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HomeMy WebLinkAboutSeptember 21, 2004 Agenda AGENDA CITY OF DENTON CITY COUNCIL September 21, 2004 After determining that a quorum is presem, the City Council of the City of DeNon, Texas will convene in a Work Session on Tuesday, September 21, 2004 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. Receive a report, hold a discussion, and give staff direction regarding regional transportation issues. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of September 21, 2004. NOTE: The City Council reserves the right to adjourn imo a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, including without limitation, Sections 551.071-551.086 of the Texas Open Meetings Act. Regular Meeting of the City of DeNon City Council on Tuesday, September 21, 2004 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE mo U.S. Flag Texas Flag "Honor the Texas Flag - I pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS mo Proclamations/Awards 1. Consider a Resolution of Appreciation for Brenda Ormsby. Recognition of staff accomplishments 3. CITIZENS REPORTS mo Review of procedures for addressing the City Council. Receive citizen reports from the following: 1. Harvey Sparhawk regarding water bill adjustmems and means for redress. 2. Robert Donnelly regarding drainage problems. 3. John Ryan regarding wind devices, City language, and uses of City services. 4. BUDGET CONSENT AGENDA Budget Consem Agenda Items A-U are items that support the proposed 2004-2005 budget and have been previously considered in budget work sessions. Approval of the Budget Consem Agenda authorizes the City Manager or his designee to implemem each item in accordance with the recommendation. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Budget Consent Agenda Items A-U will be approved with one motion. City of DeNon City Council Agenda September 21, 2004 Page 2 mo Consider adoption of an ordinance amending the Schedule of Water Rates contained in Ordinance No. 2003-263 for Water Service and Water Rates; amending the metered water from fire hydram rate (Schedule WFH); amending the wholesale treated water service rate to Upper Trinity Regional Water District (Schedule WW2); amending the wholesale raw water service rate to Upper Trinity Regional Water District (Schedule WRW); amending the wholesale raw water pass-through rate for Upper Trinity Regional Water District from Lake Chapman imo Lake Lewisville (Schedule WCL); adding a fee schedule for water laboratory testing fees; providing for a repealer; providing for a severability clause; and providing for an effective date. Bo Consider adoption of an ordinance amending the Schedule of Wastewater Rates comained in Ordinance No. 2003-264 for Wastewater Service; amending the residemial wastewater service - facility charge and volume charge (Schedule SR); amending the mobile home park - facility charge and volume charge (Schedule SMH); amending the commercial/industrial wastewater service - facility charge, volume charge, sampling and analysis charge, and surcharge; (Schedule SC); amending the commercial/industrial wastewater service rate which measures with dedicated meters (sub-meters) water for wastewater billing - facility charge, volume charge and surcharge (Schedule SCD); amending the commercial/industrial wastewater service rate which measures with dedicated meters (sub-meters) water excluded from wastewater billing - facility charge and surcharge (Schedule SCS); amending the equipment services facilities and restaurams and food service establishmem - facility charge, volume charge, sampling and analysis charge, and surcharge (Schedule SEE); amending the metered wastewater inside and outside corporate limits - facility charge, volume charge, sampling and analysis charge, and surcharge (Schedule SM); amending the sale of treated wastewater effluem - facility charge (Schedule SGE); amending the wholesale wastewater treatment service for a governmental agency, division, or subdivision; sampling and analysis charge, and surcharge (Schedule SSC); amending the Dyno Dirt Products 50% discoum for purchases (Schedule CWM); amending the grass/brush/leaves charge for comaminated grass, brush, or leaves (Schedule GBL); adding a fee for treated effluem wastewater tap fees (Schedule STE); providing for a repealer; providing for a severability clause; and providing for an effective date. Co Consider adoption of an ordinance amending the Schedule of Solid Waste Rates comained in Ordinance No. 2003-351 as authorized by Chapter 24 of the Code of Ordinances of the City of DeNon, Texas; providing that the provisions of sections 26-3, 26-4, 26-5, 26-7, 26-8(a), and 26-9 of the Code of Ordinances of the City of Denton, Texas shall expressly apply to City of Denton Solid Waste Service; amending the manual residential rate by lowering the monthly charge; adding a provision limiting the manual residemial rate charge to eight (8) bags per collection day; adding a provision in the manual residential rate charge that establishes a service charge for the collection and disposal of refuse in excess of eight (8) bags per collection day; adding a requiremem to the comainerized collection service rate requiring all refuse to be placed within the cart with the cart lid fully closed; adding a provision that establishes the automatic collection and City of DeNon City Council Agenda September 21, 2004 Page 3 billing for excess volumes of refuse and/or yard waste (Schedule SWR); amending the residential recycling and processing service rate title; amending the residemial recycling and processing services momhly rate charge (Schedule SWRR); amending the residemial financial need discoum rate title; adding three qualification requirements for the residential financial need discount rate; adding a provision limiting the period for which the residemial financial need discoum is effective to eligible recipiems who receive funds from the plus-one program (Schedule SWRD); amending the commercial solid waste collection services rate title; adding a provision clarifying the comainer same day extra service charge; adding a provision wherein the use of shared commercial comainers shall be determined by solid waste department staff, including the appropriate rates therefore; amending the roll-off container relocation fee; adding a provision that states that if a loaded side-load or front-load container exceeds the applicable weight limitation set forth in this ordinance, that the customer shall empty the container and the solid waste department shall only collect and dispose of the refuse that is at or below the weight limitation prescribed by this ordinance (Schedule SWC); amending the commercial recycling services section on acceptable recyclable materials; (Schedule SWCR); adding the collection and transportation services permit rate schedule (Schedule SWP); adding a provision clarifying the applicable landfill inert materials rate respecting clean and uncomaminated brick; amending the special waste provisions; adding the landfill other charges rate (Schedule SWL); providing for a repealer; providing for a severability clause; and providing an effective date. Do Consider adoption of an ordinance of the City of DeNon, Texas providing for the Schedule of Miscellaneous Fees, deposits, billings and procedures for administrative services to city customers and taxpayers comained in Ordinance No. 2003-266; providing for a repealer; providing for a severability clause; and providing for an effective date. mo Consider adoption of an ordinance of the City of DeNon, Texas supplememing the schedule of rates comained in Ordinance No. 2003-262 for Electric Service by adding the residemial renewable energy service rate schedule (Schedule RG); providing for a repealer; providing for a severability clause; and providing for an effective date. Fo Consider adoption of an ordinance amending, repealing, and replacing Ordinance No. 91-039 of the City of DeNon, Texas, establishing fees to be charged for overdue books and materials for the libraries of the City of DeNon, Texas; repealing all ordinances in conflict herewith; providing a severability clause; and providing for an effective date. Go Consider adoption of an ordinance amending Section 22-38 of Chapter 22 (Parks and Recreation) of the Code of Ordinances of the City of DeNon, Texas, relating to facility and program fees by adopting a Schedule of Fees; repealing all fees in conflict with such schedule; repealing Ordinance No. 2003-267 and all ordinances in conflict with the new Schedule of Fees; and providing an effective date. City of Demon City Council Agenda September 21, 2004 Page 4 Ho Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Central Business District Association of Denton, Texas, d/b/a Denton Main Street Association for the payment and use of hotel tax revenue; and providing an effective date. Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Demon and the Demon Black Chamber of Commerce for the payment and use of hotel tax revenue; and providing an effective date. Jo Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Demon and the Demon Chamber of Commerce (Convemion and Visitor Bureau) for the paymem and use of hotel tax revenue; and providing an effective date. Ko Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Lo Consider adoption of an ordinance authorizing the Mayor to execute an interlocal agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Bayless-Selby House and the Courthouse-on-the-Square Museums; and providing an effective date. Mo Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Denton Festival Foundation for the payment and use of hotel tax revenue; and providing an effective date. No Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Denton Holiday Festival Foundation, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Oo Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Greater Denton Arts Council for the payment and use of hotel tax revenue; and providing an effective date. iD, Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Historical Park Foundation of Denton County, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Qo Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue; and providing an effective date. Ro Consider adoption of an ordinance authorizing the Mayor to execute an agreement between the City of Demon and the Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. City of DeNon City Council Agenda September 21, 2004 Page 5 Consider adoption of an ordinance adopting the budget and first year of the Capital Improvement Plan of the City of Denton, Texas for the fiscal year beginning October 1, 2004, and ending September 30, 2005; and declaring an effective date. Consider adoption of an ordinance levying the ad valorem tax of the City of Denton, Texas, for the year 2004, on all taxable property within the corporate limits of the City on January 1, 2004, not exempt by law; providing revenues for payment of current municipal expenses, and for interest and sinking fund on outstanding City of Denton bonds; providing for limited exemptions of certain homesteads; providing for enforcement of collections; providing for a severability clause; and providing an effective date. Consider adoption of an ordinance of the City of DeNon, Texas, approving the 2004 Tax Rolls; and providing an effective date. 5. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consem Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consem Agenda (Agenda items A-U). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. if no items are pulled, Consem Agenda items A-U below will be approved with one motion, if items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of electric distribution conductors; providing for the expenditure of funds therefore; and providing an effective date (Bid 3202 - Annual Price Agreement for Electric Distribution Conductors awarded to Texas Electric Cooperative in the estimated amoum of $233,490). Consider adoption of an ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Arthur Surveying Co., inc. to provide professional surveying services in support of the City of Denton Engineering Department; authorizing the expenditure of funds therefore and providing an effective date (PSA 3219 - in an amoum not to exceed $150,000). Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the construction of a new Civic Center Marquee and Electronic Message Board; providing for the expenditure of funds therefore; and providing an effective date (Bid 3209 - Civic Cemer Marquee and Electronic Message Board Project awarded to Starlite Sign, LP in the amoum of $43,565). City of Demon City Council Agenda September 21, 2004 Page 6 Do Consider adoption of an ordinance accepting sealed proposals and awarding a comract for All Risk Commercial Property insurance Coverage including Catastrophic Vehicle and Boiler and Machinery for the City of Demon; providing for the expenditure of funds therefore and providing an effective date (RFSP 3207 - Commercial Property insurance; Catastrophic Vehicle; Boiler and Machinery awarded to McGriff, Seibels & Williams of Texas, inc. in the estimated amoum of $248,659). mo Consider adoption of an ordinance approving the expenditure of funds for the purchase of epoxy coatings available from only one source in accordance with the provision for State Law exempting such purchases from requirements of competitive bids; and providing an effective date (File 3213 - Purchase of Epoxy Coatings to Raven Lining Systems, Inc. in the estimated amount of $45,000). Fo Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of an 18-foot Windrow Composting Machine for the Beneficial Reuse Department; providing for the expenditure of funds therefore; and providing an effective date (Bid 3206 - 18-Foot Windrow Composting Machine awarded to McCourt and Sons Equipment, Inc. in the amount of $292,850 less $30,000 trade in of the existing unit, for a total award amoum of $262,850). Go Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of print materials for the Denton Public Library System; providing for the expenditure of funds therefore; and providing an effective date (Bid 3210 - Prim Materials awarded to Baker & Taylor, inc. in the estimated amoum of $300,000). Ho Consider approval of an exaction variance of Section 35.20.2 (L.3.a.) of the Code of Ordinance concerning improvements to a perimeter street. The parcel contains approximately 5.6 acres and is located on the proposed southwesterly comer of Centre Point Drive and inman Street. The property is currently designated as a Dowmown Commercial General (DC-G) zoning district, a hotel is proposed. The Planning and Zoning Commission recommends approval of the variance with a condition (7-0). (V04-0021) Consider adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton, Texas and JVC Real Estate LLC on approximately .4545 acre of land at the Denton Municipal Airport; and providing an effective date. (Lockheed) Jo Consider adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton, Texas and JVC Real Estate LLC on approximately 1.2396 acres of land at the Denton Municipal Airport; and providing an effective date. (Skylane) City of Demon City Council Agenda September 21, 2004 Page 7 Ko Consider adoption of an ordinance authorizing the City Manager to execute on behalf of the City of Demon Amendmem No. 1 to an airport project participation agreement with the Texas Department of Transportation dated January 8, 2002 relating to the construction of improvements at the Denton Municipal Airport; and declaring an effective date. (Terminal Tower Gram) Lo Consider adoption of an ordinance authorizing the City Manager, or his designee to execute an amendment of the Interlocal Agreement between the City of Denton dated effective August 1, 2004 between the City of Demon, the University of North Texas and McDonald Transit Associates, Inc. to provide for motor carrier passenger service for UNT Studems, Staff and Faculty and providing for an effective date. Mo Consider adoption of an ordinance of the City of Demon, Texas amending Chapter 21, Article I of the Code of Ordinances of the City of Demon by adding a section establishing hours for the use of the Day Labor Site and regulating certain activities on the Day Labor Site; providing a savings clause; providing a severability clause; providing a penalty not to exceed five hundred dollars; and declaring an effective date. No Consider adoption of an ordinance of the City of Demon authorizing an agreement between the City of Denton, Texas and the Denton Black Chamber of Commerce for arts and entertainment at the Blues Festival; providing for the expenditure of funds therefore; and providing for an effective date. Oo Consider adoption of an ordinance of the City of Demon authorizing an agreement between the City of Denton, Texas and the Historical Park Foundation of Denton County, Inc. for the restoration of the Quakertown house to an African American historical museum; providing for the expenditure of funds therefore; and providing for an effective date. Po Consider adoption of an ordinance of the City of Demon authorizing an agreement between the City of Denton, Texas and the Greater Denton Arts Council to assist in funding of the American Presidential Contenders Exhibition; providing for the expenditure of funds therefore; and providing for an effective date. Qo Consider approval of a resolution allowing Metzler's Food and Beverage to be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Event on October 9, 2004, upon certain conditions; authorizing the City Manager or his designee to execute an agreemem in conformity with this resolution; and providing for an effective date. Ro Consider adoption of an ordinance of the City of Denton naming the City Hall Fountain located in Civic Center Park; and declaring an effective date. So Consider adoption of an ordinance of the City of Demon naming the Skate Park located adjacent to the Water Works Park; and declaring an effective date. City of DeNon City Council Agenda September 21, 2004 Page 8 Consider adoption of an ordinance authorizing the City Manager to execute a personal services agreement with Barbara T. McCall Associates, Inc. to provide certain information and services with regard to legislation of interest to the city. Consider appoimmems to the following boards and commissions: 1. Animal Shelter Advisory Committee 6. PUBLIC HEARINGS Hold a public hearing and consider adoption of an ordinance amending Sub- Chapters 3 (Procedures), 13 (Site Design Standards), and 23 (Definitions) of the Developmem Code and amending the Application and Site Design Criteria Manuals associated with tree preservation. The Planning and Zoning Commission recommends approval (6-0). (SI03-0012, Tree Preservation Ordinance) Hold a public hearing and consider adoption of an ordinance rezoning approximately 4.7 acres from Neighborhood Residemial 2 (NR-2), Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial Mixed Use (NRMU) zoning districts to a Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning district with an overlay; approximately 23.8 acres from Neighborhood Residemial 3 (NR- 3) and Neighborhood Residemial Mixed Use (NRMU) zoning districts to a Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning district; and approximately 18.6 acres from Neighborhood Residemial 2 (NR-2) and Neighborhood Residemial 3 (NR-3) zoning districts to a Neighborhood Residemial 2 (NR-2) zoning district. The proposed 47.1-acre site is located on the south side of Interstate 35 East, approximately 1,000 feet south of Wind River Lane. The Planning and Zoning Commission recommends approval with the condition that the overlay permit only professional office uses (7-0). (Z04-0033, Unicorn Lake) Hold a public hearing and consider adoption of an ordinance rezoning approximately 3.6 acres from Dowmown Residemial 2 (DR-2) zoning district to Dowmown Commercial General (DC-G) zoning district. The property is located approximately 300 feet west of Bonnie Brae, on the south side of Oak Street. The Planning and Zoning Commission recommends approval (6-0). (Z04-0030, 2401 West Oak Street, Chris Fuller). Hold a public hearing and consider adoption of an ordinance graining approval of a license agreement for the subsurface use of a portion of the South Lakes Park approximately 4,300 feet for the purpose of a fiber optics communications cable in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for the issuance of license; and providing an effective date. 7. