitute the basis for establishing equivalency within various customer classes based upon the relationship of the continuous duty maximum flow rate in gallons per minute for a water meter of a given size and type compared to the continuous duty maximum flow rate in gallons per minute for a 3/4-inch diameter simple water meter. (12) Single-family equivalency ("SFE") means an equivalency factor, based on the demand associated with the smallest water meter used in the City of Denton, Texas utility system. SFE's are utilized to establish the number of service units to be allocated to various meter sizes used in the City of DeNon, Texas utility system. (13) Site-related facility means an improvemem or facility which is for the primary use or benefit of a new developmem and/or which is the for the primary purpose of safe and adequate provision of water and wastewater facilities to serve the new development and which is not included in the impact fee capital improvemems plan and for which the developer or property owner is solely responsible under subdivision and other applicable regulations. Sec. 26-214. Impact fee as condition of development approval. No new development shall be connected to the City's water or wastewater system within the service area without the assessment of an impact fee pursuant to this Article, and no building permit shall be issued umil the applicam has paid the impact fee imposed herein. Sec. 26-215. Land use assumptions. (a) Said land use assumptions for the City shall be updated at least every five (5) years utilizing the amendment procedure set forth in Texas Local Government Code, Chapter 395. (b) Amendmem to the land use assumptions shall incorporate projections of changes in land uses, densities, imensities and population for the service area over at least a ten (10) year period. Sec. 26-216. Water impact fee service area. There is hereby established an amended water impact fee service area, to include all land within the City and its extraterritorial jurisdiction, as depicted in Exhibit C, which is attached hereto and incorporated by reference herein as if fully set forth. DRAFT #7 - 042303 MSC (Recommended by PUB) Sec. 26-217. Wastewater impact fee service areas. There are hereby established two (2) wastewater impact fee service areas, the boundaries of which are respectively described in Exhibits D and E, which are attached hereto and incorporated by reference herein as if fully set forth. Sec. 26-218. Determination of service units. The number of service units for both water or wastewater impact fees shall be determined by using the land equivalency table, which converts the demands for water or wastewater improvements generated by typical land uses to water meter size, and which is attached hereto as Exhibit F and incorporated by reference herein as if fully set forth. Sec. 26-219. Impact fees per service unit. (a) Maximum impact fees per service unit for each service area shall be established by category of capital improvements. The maximum impact fee per service unit for each service area for each category of capital improvement shall be computed in the following manner: For each category of capital improvements, calculate the total projected costs of capital improvements necessitated by and attributable to new development in the service area identified in the impact fee capital improvements plan; (2) From such amount, subtract a credit in the amount of that portion of utility service revenues, if any, including the payment of debt, to be generated by new service units during the period the capital improvements plan is in effect, including the payment of debt, associated with the capital improvements in the plan; (3) Divide the resultant amount by the total number of service units anticipated within the service area, based upon the land use assumptions for that service area. (b) The maximum impact fee per service unit for water or wastewater facilities by service area shall be as set forth in Schedule 1, which is attached hereto and incorporated herein by reference as if fully set forth. Schedule 1 shall be used to assess impact fees. Schedule 1 may be amended from time to time utilizing the amendment procedure set forth in Section 26-228. (c) The impact fee per service unit which is to be paid by each new development within a service area shall be as set forth in Schedule 2, which is attached hereto and incorporated by reference as if fully set forth, and shall be an amount less than or equal to the maximum impact fee per service unit established in Schedule 1. Schedule 2 may be amended from time to time utilizing the amendment procedure set forth in Section 26-228. DRAFT #7 - 042303 MSC (Recommended by PUB) Sec. 26-220. Assessment of impact fees. (a) Assessmem of impact fees for any new developmem shall be made as follows: (1) For land which is unplatted at the time of application for a building permit or utility connection, or for a new developmem which received final plat approval prior to the effective date of this Article, and for which no re-platting is necessary pursuant to the City's subdivision regulations prior to development, assessment of impact fees shall occur at the time application is made for the building permit or utility connection, whichever first occurs, and shall be the amoum of the maximum impact fee per service unit in effect, as set forth in Schedule 1. (2) For a new developmem which is submitted for approval pursuant to the City's subdivision regulations on or after the effective date of this Article, or for which re-platting results in an increase in the number of service units after such date, assessment of impact fees shall be at the time of final plat recordation, and shall be the amount of the maximum impact fee per service unit in effect as set forth in Schedule 1. (b) Following assessmem of impact fees pursuam to subsection (a), the amoum of impact fee assessment per service unit for that development cannot be increased, unless the owner proposes to change the approved development by the submission of a new application for final plat approval or other development application that results in approval of additional service units, in which case a new assessment shall occur at the Schedule 1 rate then in effect for such additional service units. (c) Following the vacating of any plat or approval of any re-plat, a new assessment must be made in accordance with subsection (a)(2). (d) An application for an amending plat made pursuant to Texas Local Government Code §212.016 V.T.C.A. and the City of DeNon Subdivision Ordinance, and for which no new developmem is proposed, is not subject to reassessmem for an impact fee. Sec. 26-221. Computation of impact fees. (a) Following the filing and acceptance of a written application for building permit, the City shall compute the impact fee due in the following manner: (1) The number of service units shall be determined by the size of the water meter purchased using the land equivalency table incorporated as Exhibit F, or by evaluation of the Director as provided in Section 26-218 or this section; (2) Service units shall be summed for all meters purchased for the developmem; DRAFT #7 - 042303 MSC (Recommended by PUB) (b) (c) (d) (e) (g) (h) (3) The total number of service units shall be multiplied by the impact fee per service unit for water or wastewater service facilities using Schedule 1 then in effect as established in Section 26-219; (4) The amount of each impact fee shall be reduced by any allowable offsets or credits for that category of capital improvements, in the manner provided in Section 26-223. The amount of impact fee due for new development shall not exceed the amount computed by multiplying the assessed fee for water or wastewater service by the total number of service units generated by the development. The amount of impact fee due for redevelopment shall not exceed the amount computed by multiplying the assessed fee for water or wastewater service by the net increase in service units generated by the redevelopment. The developer may submit or the Director may require the submission of a study, prepared by a professional engineer, licensed in the State of Texas, clearly indicating the number of water and/or wastewater service units which will be consumed or generated by the new development. The Director will review the information for completeness and conformity with generally accepted engineering practices and will, when satisfied with the completeness and conformity of the study, multiply the number of service units determined by the study times the impact fee per service unit contained in Section 26-219 above to determine the total impact fee to be collected for the development. The Director may also use recent historical water billing records for existing customers to determine water demands and SFE equivalents in accordance with data from the most recent Capital Improvements Plan. Whenever the property owner increases the number of service units for a development, the additional impact fees collected for such new service units shall be determined based on Schedule 1 and applicable offsets, credits, and discounts then in effect and such additional fee shall be assessed and collected at the time the additional meters are purchased. In the event the property owner decreases the number of service units for a development, the property owner shall be entitled to a refund of the impact fee for impact fees actually paid, but only for the amounts represented by the decrease in service units based on the assessed fee and offsets, credits, or discounts applicable at the time the fee was paid. If the building permit for the property on which an impact fee is paid has expired and a new application is thereafter filed for the identical property and the number of service units, the impact fee previously paid satisfies the requirements of this Article. The impact fee shall attach to the property for which the impact fee was paid and shall not be transferable to other properties or service units. No building permit shall be issued if the applicant cannot verify