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider approval of a resolution of the City Council of the City of DeNon, Texas, stating commitment to the continuation of adequate funding for City of DeNon City Council Agenda September 21, 2004 Page 9 implememation and support of the City of Demon "Environmemal Protection Agency and Texas Commission on Environmemal Quality Approved Pretreatmem Program Pilot Project," as modified under Project XL; authorizing the execution by the City Manager of documems providing for modification of said project; and providing an effective date. Bo Consider approval of a resolution of the City Council of the City of DeNon, Texas authorizing the Mayor to sign and send a letter addressed to officials of the Texas Commission on Environmemal Quality requesting a public meeting on the application of Safety-Kleen Systems, Inc. for Permit Renewal and Amendment to Authorize Cominued Receiving, Storage and Processing of Industrial and Municipal Hazardous and Non-Hazardous Wastes (TCCEQ Permit No. 50163); and providing an effective date. Co Consider appoiming a voting delegate and an alternate voting delegate to the National League of Cities Annual Congress of Cities. Do Consider nominations/appoimmems to the City's Economic Development Partnership Board. mo Consider approval of a resolution of the City of DeNon, Texas, authorizing participation in and cooperation with a coalition of cities within CoServ Gas, Ltd's system including the authority to hire legal and consulting services and the authority to negotiate with the Company and to direct any necessary litigation; authorizing the hiring of Diversified Utility Consultants, Inc. to investigate and to respond to the filings of CoServ Gas Ltd.; authorizing intervention in any proceedings at the Railroad Commission; suspending the effective date of CoServ Gas's requested gas rate changes as set forth in their Statement of Intent filed with the City Secretary to permit the City time to study the request and establish reasonable rates; requiring the reimbursement of municipal rate case expenses; requiring notice of this Resolution to the Company; finding that the meeting complied with the Open Meetings Act; making other findings and provisions related to the subject; and declaring an effective date. Fo Consider adoption of an ordinance amending Ordinance No. 2004-182 and Section 2-29 of the City Code relating to Rules of Procedure for the City Council of the City of Denton, Texas; providing adjustments to the time limits for citizen reports and requiring groups of ten or more speakers to provide written designation to the City Secretary of their speaker representative; providing for the placement of citizen reports on the City Council agendas; and making such other changes as are set forth herein; providing a savings clause; providing a severability clause; and declaring an effective date. Go New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. City of Demon City Council Agenda September 21, 2004 Page 10 Ho Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Jo Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Demon, Texas, on the day of ,2004 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800- RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 Transportation Jon Fortune, Assistant City Manager SUBJECT: Receive a report, hold a discussion and give staff direction regarding regional transportation issues. BACKGROUND: Council Member Kamp serves as the City's representative to the Dallas Regional Mobility Coalition and Regional Transportation Council, and has requested an opportunity to brief the City Council on various regional transportation issues. Michael Morris, Director of Transportation with the North Central Texas Council of Government has been invited to attend the work session to participate in the discussion. In preparation for the work session, Council Member Kamp asked that I provide you with the attached information. The first item is a letter from the Dallas Regional Mobility Coalition regarding the Regional Transit Initiative. The Second item is a roster of members currently serving on the Regional Transportation Council. DALLAS REGIONAL MOBILITY COALITION ?522 ~mp~ll R~ Suite 113-205 Dallas, Texas 7524g 972/312-1644 972/312-1645 (FAX) ·mail ccug~nnail.mt Executive Committee Ron Harris, Co.hair Margaret Keliher, Co-Chair Sandy C, reyson, Vice-Chair Cn-ady Smithey, Secretary Rick Stopfer, Treasurer Chad Adams Gary Base Bruce Beaty Bill Blaydes Angie Chen Button Terri Dunn Pat Evans David Green John L. Heiman, Jr. Mary Horn Pete Kamp Gordon Mayer Mike Nowels Jayne Peters Bob Phelps Frank W. Robertson Mike Simpson Ga~ Slagel Mark Stokes Steve Ten'ell Paul N. Wageman Bill Whiffield Ex-Officio Members Charles Emery William Hale Jerry. Hiebert Michael Morris Executive Director James MeCartey David A. Griffin, Associate September 8, 2004 Mayor Euline Brock City Council City of Denton 215 E. McKinney Denton, TX 76201 Dear Mayor and City Council: The Dallas Regional Mobility Coalition (DRMC) Executive Committee, based on recommendations from the DRMC Legislative Committee, adopts a Legislative Program prior to each session of the Texas Legislature. One of the major items under consideration is the recent Regional Transit Initiative (RTI) Statement of Principles (copy attached). In reviewing the basic recommendation from the RTI group, several elements of the Principles will probably need additional clarification and/or definition prior to seeking support from area elected officials. While the RTl process cites the need to 'offer the region's citizens a seamless system of rail transit services,' the ongoing issue of funding and orgamzation remain a challenge. The DRMC Legislative Committee reviewed the Statement of Principles with the full DRMC Executive Committee at the September 3 meeting. Based on considerable discussion, the Legislative Committee was requested to solicit input from DRMC agencies on two areas identified as in need of clarification from the Statement of Principles. It is hoped discussion at the City Council and/or Commissioners Court level will provide a refinement of the recommendation from the RTI effort. The portion of the Statement of Principles Section 1, second sentence that states 'There is a strong preference for additional sales tax capacity allowing for a region-wide local option election that could provide such revenues,' needs clarification. Much of the discussion at DRMC addressed the details of the 'region-wide local option election' phrase. The DRMC Legislative Committee put forth one possibility that there would be two separate elections under this provision: a) One election on a separate date for those cities not now participating in a transit system to allow local jurisdictions to have a citizen vote on adding (above the current 8 'A cent sales tax 'cap') ½ cent sales tax for transit. All cities within the 'region' (a six to nine county area or possibly county by county) would be bound by the total vote of the region. Denton County is excluded from this vote due to the Denton County Transportation Authority (DCTA) already including all of Denton County. b) Another election on a separate date for cities currently in a transit system (The T, DART, Denton County) and at the 8 IA cent sales tax cap to have a citizen vote on adding (above the cap) ~A cent sales tax for other purposes (4A, 4B, crime control district, etc.). Each jurisdiction could opt for or again~ the additional ½ cent. There may be other items in the RTI Statement of Principles that your group of elected officials chooses to address. Although DRMC represents only twenty-seven cities and five counties in the North Texas area, one of the main elements from the DRMC Mission Statement is striving Mayor/City Council September 8, 2004 Page 2 for enhanced mobility throughout the Region with transit facilities being a key component of such mobility. During the 78t~ Texas Legislative Session, a key item of the DRMC Legislative Package was Senate Bill 972 passed by Senator Florence Shapiro and Representative Brian McCall allowing a more efficient process for cities that may wish to convert from a 4A/4B typ~ tax to participation in DART. This legislation is one element addressing Section 3 of the RTI Statement of Principles. Discussion and review of the RTI Statement of Principles in general is solicited. Opinions and thoughts on the specific items identified above are earnestly requested by September 27, which is prior to the next DRMC Executive Committee meeting scheduled for October 1. Please give me a call (214-576-9851) or mail/email (cct~.