payment of the DRAFT #7 - 042303 MSC (Recommended by PUB) appropriate impact fee and other applicable fees or if existing facilities do not have actual capacity to provide service to the new connection(s). Sec. 26-222. Collection of impact fees. (a) Except as otherwise provided in this Section, the impact fee for the new development shall be collected at the time the City issues a building permit, or if a building permit is not required, at the time an application is filed for a new connection to the City's water or wastewater system or for an increase in water meter size. (b) Except as otherwise provided by contracts with political subdivisions, developer's contracts, or wholesale customers, no building permit shall be issued until all impact fees have been paid to the City. (c) The City may enter into an agreement for capital improvements with a property owner pursuant to Section 26-229 that establishes a different time and manner of payment. (d) The owner of an existing single-family homestead housing unit, actually occupying said homestead, may make payments of any water or wastewater impact fee required by the Article in monthly installments over a period of not more than five (5) years from the date payment of the fee is otherwise required by this Article. The owner of said homestead must execute a promissory note, deed of trust, homestead affidavit, or other documents to be prepared by the City Attorney sufficient to establish an enforceable lien on the real property. All such installment payments shall be subject to interest at a rate equal to a twelve-month average of the 5-year Treasury Note. The interest rate on such note shall be adjusted annually, according to the most current twelve-month average. (e) In the event that a property owner agrees to construct or finance capital improvements in the capital improvements plan pursuant to Section 26-229, the costs of which are to be reimbursed to the owner from impact fees paid from other new developments that will use such facilities, the City may collect impact fees from such other new developments at the time final plats are recorded for such development. Schedule 1 sets the assessment rate and establishes maximum impact fees as set forth in subparagraphs (1) and (2) below: (1) For a new development for which final plat recordation occurred on or after September 15, 1998, but before June 11, 2003, the maximum impact fee per service unit shall be $2,044 for the water service area, and $483 for the Zone 1 wastewater service area. (2) For a new development for which final plat recordation occurred prior to September 15, 1998, on or after June 11, 2003, or for any new development which is not subject to paragraph (1), the maximum impact fee per service unit shall be as follows: $3,155 for the water service area; $1,703 for the Zone 1 wastewater service area; and DRAFT #7 - 042303 MSC (Recommended by PUB) $2,614 for the Zone 2 wastewater service area. (g) Schedule 2 sets the collection rate for impact fees as set forth in subparagraphs (1) and (2) below: (1) Except as provided in paragraph (2), impact fees shall be collected and paid as follows: Water Service Area: $3,155 per service unit Wastewater Service Area (Zone 1): $1,437 per service unit (from June 11, 2003 until June 10, 2006) $1,570 per service unit (from June 11, 2006 until June 10, 2008) $1,703 per service unit (from June 11, 2008 until June 10, 2013) Wastewater Service Area (Zone 2): $1,437 per service unit (from June 11, 2003 until June 10, 2006) $1,893 per service unit (from June 11, 2006 until June 10, 2008) $2,614 per service units (from June 11, 2008 until June 10, 2013) Provided, however, Wastewater Service Area Impact Fees for Zone 1, for Single-Family Residences of less than 1,300 square feet, that are located on lots of less than 6,000 square feet, shall instead be charged, and the City shall collect a Wastewater Service Area Impact fee of 50% of the adopted Wastewater Service Area Impact Fee for Zone 1. (2) For a new development for which final plat recordation occurred on or after September 15, 1998, but before June 11, 2003, and for which no new service units have been added, impact fees shall be collected as follows: Water Service Area Wastewater Service Area (Zone 1) $2,044 per service unit $483 per service unit Sec. 26-223. Offsets and credits. (a) The City shall offset the reasonable value of any area-related facilities, identified in the impact fee capital improvements plan and constructed pursuant to an agreement with the City, except as otherwise provided therein, which are dedicated to and received by the City on or after the effective date of this ordinance, against the amount of the impact fee DRAFT #7 - 042303 MSC (Recommended by PUB) due for that category of capital improvement. No offsets or credits shall be provided for required over-sizing of water and wastewater lines or lift stations not identified in the capital improvements plan or for_pro-rata payments to repay other developers for such over-sizing pursuant to Chapter 35-Development