} ti '~i~rm~li t~c_!) any feedback to thc DRMC offices. DRMC will conduct additional discussion on this item and other Legislative Issues within the next few months. Thanks for your consideration and interest! Sincerely, Mayor - City of Richardson Chairman, DRMC Legislative Corem Attachment -RTI Statement of Principles xc: Pete Kamp, Councilmember-City of Denton Mike Conduff, City Manager-City of Denton STATEMENT OF PRINCIPLES FOR THE IMPLEMENTATION OF A REGIONAL RAIL SYSTEM IN NORTH CENTRAL TEXAS WHEREAS, area leaders serving on committees of the North Central Texas Regional Transit Initiative have met over the past year to address the region's rail transit needs, rail funding requirements, and institutional arrangements to meet the region's rail transit needs as defined in Mobility 2025 - 2004 Update, the metropolitan transportation plan for the Dallas/Fort Worth Metropolitan Area; and WHEREAS, there is an agreement on a demonstrated need for the provision of regional rail services in Collin, Dallas, Denton, Ellis, Johnson, and Tarrant Counties to address the projected increase in population, employment, and congestion; and WHEREAS, funding for regional rail services should be shared by all residents of the counties receiving regional rail services; and WHEREAS, regional rail services should offer the region's citizens a seamless system of rail transit services. NOW, THEREFORE, BE IT RESOLVED: Section 1. A new revenue stream is required that would be dedicated to the development and ongoing operation for regional rail service. There is a strong preference for additional sales tax capacity allowing for a region-wide local option election that could provide such revenues. Section 2. Local governments, transit entities, and the State should have a common base for taxable goods and services, including any goods and services newly taxed by the Legislature. Section 3. The continued growth of the exisling transportation authorities, through the addition of new cities, iS encouraged. Section 4. A new Regional Rail Authority (RRA) should be created to provide funding and represent the area as shown on Exhibit 1. Section 5. The new RRA would work cooperatively with the existing transportation authorities to provide the public with regional rail services throughout the region. Section 6. A seamless system of rail transit services should be offered throughout the region. Section 7. The three existing lransportation authorities will maintain their respective funding, responsibilities, and commitments (Dallas Area Rapid Transit, Denton County Transportation Authority, and the Fort Worth Transportation Authority). Section 8. There should be a provision for representation for the three existing transportation authorities in the governance of the new RRA to encourage continued cooperation and coordination. Section 9. There should be a mechanism (in the permissive legislation) for additional geographic areas (counties) to join the new RRA. Section 10. There should be cooperation throughout the region to maximize the amount of federal funding for regional rail. Wendy Davis Chairperson, Financial Committee North Centra~ Texas Regional Transit Initiative Lee Jackson Chairperson, Institutional Committee Nodh Central Texas Regionai Transit Initiative David Cain Chairperson, Legislative Committee North Central Texas R~ional Transit initiative BHIBIT 1 Perker REGIONAL SYSTEM Keep Existing Authorities, Denton 1, DCTA Service Area 2. FW~A SaUce Ama 3, DARTS~ Area 4, Polentia~ New Re~o~ R~i! Autf~rity ' Flexibility including but not limiteG I~e the · Crea~i~ al' Regioaa~ Rail Authority Service Are~ * Minimal "Feeder' 8a~ Service * Addi~i,one~ Fandir~g Inc~des: Air Qaa!i~y Projects, 8ott~eaeck Improvements, NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS Regional Transportation Council Last Updated: August 2004 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 21, 2004 Utilities Administration Howard Martin, 349-8232 ~ SUBJECT See Consent Agenda Items Number 4A, 4B, 4C, 4D and 4E. BACKGROUND The proposed rate ordinances included in this agenda are designed to recover the cost of service for each utility and provide a positive or breakeven net income. During the Wastewater budget presentation, the Council reviewed several proposed rate options that could be implemented to support the proposed FY 2004-05 budget and FY 2004-08 CIP. The Public Utilities Board directed staff to include the 9 and 6 percent rate increase option. Staff has included in the Wastewater rate ordinance for the FY 2005 a 9% retail rate increase as recommended by the Board. Solid Waste proposed various rate changes during their budget discussions to residential and recycling customers. These changes have also been included in the rate ordinance as a decrease of $.45 for residential bagged service and a $.90 increase to residential recycling. SUMMARY No base rate increases are proposed for Water retail customers. The various Wastewater and Solid Waste rate changes discussed during the budget review are outlined in greater detail below. ELECTRIC RATE RECOMMENDATIONS · Add a residential renewable energy rate for those customer choosing to support generators of cleaner energy that provide electricity to the ERCOT power grid. The rate will initially be offered to single phase residential customers only, with expansion to the three phase residential and small commercial sectors in early 2005. WATER RATE RECOMMENDATIONS · Revise the Metered Water From Fire Hydrant rate per the Black & Veatch Cost of Service and Rate Design Study recommendation from $2.87 to $3.33 per 1,000 gallons and the facility charge from $32.50 to $66.25 per 30 days. Revise the Wholesale Treated Water Service to Upper Trinity Regional Water District per the cost of service and rate design study prepared by Black & Veatch. Per the cost of service and rate design study the wholesale treated water volume rate should increase from $0.25/1,000 gallons to $0.34/1,000 gallons and the demand rate is recommended to increase from $348,000 per subscribed annual MGD to $406,107. Revise the Wholesale Raw Water Rate (WRW) applicable to Upper Trinity Regional Water District (UTRWD). The FY 2004 City of Dallas raw water wholesale rate is projected to be $0.3987/1,000 gallons, an increase of 3.08% from the existing rate of $0.3868/1,000 gallons. Denton's raw water wholesale rate to UTRWD, which is set at 85% of Dallas' raw water wholesale rate, will correspondingly increase from the existing price of $0.3288/1,000 gallons to $0.3389/1,000 gallons. This rate is determined by the terms of the raw water contract between Denton and UTRWD. Increase the rate for the pass-through raw water sent from Lake Chapman into Lake Lewisville by the UTRWD per the Cooper Reservoir Project Contract and all "Chapman" water reclaimed for reuse if discharged imo and subsequemly withdrawn from Lewisville Lake by UTRWD or Lewisville. The rate will increase from $0.02/1,000 gallons to $.0207/1,000 gallons. The rate adjustmem is determined by the consumer price index, which as of June 30, 2004 is 3.3% over the same period last year. Increase laboratory testing fees for charges to outside entities. Laboratory testing fees were last increased in February 1996, but not included as part of the rate ordinance at that time. In preparing the ordinance, staff is recommending these fees be increased and included with the current rate ordinance. Attached, as Exhibit 5 is a comparison of existing fees vs. proposed fees and a comparison of other area laboratories to the proposed fee structure. WASTEWATER RATE RECOMMENDATIONS · Increase all retail facility, volume, and surcharges by 9% per the Board's recommendations. · Increase all analysis charges from $15.00 to $20.00. · Decrease the yards required to receive a 50% discount on Dyno Dirt Products from 2,000 to 500. · Amend the Grass/Brush/Leaves contaminated rate to mirror solid waste landfill rates. SOLID WASTE RATE RECOMMENDATIONS · Decrease the rate for Residemial Manual twice per week bagged pickup service from $18.20 to $17.75. · Establish excess volume limits for twice per week bagged service. · Increase the residemial recycling rate from $2.07 to $2.99 per 30 days. Establish rates for a Solid Waste Collection and Transportation Services Permit (SWP) for those entities engaged in the collection and transport of waste or recyclables in the city limits of DeNon. MISCELLANEOUS RATE RECOMMENDATIONS · There are no recommended changes to the miscellaneous service fees rates. OPTIONS 1. Approve the rates as recommended by the Public Utilities Board. 2. Recommend differem rates than recommended by the Public Utilities Board. RECOMMENDATION Staff recommends approving the rates as recommended by the Public Utilities Board. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Public Utilities Board approved the proposed rate ordinances on August 23, 2004. FISCAL INFORMATION The proposed rate ordinances included in this agenda are designed to recover the cost of service for each utility and provide a positive or breakeven net income. Respectfully submitted: Howard Martin ACM Utilities ORDINANCE NO. 2004- AN ORDINANCE AMENDING THE SCHEDULE OF WATER RATES CONTAINED iN ORDINANCE NO. 2003-263 FOR WATER SERVICE AND WATER RATES; AMENDING THE METERED WATER FROM FIRE HYDRANT RATE (SCHEDULE WFH); AMENDING THE WHOLESALE TREATED WATER SERVICE RATE TO UPPER TRINITY REGIONAL WATER DiSTRiCT (SCHEDULE WW2); AMENDING THE WHOLESALE RAW WATER SERVICE RATE TO UPPER TRINITY REGIONAL WATER DiSTRiCT (SCHEDULE WRW); AMENDING THE WHOLESALE RAW WATER PASS-THROUGH RATE FOR UPPER TRINITY REGIONAL WATER DISTRICT FROM LAKE CHAPMAN INTO LAKE LEWiSViLLE (SCHEDULE WCL); ADDING A FEE SCHEDULE FOR WATER LABORATORY TESTING FEES; PROViDiNG FOR A REPEALER; PROVIDING FOR A SEVERABiLiTY CLAUSE; AND PROViDiNG FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Rate Schedules for water service as provided for in Chapter 26 of the Code of Ordinances, are amended to read as follows: WATER RATE SCHEDULES WR WC WFH WW2 Residential Water Service Commercial/Industrial Water Service Rate Metered Water From Fire Hydrant Wholesale Treated Water Service to Upper Trinity Regional Water District WRW Wholesale Raw Water Service to Upper Trinity Regional Water District WCL Wholesale Raw Water Pass-Through to Upper Trinity Regional Water District from Lake Chapman into Lake Lewisville Water Tap and Meter Fees Fire Hydrant Installation Water Laboratory Testing Fees Special Facilities Rider PACE 2 6 10 11 13 14 15 17 18 19 SCHEDULE WR RESIDENTIAl, WATER SERVICE (Effective 10/01/04) Applicable for single family residential service, and individually metered apartments, mobile homes, or multi-family facilities with less than four units, with or without wastewater service. (WR) Applicable for single family residential service, and individually metered apartments, mobile homes, or multi-family facilities with less than four units outside the corporate limits of the City of Denton, with or without wastewater service. (WRO) The rate is also applicable where the metered water is not returned to the wastewater system for collection and treatment, i.e. lawn sprinkler or septic system. (WRN) Not applicable to resale, temporary, standby, or supplementary service except in conjunction with applicable rider. MONTHLY RATE (WR) - RESIDENTIAL WATER SERVICE; AND MONTHI,Y RATE (WRN~ -METERED WATER NOT RETIJRNED TO WASTEWATER SYSTEM FOR COLLECTION AND TREATMENT (1) Facility Charge Billing Per 30 Days 3/4" Meter $ 9.55 1" Meter $11.40 1-1/2" Meter $16.25 2" Meter $18.10 (2) Volume Charge Rate Per 1 ;000 Gallons RATE BIDCK PER 30 DAYS WINTER SI JMMER Billing months of NOV. through APRII, Billing months of MAY through OCT. 0-15,000 gals $2.60 15,001-30,000 gals $2.60 Over 30,000 gals $2.60 $2.60 $3.50 $4.35 MONTHI,Y RATES ('WRO) - WATER SERVICE Ol JTSIDE CORPOR ATE IJMITS MONTHI ~Y R ATE (1) Facility Charge Billing Per 30 Days 3/4" Meter 1" Meter 1-1/2" Meter 2" Meter $11.00 $13.10 $18.65 $20.80 (2) Volume Charge Rate Per 1,000 Gallons RATE BIDCK PER 30 DAYS WINTER SI JMMER Billing months NOV through APRII~ Billing months MAY through OCT 0-15,000 gals $3.00 $3.00 15,001-30,000 gals $3.00 $4.05 Over30,000 gals $3.00 $5.00 M1NIM[JM BILLING Facility Charge. Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAI~ FACIIJTIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACIIJTY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and prorated for longer or shorter billing periods using the following formula: Formula: Aclnlal days in billin~ neriod ~ ~ x customer charge 30 days VOLUME CHARGE Billing for the water consumption shall be based on the gallon consumption during the billing period. Formula: Gallons in rate block × rate per 1,000 gal. in rate block 1000 gallons PRORATION OF VOLUME BLOCKS Billing for the summer period volume charges shall be based on water consumption in each rate block and prorated using the following formula. Formula: Actnal days in billin2 nefiod - ~ * x Volume in the rate block 30 days RETAIl, WATER RATES IJNDER DROIJGHT CONTINGENCY PI,AN CONDITIONS - ORDINANCE NO. 2000-006. Under Stage 3 drought conditions, the following residential water rates shall apply for retail customers. Residential customers shall be charged a 20% surcharge penalty for water usage greater than 30,000 gallons per account per thirty (30) days. STAGE 3 WR RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN Billing months of NOV. throu2h APRII, Billing months of MAY throu2h OCT. 0-15,000 gals $2.60 15,001-30,000 gals $2.60 Over 30,000 gals $2.60 $2.60 $3.50 $5.22 STAGE 3 WRO RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN Billing months of NOV. throu2h APRII, Billing months of MAY throu2h OCT. 0-15,000 gals $3.00 $3.00 15,001-30,000 gals $3.00 $4.05 Over 30,000 gals $3.00 $6.00 Under Stage 4 drought conditions, the following residential water rates shall apply for retail customers. Residential customers shall be charged a 20% surcharge penalty for water usage greater than 15,000 gallons per account per thirty (30) days. STAGE 4 WR RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN WINTER Billing months of NOV. throueh APRIl, 0-15,000 gals $2.60 15,001-30,000 gals $2.60 Over 30,000 gals $2.60 SI JMMER Billing months of MAY throueh OCT. $2.60 $4.2O $5.22 STAGE 4 WRO RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN Billing months of NOV. through APRlI, 0-15,000 gals 15,001-30,000 gals Over 30,000 gals $3.00 $3.00 $3.00 Billing months of MAY through OCT. $3.00 $4.86 $6.00 SCHEDULE WC COMMERCIAl,fiND[ JSTRIAI, WATER SERVICE R ATE (Effective 10/01/04) APPIJCATION Applicable to all commercial and industrial users, or other water users not otherwise classified under this ordinance, for all water provided at one point of delivery and measured through one meter. (WC) Applicable for all commercial and industrial users or other users not otherwise classified under this ordinance outside of the corporate limits of the City of Denton for all water service provided at one point of delivery and measured through one meter, with or without wastewater service. (WCO) Also applicable where the metered water is not returned to the wastewater system for collection and treatment, i.e. water used in production or irrigation or where the wastewater flow is measured separately. (WCN) Not applicable to resale service in any event, nor to temporary, standby, or supplementary service except in conjunction with applicable rider. MONTHI~Y RATE (WC) and (WCN) (1) Facility Charge Billing Per 30 Days 3/4" Meter $20.20 1" Meter $22.20 1-1/2" Meter $25.75 2" Meter $31.65 3" Meter $66.25 4" Meter $122.50 6" Meter $153.00 8" Meter $178.00 10" Meter $214.00 (2) Volume Charge $2.87 per 1,000 gallons MONTHLY RATE .CWCO) - OUTSIDE CORPORATE LIMITS (1) Facility Charge Billing Per 30 Days 3/4" Meter $21.50 1" Meter $23.50 1-1/2" Meter $29.60 2" Meter $34.50 3" Meter $75.00 6 4" Meter $141.00 6" Meter $176.00 8" Meter $205.00 10" Meter $247.00 (2) Volume Charge $3.25 per 1,000 gallons M1NIMI JM BII,I lNG Facility Charge. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACII]TY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and prorated for longer or shorter billing periods using the following formula: Formula: Actual days in reading period x Customer Charge 30 days VOI I JME CHARGE Billing for the water consumption shall be based on the consumption during the billing period. Formula: Gallons consumption × Rate per 1,000 gallons 1,000 COMMERCIAI,/INDI JSTRIAI, WATER RATES (WC/WCN) l JNDER CONTINGENCY PLAN CONDITIONS - ORDINANCE NO. 2000-006. DROI JGHT Under Stage 3 drought conditions, the following commercial/industrial water rates shall apply for retail customers. Commercial/Industrial customers shall be charged a 20% surcharge penalty for water usage above 80% of prior billing volumes per account per thirty (30) days. STAGE 3 WC/WCN RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN Volume Rate for under 80% volumes $2.87/1,000 Gallons Volume Rate for volume over 80% of Prior Billing Volumes $3.44/1,000 Gallons Under Stage 4 drought conditions, the following commercial/industrial water rates shall apply for retail customers. Commercial/Industrial customers shall be charged a 20% surcharge penalty for water usage above 70% of prior billing volumes per account per thirty (30) days. STAGE 4 WC/WCN RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN Volume Rate for under 70% volumes $2.87/1,000 Gallons Volume Rate for volume over 70% of Prior Billing Volumes $3.44/1,000 Gallons COMMERCIAI,/1NDI JSTRIAI, WATER RATES (WCO) IJNDER DROI JGHT CONTINGENCY PI,AN CONDITIONS - ORDINANCE NO. 2000-006. Under Stage 3 drought conditions, the following commercial/industrial water rates shall apply for retail customers. Commercial/Industrial customers shall be charged a 20% surcharge penalty for water usage above 80% of prior billing volumes per account per thirty (30) days. STAGE 3 WCO RATE BLOCKS PER THIRTY (30) DAYS l JNDER DROI JGHT CONTINGENCY PI,AN Volume Rate for under 80% volumes $3.25/1,000 Gallons Volume Rate for volume over 80% of Prior Billing Volumes $3.90/1,000 Gallons Under Stage 4 drought conditions, the following commercial/industrial water rates shall apply for retail customers. Commercial/Industrial customers shall be charged a 20% surcharge penalty for water usage above 70% of prior billing volumes per account per thirty (30) days. STAGE 4 WCO RATE BLOCKS PER THIRTY (30) DAYS UNDER DROUGHT CONTINGENCY PLAN Volume Rate for under 70% volumes $3.25/1,000 Gallons Volume Rate for volume over 70% of Prior Billing Volumes $3.90/1,000 Gallons SCHEDULE WFH METERED WATER FROM FIRE HYDRANT (Effective 10/01/04) APPIJCATION Applicable for all water taken through a fire hydrant or other direct distribution line source at one location for private or commercial use not associated with fire fighting. Customers must complete, sign, and agree to all terms and conditions stated in the "Fire Hydrant Meter Use Agreement." DEPOSIT $800.00 per meter User shall place a deposit each time a City's hydrant meter(s) is requested. Deposit will be returned when meter is returned and final bill is paid. NET RATE Volume Charge $3.33 per 1,000 gallons Monthly volume shall be computed by subtracting the beginning meter reading from the ending meter reading divided by 1,000, and multiplied times the volume charge, upon the monthly return of the meter to the Water Department for reading. Per the "Fire Hydrant Meter Use Agreement", failure by the customer to return the meter to water utilities by the 3rd day of each month for reading, results in acceptance by the customer to pay a monthly billing equal to 100,000 gallons of water usage for the month. Facility Charge $66.25 per 30 days PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. Z0 SCHEDULE WW2 WHOLESALE TREATED WATER SERVICE TO l JPPER TRINITY REGIONAI, WATER DISTRICT (Effective 11/01/04) APPIJCATION Applicable to all wholesale treated water sales to the Upper Trinity Regional Water District (UTRWD). Not applicable for temporary, standby, or supplementary service. MONTHI~Y CHARGES The monthly charge for service shall be expressed as a facility charge, a volume price per 1,000 gallons and a demand price per million gallons per day (MGD) of demand. (WW2) (1) Facility Charge $176.00 per month (2) Water Volume Rate $0.34 per 1,000 gallons (WD2) (3) Subscribed Demand Rate $406.107.00 her MGD (Annual) 12 (Paid Monthly) *Full Payment of Annual Water Demand Adjustments: As determined in the last month of each fiscal year (September), if any outstanding or unpaid annual water demand adjustment charges exist, they shall be included in their entirety on the monthly billing for the following month of October. Water demand adjustment charges shall be billed and payable in full, in accordance with the bill payment delinquency provisions provided for below. MINIMI JM BII J ~ING The minimum monthly billing shall be the sum of the monthly facility charge plus the monthly subscribed demand rate charge. WATER DEMAND The demand will be billed on a monthly basis at the Water Demand Rate for the subscribed MGD water demand level. Annual water demand charges will be retroactively adjusted up beginning in June for each water year, if anytime during the fiscal year the actual peak demand required, as established by the highest rate of flow controller setting for any one day during the fiscal year, is greater than the peak demand subscribed during the fiscal year. If the actual peak demand has an increased daily volume between .05 and .10 MGD from the subscribed demand (50,000 - 100,000 gallons per day), the annual water demand charge will be adjusted up and billed at the actual peak demand level. BII,I, PAYMENT DEI]NQI JF, NCY Bills shall be due and payable when rendered. Bills are considered delinquent if not paid within twenty (20) calendar days of the date a bill for service is rendered. There shall be a ten (10%) percent per annum interest charge on the amount due, from the date when due until paid, if not paid within twenty (20) calendar days of the date a bill for service is rendered. 12 SCHEDULE WRW WHOLESALE RAW WATER SERVICE TO 1JPPER TRINITY REGIONAl, WATER DISTRICT (Effective 10/01/04) APPIJCATION Applicable to all raw water sales to the Upper Trinity Regional Water District (UTRWD) per the Interim Sale of Wholesale Raw Water Contract. MONTHLY CHARGES The monthly charge for service shall be expressed as a volume price per 1,000 gallons. Volume Charge: $0.3389 per 1,000 gallons PAYMENT Denton shall render bills by the tenth (10th) day of each month. Bills shall be due and payable within twenty (20) calendar days of the date a bill is rendered. PAYMENT DEl JNQI JENCY Bills shall be due and payable when rendered. Bills are considered delinquent if not paid within 20 calendar days of the date a bill for service is rendered. There shall be a ten (10%) percent per annum interest charge on the amount due, from the date when due until paid, if not paid within twenty (20) calendar days of the date a bill for service is rendered. SCHEDULE WCL WHOLESALE RAW WATER PASS-THROUGH TO UPPER TRINITY REGIONAL WATER DISTRICT FROM I,AKE CHAPMAN INTO I,AKE I~EWlSVlIJ~E (Effective 10/01/04) APPIJCATION Applicable to all pass-through raw water sent from Lake Chapman into Lake Lewisville by the Upper Trinity Regional Water District (UTRWD) per the Cooper Reservoir Project Contract, as well as, all Lake Chapman water reclaimed for reuse if discharged into and subsequently withdrawn from Lewisville Lake by UTRWD or Lewisville pursuant to a reuse permit or other appropriate regulatory authorization. MONTHI,Y CHARGES The monthly charge for service shall be expressed as a volume price per 1,000 gallons. Volume Charge: $0.0207 per 1,000 gallons PAYMENT Denton shall render bills monthly. Bills shall be due and payable within twenty (20) calendar days of the date a bill for service is rendered. BIIJ~ PAYMENT DEI~INQI JENCY Bills shall be due and payable when rendered. Bills are considered delinquent if not paid within twenty (20) calendar days of the date a bill for service is rendered. There shall be a ten (10%) percent per annum interest charge on the amount due, from the date when due until paid, if not paid within twenty (20) calendar days of the date a bill for service is rendered. 14 WATER TAP AND METER FEES (Effective 10/01/04) This schedule applies to the installation, removal, or relocation of water taps and meters by the City of Denton Utility Department at the request of a person, firm, association or corporation. TAP AND METER FEES Any person, association of persons, or corporation that requests that a water main tap, water meter or water meter loop, be removed, installed, or relocated by the Utility Department shall pay in advance to the Utility Department the following applicable fees: WATER TAPS WITH METER Size of Tap and Meter Paved Street 1 Jnpaved Street 3/4 inch $1,410.00 $595.00 1 inch $1,625.00 $730.00 1 1/2 inch $2,055.00 $1,085.00 2 inch $2,275.00 $1,410.00 WATER METER FEES Size of Meter 3/4 inch $305.00 1 inch$375.00 1 ½ inch$490.00 2 inch$630.00 WATER METER REI,OCATIONS Size of Meter Relocation of 10 Feet or l,ess 3/4 inch $285.00 1 inch$285.00 1 ½ inch $340.00 2 inch$390.00 Z5 WATER LINE TAPS Size of Tan Paved Street I lnnaved Street 4 inch $2,705.00 $1,625.00 6 inch $2,920.00 $1,895.00 8 inch $3,895.00 $2,815.00 12 inch $4,865.00 $3,730.00 FEES FOR 1NSTAIJ,ATIONS NOT IJSTED For the installation of a tap, loop or meter for which a fee is not specified, the requestor shall pay in advance a 50% deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20%. Upon completion of the installation, the applicant shall be billed at actual cost, as determined by the Utility Department, plus a 20% administrative charge. The installation charges may be waived by the Utility Department for a request to install taps exclusively dedicated to fire sprinkler systems. FIRE HYDRANT INSTAI,I,ATION (Effective 10/01/04) This schedule applies to the installation, removal, or relocation of fire hydrants by the City of Denton Utility Department at the request of a person, firm, association or corporation. FIRE HYDRANT INSTAIJ,ATION FEES Any person, association of persons, or corporation that requests that a fire hydrant be removed, installed, or relocated by the Utility Department shall pay in advance to the Utility Department the following applicable fees: Fire Hydrant Installation Paved Street I lnnaved Street Installation Fee $5,030.00 $3,085.00 FEES FOR INSTALLATIONS NOT LISTED For the installation of a fire hydrant for which a fee is not specified, the requestor shall pay in advance a 50% deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20%. Upon completion of the installation, the applicant shall be billed at actual cost, as determined by the Utility Department, plus a 20% administrative fee. WATER LABORATORY TESTING FEES (Effective 10/01/04) APPLICATION Applicable to all customers and entities requesting testing and analysis services from the City of Denton Water/Wastewater Laboratory. RATE Fee Description Fee Per Test Colilert (P/A) Colilert (P/A) Quantitray Total Coliform Analysis (MPN) Heterotrophic Plate Counts (HPC) Fecal Coliform (MF) $20.00 $20.00 $45.00 $25.00 $30.00 Records Search $25.00/hour The testing and analysis fees are established to recover the cost of testing water and wastewater samples. MINIMI JM BII,I,ING $20.00 - Testing $25.00 - Records Search Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. Z8 SPECIAL FACILITIES RIDER (Effective 10/01/04) All service shall be offered from available facilities. If a customer service request for a special or unusual service not otherwise provided for by the water rate ordinance, and/or requires facilities or devices which are not normally and readily available at the location at which the customer requests the service, then the City shall provide the service subject to the requirements of paragraph 2 of this Rider. The total cost of all facilities required to meet the customer's special requirements, which are incurred by the City in connection with rendering the service shall be subject to a special contract entered into between the Water Utility Department and the customer. This contract shall be signed by both parties prior to the City providing the requested service to the customer. 