Code; and Subchapter 21-Water & Wastewater Standards. (b) The City shall credit any new development that occurs subsequent to the effective date of this Article, any amount of capital recovery fees which have been collected by the City pursuant to duly adopted ordinances and any impact fees collected by the City pursuant to this Article. (c) All offsets and credits against impact fees shall be subject to the following limitations and shall be granted based on this Article and additional standards promulgated by the City, which may be adopted as administrative guidelines. No offset or credit shall be given for the dedication or construction of site-related facilities. (2) No offset or credit shall exceed the impact fee to be collected from new development as established in Section 26-219. (3) The unit costs used to calculate the offsets shall not exceed those assumed for the capital improvements included in the impact fee capital improvements plan for the category of facility within the service area for which the impact fee is imposed. (4) If an offset or credit applicable to a plat has not been exhausted within ten (10) years from the date of the acquisition of the first building permit issued or connection made after the effective date of this Article or within such period as may be otherwise designated by agreement for capital improvements pursuant to Section 26-229, such offset or credit shall lapse. (5) In no event will the City reimburse the property owner or developer for an offset or credit when no impact fees for the new development can be collected pursuant to this Article or for any amount exceeding the total impact fees collected or due for the development for that category of capital improvement, unless otherwise agreed to by the City. (6) No offset shall exceed an amount equal to the eligible costs of the improvement multiplied by a fraction, the numerator of which is the impact fee per service unit due for the new development as computed using Schedule 2 and the denominator of which is the maximum impact fee per service unit for the new development as computed using Schedule 1. (7) Offsets or credits for area-related facilities dedicated to and accepted by the City for a development prior to the effective date of this Article shall be prorated 10 DRAFT #7 - 042303 MSC (Recommended by PUB) among the total number of service units within such development and reduced by an amount equivalent to the number of existing service units within such development and shall be further reduced by the amount of any participation funds received from the City and by any payments received from other developments who utilize the system facility. (8) The City may participate in the costs of an area-related improvement to be dedicated to the City, including costs that exceed the amount of the impact fees due for the development under Schedule 1 for that category of capital improvements, in accordance with policies and rules established under the City's subdivision regulations and when incorporated into an agreement for capital improvements pursuant to Section 26-229. The amount of any offset shall not include the amount of the City's participation. (d) Unless an agreement for capital improvements is executed providing for a different manner of offsetting or crediting impact fees due pursuant to Section 26-229, an offset or credit associated with a plat shall be applied to reduce an impact fee at the time of application for the first building permit or at the time of application for the first utility connection for the property, in the case of land located within the City's extraterritorial jurisdiction, and, thereafter, to reduce impact fees subsequently to be collected, until the offset or credit is exhausted. Sec. 26-224. Establishment of accounts. (a) The City's Department of Finance shall establish separate interest-bearing accounts clearly identifying the category of capital improvement (i.e. water facilities and wastewater facilities) within the service area for which the impact fee is collected. (b) Interest earned by each account shall be credited to the account on which it is earned and shall be used solely for the purposes specified for impact fees as authorized herein. (c) The City's Department of Finance shall establish adequate financial and accounting controls to ensure that impact fees disbursed from the account are utilized solely for the purposes authorized in this Article. Disbursement of funds shall be authorized by the City at such times as are reasonably necessary to carry out the purposes and intent of this Article; provided, however, that any fee paid shall be expended within a reasonable period of time, but not to exceed ten (10) years from the date the fee is deposited into the account. (d) The City's Department of Finance shall maintain and keep adequate financial records for each such account, which shall show the source and disbursement of all revenues, which shall account for all monies received, the number of service units for which the monies are received, and