19 ~ That all ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistem or in conflict with the terms of provisions comained in the amended schedule of rates hereby enacted by this ordinance, are hereby repealed to the extent of any such conflict. ~ECfflO2~?a 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 competem jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Demon, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. That this ordinance shall become effective, charged, and applied to all water services rendered on and after October 1, 2004; provided however, this ordinance shall be charged and applied to those water services described in Schedule WW2 (Wholesale Treated Water Service to Upper Trinity Regional Water District) rendered on and after November 1, 2004; and a copy of said rates, fees, and charges shall be maimained on file in the Office of the City Secretary. PASSED AND APPROVED this the day of 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents\Ordinances\04\2004-2005 Water Rate Ordinance-A.doc 2O ORDINANCE NO. 2004- AN ORDINANCE AMENDING THE SCHEDULE OF WASTEWATER RATES CONTAINED IN ORDINANCE NO. 2003-264 FOR WASTEWATER SERVICE; AMENDING THE RESIDENTIAL WASTEWATER SERVICE - FACILITY CHARGE AND VOLUME CHARGE (SCHEDULE SR); AMENDING THE MOBILE HOME PARK - FACILITY CHARGE AND VOLUME CHARGE (SCHEDULE SMH); AMENDING THE COMMERCIAL/INDUSTRIAL WASTEWATER SERVICE - FACILITY CHARGE, VOLUME CHARGE, SAMPLING AND ANALYSIS CHARGE, AND SURCHARGE; (SCHEDULE SC); AMENDING THE COMMERCIAL/INDUSTRIAL WASTEWATER SERVICE RATE WHICH MEASURES WITH DEDICATED METERS (SUB-METERS) WATER FOR WASTEWATER BILLING - FACILITY CHARGE, VOLUME CHARGE AND SURCHARGE (SCHEDULE SCD); AMENDING THE COMMERCIAL/INDUSTRIAL WASTEWATER SERVICE RATE WHICH MEASURES WITH DEDICATED METERS (SUB-METERS) WATER EXCLUDED FROM WASTEWATER BILLING FACILITY CHARGE AND SURCHARGE (SCHEDULE SCS); AMENDING THE EQUIPMENT SERVICES FACILITIES AND RESTAURANTS AND FOOD SERVICE ESTABLISHMENT - FACILITY CHARGE, VOLUME CHARGE, SAMPLING AND ANALYSIS CHARGE, AND SURCHARGE (SCHEDULE SEE); AMENDING THE METERED WASTEWATER INSIDE AND OUTSIDE CORPORATE LIMITS FACILITY CHARGE, VOLUME CHARGE, SAMPLING AND ANALYSIS CHARGE, AND SURCHARGE (SCHEDULE SM); AMENDING THE SALE OF TREATED WASTEWATER EFFLUENT - FACILITY CHARGE (SCHEDULE SGE); AMENDING THE WHOLESALE WASTEWATER TREATMENT SERVICE FOR A GOVERNMENTAL AGENCY, DIVISION, OR SUBDIVISION; SAMPLING AND ANALYSIS CHARGE, AND SURCHARGE (SCHEDULE SSC); AMENDING THE DYNO DIRT PRODUCTS 50% DISCOUNT FOR PURCHASES (SCHEDULE CWM); AMENDING THE GRASS/BRUSH/LEAVES CHARGE FOR CONTAMINATED GRASS, BRUSH, OR LEAVES (SCHEDULE GBL); ADDING A FEE FOR TREATED EFFLUENT WASTEWATER TAP FEES (SCHEDULE STE); PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Rate Schedules for wastewater service as provided for in Chapter 26 of the Code of Ordinances, are amended to read as follows: Page 1 WASTEWATER RATE SCHEDULES SR SMH SC SCD SCS SEE SM SGE SSC Residential Wastewater Service 3 Mobile Home Park Wastewater Service 6 Commercial and Industrial Wastewater Service 9 Commercial/Industrial Wastewater Service Which Measures With 13 Dedicated Water Meters (Sub-meters); Water For Wastewater Billing Commercial/Industrial Wastewater Service Which Measures With 15 Dedicated Water Meters (Sub-meters); Water Excluded From Wastewater Billing Equipment Services Facilities and Restaurants & Food 17 Service Establishments Wastewater Service Metered Wastewater Inside and Outside Corporate Limits Sale of Treated Wastewater Effluent Wholesale Wastewater Treatment Service for a Governmental Agency, Division or Subdivision CWM DYNO Dirt Products GLB Grass, Brush, and Leaves ST Wastewater Tap Fees STE Treated Effluent Wastewater Tap Fees OSSF On-Site Sewage Facility Fees SD Storm Drainage Fees Special Facilities Rider 20 22 24 26 28 29 30 31 32 34 Page 2 SCHEDULE SR RESIDENTIAI~ WASTEWATER SERVICE (Effective 10/1/04) AEELZCAIZQ~ Applicable for single-family residential service, and individually metered apartments or mobile homes or multi-family facilities with less than four (4) units. Also applicable for wastewater service without City of Denton water service. Not applicable for sub-billing or other utility billing by service user in any event. MONTHI,Y RATES (SR) - WITH CITY OF DENTON WATER SERVICE (1) Facility Charge $7.03/30 days (2) Volume Charge $2.69/1,000 gallons effluent MONTHI,Y RATES (SRO) - OIJTSIDE CORPORATE lIMITS WITH CITY OF DENTON WATER SERVICE (1) Facility Charge $8.11/30 days (2) Volume Charge $3.10/1,000 gallons effluent Except as otherwise stated in this schedule, wastewater volume is calculated based upon a current winter Average Daily Usage, established annually during the previous billing months of December through February, and based upon 98% of actual water consumption during those months. The average daily usage may be calculated using as few as two months. The Average Daily Usage thus calculated establishes the wastewater volume charge for each subsequent month, through the following February. For customers without an established winter Average Daily Usage water consumption billing history derived from the preceding billing months of December through February, wastewater volume for each billing month through the following February shall be calculated at 98% of 6,500 gallons. MINIMI JM BIIJ]NG - WITH CITY OF DENTON WATER SERVICE Facility Charge. VOII JME CHARGE - WITH CITY OF DENTON WATER SERVICE With a current Average Daily Usage, billings through the following February shall be based on the average daily usage calculated using the following formula. Page 3 Current Average Daily l Jsage x 98% × Rate per 1,000 gallons 1,000 For customers without an established current Average Daily Usage, billings shall be based on 98% of 6,500 gallons. 6,500 Gallons x 98% × Rate per 1,000 gallons 1,000 Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACIIJTY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period × Customer Charge 30 days MONTHI,Y RATES (~qRNI/~qRNO) - WITHOI JT CITY OF DENTON WATER SERVICE SRNI SRNO Inside Corporate Outside Corporate I ,imits I ,imits (1) Facility Charge $7.03/30 days $8.11/30 days (2) Volume Charge $2.69/1,000 gals $3.10/1,000 gals The customer shall pay a minimum Volume Charge on the established billable volume of five thousand (5,000) gallons per month. MINIMI JM BIIJJNG - WITHOI JT CITY OF DENTON WATER SERVICE The Facility Charge plus five thousand (5,000) gallons ofwastewater. Page 4 VOLUME CHARGE - WITHOUT CITY OF DENTON WATER SERVICE The billing for the wastewater volume shall be based on the minimum wastewater volume (5,000 gallons) during the billing period. Minimum Wastewater Volume × Rate per 1,000 gallons 1,000 PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACIIJTY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period x Customer Charge 30 days SCHEDULE SMH MOBILE HOME PARK WASTEWATER SERVICE (Effective 10/01/04) Page 5 APPIJCATION Applicable for mobile home parks which are master water metered to provide residential wastewater service. Wastewater service is billed based on the customer's winter average water usage. Also applicable for wastewater service without City of Denton water service, in the event the mobile home park does not have a master meter for wastewater. Wastewater service is billed on the average residential wastewater volume per customer. Not applicable for sub-billing or other utility billing by service user in any event. MONTHI,Y RATE (~qMH) - WITH CITY OF DENTON WATER SERVICE (1) Facility Charge $18.37/30 days (2) Volume Charge $2.69/1,000 gallons effluent MONTHI,Y RATE (~qMHO) - OIJTSIDE CORPORATE IJMITS WITH CITY OF DENTON WATER SERVICE (1) Facility Charge $20.40/30 days (2) Volume Charge $3.10/1,000 gallons effluent Except as otherwise stated in this schedule, wastewater volume is calculated based upon a current winter Average Daily Usage, established annually during the previous billing months of December through February, and based upon 98% of actual water consumption during those months. The average daily usage may be calculated using as few as two months. The Average Daily Usage thus calculated establishes the wastewater Volume Charge for each subsequent month, through the following February. For customers without an established winter Average Daily Usage water consumption billing history derived from the preceding billing months of December through February, wastewater volume for each billing month through the following February shall be calculated at the established billable volume (5,000 gallons per month per mobile home) for mobile home park customers not receiving water service. MINIM[ JM BIIJ~ING - WITH CITY OF DENTON WATER SERVICE Facility Charge. Page 6 VOI,I JME CHARGE - WITH CITY OF DENTON WATER SERVICE With a current Average Daily Usage, billings through the following February shall be based on the average daily usage calculated using the following formula. Current Average Daily l Jsage x 98% × Rate per 1,000 gallons 1,000 For customers without an established winter Average Daily Usage, billings shall be based on the established billable volume of 5,000 gallons per mobile home per month. Established Billable Volume × Rate per 1,000 gallons × Number of Mobile Homes 1,000 Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAl, FACIIJTIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACIIJTY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period × Facility Charge 30 days MONTHI,Y RATE (~qMNI/~qMNO) - WITHOI JT CITY OF DENTON WATER SERVICE SMNI SMNO Inside Corporate Outside Corporate l,knits l,knits (1) Facility Charge $18.37/30 days $20.40/30 days (2) Volume Charge $2.69/1,000 gals $3.10/1,000 gals The Customer shall pay a minimum Volume Charge on the established billable volume of five thousand (5,000) gallons per month. Page 7 MINIM[ JM BIIJ,ING - WITHOI JT CITY OF DENTON WATER SERVICE The Facility Charge plus five thousand (5,000) gallons ofwastewater per mobile home. VOLUME CHARGE - WITHOUT CITY OF DENTON WATER SERVICE The billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Minimum Wastewater Volume × Rate per 1,000 gallons × Number of Mobile Homes 1,000 PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAl, FACIIJTIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACILITY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period x Facility Charge 30 days Page 8 SCHEDULE SC COMMERCIAl, AND 1ND[ JSTRIAI, WASTEWATER SERVICE (Effective 10/01/04) REGULAR COMMERCIAL APPIJCATION Applicable to all general commercial and industrial wastewater service users and to all wastewater service users not otherwise specifically classified under a specialized class wastewater rate. Also applicable to all commercial facilities not receiving metered water service from the City of Denton, including subdivisions, for apartments, or