which shall ensure that the disbursement of funds from each account shall be used solely and exclusively for the provision of projects specified in the impact fee capital improvements plan as area-related capital projects. The City's Department of Finance shall also maintain such records as are necessary to ensure that refunds are 11 DRAFT #7 - 042303 MSC (Recommended by PUB) appropriately made in accordance with this Article. The records of the account into which impact fees are deposited shall be open for public inspection and copying during ordinary business hours. The City may establish a fee for copying services. Sec. 26-225. Use of proceeds of impact fee accounts. (a) The impact fee collected pursuant to this Article may be used to finance or to recoup capital construction costs for water and wastewater facilities identified in the impact fee capital improvements plan and for any purpose authorized in Texas Local Government Code, Chapter 395, V.T.C.A. as amended. Impact fees may also be used to pay the principal sum and interest and other finance costs on bonds, notes or other obligations issued by or on behalf of the City to finance such capital improvements or facilities expansions. (b) Impact fees collected pursuant to this Article shall not be used to pay for any of the following expenses: Construction, acquisition, or expansion of capital improvements or assets other than those identified for the water and wastewater utility in the impact fee capital improvements plan; (2) Repair, operation, or maintenance of existing or new capital improvements or facilities expansions; (3) Upgrading, expanding, or replacing existing capital improvements to serve existing development in order to meet stricter safety, efficiency, environmental or regulatory standards; (4) Upgrading, expanding, or replacing existing capital improvements to serve existing development; provided, however, that impact fees may be used to pay the costs of upgrading, expanding or replacing existing capital improvements in order to meet the need for new capital improvements generated by new development; or (5) Administrative and operating costs of the City. Sec. 26-226. Appeals. (a) The property owner or applicant for new development may appeal the following decisions to the City Council: (a) the applicability of an impact fee to the new development; (b) the method of calculating the amount of the impact fee due; (c) the availability or the amount of an offset, credit or rebate; (d) the application of an offset or credit against an impact fee due; or (e) the amount of a refund due, if any. (b) The burden of proof shall be on the appellant to demonstrate that the amount of the fee or 12 DRAFT #7 - 042303 MSC (Recommended by PUB) (c) the amount of the offset, credit or rebate was not calculated according to the provisions of this Article. The appellant must file a notice of appeal with the City Secretary within thirty (30) days following the determination of the amount of the impact fees to be paid by the development. If the notice of appeal is accompanied by a bond or other sufficient surety satisfactory to the City Attorney in an amount equal to the original determination of the impact fee due, the development application may be processed while the appeal is pending. Sec. 26-227. Refunds. (a) Any impact fee or portion thereof collected pursuant to this Article which has not been expended within ten (10) years from the date of payment, shall be refunded, upon application, to the record owner of the property at the time the refund is paid, or, if the impact fee was paid by another governmental entity, to such governmental entity, together with interest calculated from the date of collection to the date of refund at the statutory rate as set forth in Vernon's Ann. Civil Statutes, Title 79, Art. 1C.002, or any successor statute. (b) Upon the request of an owner of the property on which an impact fee has been paid, the City shall refund such fees if: (1) Existing service is available and service is denied; or (2) Service was not available when the fee was collected and the City has failed to commence construction of facilities to provide service within two (2) years of fee payment; or (3) Service was not available when the fee was collected and has not subsequently been made available within a reasonable period of time considering the type of capital improvement or facility expansion to be constructed, but in any event no later than five (5) years from the date of the payment. (c) The City shall refund an appropriate proportion of impact fee payments in the event that a previously purchased but uninstalled water meter for which the impact fee has been paid is replaced with a smaller meter, based on the service unit differential of the two (2) meter sizes and the fee per service unit at the time of the original fee payment. (d) A petition for refund under this section shall be submitted to the Director on a form provided by the City for such purpose. Within one (1) month of the date of receipt of a petition for refund, the Director must provide the petitioner, in writing, with a decision on the refund request, including the reasons for the decision. If a refund is due to the petitioner, the Director shall notify the Assistant City Manager of Finance and request that a refund payment be made to the petitioner. 13 DRAFT #7 - 042303 MSC (Recommended by PUB) Sec. 26-228. Update of plan and revision of fees. (a) The City shall update its land use assumptions and capital improvements plans at least every five (5) years, commencing from the date of adoption of such plans, and shall recalculate the impact fees based thereon in accordance with the procedures set forth in Texas Local Government Code, Chapter 395, or in any successor statute. (b) The City may review its land use assumptions, impact fees, capital improvements plans and other factors such as market conditions more frequently than provided in subsection (a) to determine whether the land use assumptions and capital improvements plans should be updated and the impact fee recalculated accordingly, or whether Schedules 1 or 2 should be changed. Schedule 2 may be amended without revising land use assumptions and capital improvements plans at any time prior to the update provided for in subsection (a), provided that the impact fees to be collected under Schedule 2 do not exceed the impact fees assessed under Schedule 1. (c) If, at the time an update is required pursuant to Subsection (a), the City Council determines that no change to the land use assumptions, capital improvements plan or impact fee is needed, it may dispense with such update by following the procedures in Texas Local Government Code, Section 395.0575. (d) The City may amend by resolution the land use equivalency table (Exhibit F) at any time prior to the update provided for in Subsection (a), provided that the number of service units associated with a particular land use shall not be increased. Sec. 26-229. Agreement for capital improvements. An owner of a new development may construct or finance a capital improvement or facility expansion designated in the impact fee capital improvements plan, if required or authorized by the City, by entering into an agreement with the City prior to the issuance of any building permit for the development. The agreement shall be on a form approved by the City and shall identify the estimated cost of the improvement or expansion, the schedule for initiation and completion of the improvement or expansion, a requirement that the improvement be designed and completed to City standards and such other terms and conditions as deemed necessary by the City. The agreement shall provide for the method to be used to determine the amount of the offset to be given against the impact fees due for the development or any reimbursement to the owner for construction of the facility. Sec. 26-230. Use of other financing mechanisms. (a) In addition to the use of impact fees, the City may finance water and wastewater capital improvements or facilities expansions designated in the impact fee capital improvements plan through the issuance of bonds, through the formation of public improvements 14 DRAFT #7 - 042303 MSC (Recommended by PUB) districts or other assessment districts, or through any other authorized mechanism, in such manner and subject to such limitations as may be provided by law. (b) Except as otherwise provided herein, the assessment and collection of a impact fee shall be additional and supplemental to, and not in substitution of, any other tax, fee, charge or assessmem which is lawfully imposed on and due against the property. (c) The City may pay all or part of impact fees due for a new developmem taking imo account available offsets and credits pursuant to duly adopted criteria. Sec. 26-231. Conflicting ordinances. All ordinances or parts of ordinances that are in force when the provisions of this ordinance become effective, which are inconsistent or in conflict with the terms or provisions contained in this ordinance, are hereby repealed to the extent of the conflict. Sec. 26-232. Reserved. SECTION 4. That any person violating any provision of this Ordinance shall, upon conviction, be fined a sum not exceeding $2,000. Each day that a provision of this Ordinance is violated shall constitute a separate and distinct offense. SECTION 5. That if any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of DeNon, Texas hereby declares it would have enacted such remaining portions, despite any such invalidity. SECTION 6. That this Ordinance shall repeal any conflicting ordinances and resolutions to the contrary; it being the intention of the City Council to fully amend all provisions of Chapter 26 of the City of Denton, Texas Code of Ordinances dealing with Impact Fees. SECTION 7. That this Ordinance shall become effective fourteen (14) days 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 Demon, DeNon County, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __day of ,2003. EULINE BROCK, MAYOR 15 DRAFT #7 - 042303 MSC (Recommended by PUB) ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: [GO TO NEXT PAGE FOR THE 6 EXHIBITS] 16 DRAFT #7 - 042303 MSC (Recommended by PUB) EXHIBIT "A" - Land Use Assumptions for Water and Wastewater Impact Fees EXHIBIT "B" - Capital Improvements Plans for Water and Wastewater Impact Fees EXHIBIT "C" - Amended Water Impact Fee Service Area EXHIBIT "D" - Wastewater Impact Fee Service Area - Zone 1 EXHIBIT "E" - Wastewater Impact Fee Service Area - Zone 2 EXHIBIT "F" - Land Equivalency Table S:\Our Documents\Ordinances\03\2003 Denton Amended Impact Fee Ordinance - WWW Draft #7 042303 MSC.doc 17 AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET May 13, 2003 City Manager's Office Mike Conduff, City Manager SUBJECT Consider nominations and appointments to the City's Boards and Commissions. BACKGROUND This is the final nomination for this quarter. Council will be considering annual nominations in June/July. Bob Ralph has resigned from the Historic Landmark Commission. This is a nomination for Mayor Brock. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary Presentation to Denton City Council May 13, 2003 6:30 pm HANDOUT TO COUNCIL I am here tonight representing the 360 Denton City residents now living in Robson Ranch. My subject is the need for the City to begin a "911 Emergency Response Facility" within or close by Robson Ranch. Our immediate need is for 911 Paramedic Emergency Services. We need a response time of 5 minutes, not the present 10 or more minutes. Within your Capital Improvement Budget for 2002-07, adopted September 2002, the building of such a facility would begin in the fall of 2003, completed in the spring of 2004 with appropriate staffing in the 2002/03 operating budget. We believe the capital budget for fire station #7 to be $1.5 million including land and building. We have now discovered that.~City staff proposes to move the construction of fire station #7 with paramedic staffing out to years 2007 or later. (per City Council Meeting of Feb. 11, 2003) In an April 22 e-mail to Robson Ranch resident Tracy Olson and restated at our home owners meeting of May 1, we have been informed by councilman McNeill and I quote" the rate of growth of Robson Ranch has slowed from original expectations and this has obviously caused some changes in priorities. Public safety, however continues to be a top priority ........ ". Research of this subject finds that the best response time we can expect from City paramedics presently is 10 minutes. It could be longer. We have been informed by your paramedics and several MD's that if it takes longer than 7 minutes, "just cancel the medics, send for the hearse". Regarding Robson Ranch iSsues, we have contacted Robson executives who stated: 1. "Robson is meeting or exceeding ALL sales projections. For the past 2 months, ~ve are averaging 20 plus net sales per month". 2. "Robson Ranch residents should expect the same (emergency) response times as the rest of Denton. That was a specific condition to the voluntary annexation of the property into the City and the additional (CITY) layer of taxation". -2- 3. Robson has offered the City improved land for a fire station, paramedic services, and a police station. Robson has informed us that as late as April, Denton officials have not responded to Robson's offer for free improved land with an estimated value of up to $500,000. We have been told the offer is still on the table but the City needs to make a decision soon. For a senior community such as ours, over 95% of all 911 calls are for paramedics. Our present median age is 61 plus and this medium age will only go up in coming years. We need paramedics close by!! IN CONCLUSION, we are asking, for your help so that construction of a facility for at least paramedic services can begin this fall and completed and staffed in early 2004, as approved by you last September. By next summer, we should have a population approaching 1000. We need to look at' all options,to get a 911 emergency paramedic facility. We want to work with you to "JUST GET IT DONE". We need to reprice the cost of fire station #7 for the cost of only the building, not the land. Perhaps we need to look at a temporary solution if the City can't move fast enough to build #7 by next Spring. For example, what about renting a modular building to house the paramedics and equipment temporarily, until #7 could be built in late 2004 or early 2005. Perhaps they could be located in or next to Robson's maintenance yard on Robson Ranch Road. We are sure that working together as a team, we can resolve this problem. Perhaps we need to think "out side the box". The way things appear to be going, with the proposed construction of fire station #7 and staffing in 2007 or later, one thing is certain - we will lose some of our loved ones needlessly because paramedics presently cannot respond in time. We need your help and commitment that this will not happen! Thank for your time this evening, and (I/we) leave you with one QUESTION: "WHERE DO WE GO FROM HERE?" John Wolfe 9425 Grandview Drive Robson Ranch Denton, Texas