other commercial users. MONTHLY RATE (SC) - WITH CITY OF DENTON WATER SERVICE (1) Facility Charge $18.37/30 days (2) Volume Charge $3.49/1,000 gallons effluent Billing based on eighty (80%) percent of monthly water consumption. Plus PRETREATMENT /PROGRAM CHARGES (As Applicable) (SCA) (A) Categorical Customer (SCB) (B) Non-categorical Customer $410.00/30 days $ 50.00/30 days SAMPLING AND ANALYSIS CHARGES (As applicable) (A) Sampling charge (each) $40.00 (B) Analysis charge (per test) $20.00 MONTHI,Y RATE WATER SERVICE (1) Facility Charge (2) Volume Charge - OIJTSIDE CORPORATE IJMITS WITH CITY $20.40/30days $4.02/1,000 gallons effluent Billing based on eighty (80%) percent of monthly water consumption. OF DENTON Page 9 M1NIMI ~VI gll ~l JNG Facility Charge. VOLUME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Water volume ~ .80 × Rate per 1,000 gallons 1,000 COMMERCIAI, AND INDI JSTRIAI, SI JRCHARGE In addition to the above charges for commercial and industrial services, there will be added to the monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Cu = Vu ([Bu-250] B + [Su-250] S]) Where: Gu Vu Bu B Su S is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit BOD per 1,000 gallons. is the tested TSS level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. MONTHI~Y RATE (SCNI/SCNO) - WITHOI JT CITY OF DENTON WATER SERVICE (1) Facility Charge SCNI SCNO Inside Corporate Outside Corporate l,imits l,imits $18.37/30 days $20.40/30 days (2) Volume Charge $3.49/1,000 gals $4.02/1,000 gals The minimum apartment Volume Charge will be for five thousand (5,000) gallons per unit receiving wastewater service per month. Other commercial users will be billed on their estimated monthly wastewater volume. Page 10 M1NIMI J1VI gll,l JNG (1) Facility Charge plus 5,000 gallons wastewater per unit receiving wastewater service. or (2) Facility Charge plus other commercial user estimated monthly wastewater volume. VOlI JME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Minimum wastewater volume × Rate per 1,000 gallons 1,000 Phis PRETREATMENT/PROGRAM CHARGES (As applicable) (1) Categorical Customer (2) Non-categorical Customer $410.00/30 days $50.00/30 days SAMPLING AND ANAI,YSIS CHARGES (As applicable) (1) Sampling charge (each) $40.00 (2) Analysis charge (per test) $20.00 COMMERCIAl, AND INDI JSTRIAI, SI JRCHARGE In addition to the above charges for commercial and industrial services, there will be added to the net monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Cu = Vu ([Bu-250] B + [Su-250] S]) Where: Gu Vu Bu B is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit BOD per 1,000 gallons. Page 11 Su is the tested TSS level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAL FACILITIES All services which require special facilities in order to meet customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACII,ITY CHARGE Billings for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actnal days in reading period × Customer Charge 30 days Page 12 SCHEDULE SCD COMMERCiAL/iNDUSTRIAL WASTEWATER SERVICE WHICH MEASURES WITH DEDICATED WATER METERS (SUB-METERS), WATER FOR WASTEWATER BILLING (Effective 10/01/04) APPIJCATION Applicable to all commercial and industrial wastewater service users and to all wastewater service users not otherwise classified under this ordinance whose wastewater volume is measured by a water meter which measures the water which is returned into the wastewater collection and treatment system. The SCD sub-metered wastewater volumes are billed to the Customer. Not applicable for sub-billing or other utility billing by service user in any event. MONTHI,Y R ATE (1) Facility Charge Billing Per 30 Days 3/4" Meter $24.37 1" Meter $26.64 1-1/2" Meter $33.55 2" Meter $39.11 3" Meter $85.02 4" Meter $159.84 6" Meter $199.51 8" Meter $232.39 10" Meter $280.00 (2) Volume Charge $3.49/1,000 gallons effluent The wastewater billing is based on ninety-eight (98%) percent of the actual water volume submetered. MINIMI JM BII J ~ING Facility Charge. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. Page 13 ~PECIAI~ FACII]TIE~ All services which require special facilities in order to meet customer's service requirements shall be provided subject to the Special Facilities Rider. COMMERCIAL AND INDUSTRIAL SURCHARGE In addition to the above charges for services, there will be added to the monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Cu = Vu ([Bu-250] B + [Su-250] S]) Where: Gu Vu Bu B Su S is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit BOD per 1,000 gallons. is the tested TSS level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. PRORATION OF FACII,ITY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period x Customer Charge 30 days VOIl JME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Aclnml Water volume ~, .98 x Rate per 1,000 gallons 1,000 Page 14 SCHEDULE SCS COMMERCiAL/iNDUSTRIAL WASTEWATER SERVICE WHICH MEASURES WITH DEDICATED WATER METERS (SUB-METERS), WATER EXCLUDED FROM WASTEWATER BILLING (Effective 10/01/04) APPIJCATION Applicable to all commercial and industrial wastewater service users and to all wastewater service users not otherwise classified under this ordinance whose wastewater volume is calculated by a water meter which measures the water which is not returned into the wastewater collection and treatment system. The SCS sub-metered wastewater volumes are consumed in the customer's processes, not returned to the wastewater system, and are therefore excluded from the customer's wastewater billing volumes. Not applicable for sub-billing or other utility billing by service user in any event. MONTHI,Y R ATE (1) Facility Charge Billing Per 30 Days 3/4" Meter $24.37 1" Meter $26.64 1-1/2" Meter $33.55 2" Meter $39.11 3" Meter $85.02 4" Meter $159.84 6" Meter $199.51 8" Meter $232.39 10" Meter $280.00 (2) Volume Charge - None The wastewater billing exclusion is based on one-hundred (100%) percent of the actual water volume submetered. MINIMUM BILLING Facility Charge. Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. Page 15 ~PECIAI~ FACII]TIE~ All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. WASTEWATER SI JRCHARGE In addition to the above charges for services, there will be added to the monthly rate a surcharge based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Cu = Vu ([Bu-250] B + [Su-250] S]) Where: Gu Vu Bu B Su S is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit BOD per 1,000 gallons. is the tested TSS level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. PRORATION OF FACII,ITY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period x Customer Charge 30 days VOIl JME CHARGE EXCII JSION The wastewater volume exclusion shall be based on the water volume calculated during the billing period. This sub-metered volume shall be excluded, i.e. removed, from the master meter water volume prior to the wastewater billing volume calculation. Page 16 SCHEDULE SEE EQUIPMENT SERVICES FACILITIES AND RESTAURANTS & FOOD SERVICE ESTABLISHMENTS WASTEWATER SERVICE (Effective 10/01/04) APPIJCATION Applicable to facilities which perform washing, cleaning or servicing of automobiles, trucks, busses or similar equipment and are categorized by Standard industrial Code Numbers 5541, 7549, 7542, and/or similar code classifications. Applicable to all restaurants and food service establishments which prepare and serve food directly to customers and are categorized by Standard industrial Code Numbers 5812, 5813 and/or similar code classifications. MONTHI,Y RATE (SEE) (1) Facility Charge $18.37/30 days (2) Volume Charge $4.82/1,000 gallons effluent Billing based on eighty (80%) percent of monthly water consumption. P[ll~ PRETREATMENT / PROGRAM CHARGES (As applicable) (SEA) (A) Categorical $410.00/30 days (SEB) (B) Non-categorical $50.00/30 days The appropriate Pretreatment/Program charge will be applied if the Customer is identified as either categorical or non-categorical. These charges are not to be applied if the Customer is not designated as either a categorical or non-categorical customer. SAMPLING / ANAI~YSIS CHARGES (As Applicable) (1) Sampling charge (each) (2) Analysis charge (per test) $40.00 $20.00 SEE EXEMPTIONS (1) Customers under the SEE rate shall be charged the SC rate if only pre-wrapped and preprocessed foods are served from their premises and no food processing is performed on the premises so that only minimal organic material is discharged to the Page 17 sanitary sewer. The exemption for the SEE class shall be determined by the City of Denton Environmental Health Services Food Inspection Division. (2) Customers under the SEE rates shall be charged the SC rate plus the applicable industrial surcharge if the Customer: (a) Installs a wastewater sampling manhole on the sanitary sewer discharge line; (b) Agrees to pay for the City to sample and analyze, quarterly, the wastewater discharge for the following: Biochemical Oxygen Demand (BAD), Total Suspended Solids (TSS), and Fats, Oils and Grease (FOG), based on the actual costs; and (c) Agrees to pay, based on the industrial surcharge formula, a surcharge on all wastewater discharged that is in excess of 500 mg/1 of BaD and 550 TSS as determined by the monitoring performed in Section 2(b). MINlM[JM BlLLING Facility Charge. WASTEWATER SI JRCHARGE The wastewater surcharge calculation that applies to equipment services facilities and restaurant and food service establishments claiming the SEE exemption shall be based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Cu = Vu ([Bu-500] B + [Su-600] S]) Where: Gu Vu Bu B Su S is the surcharge for customer X. is the billing volume per 1000 gallons for customer X. is the tested BaD level for user X or 500 mg/1, whichever is greater. is the unit cost factor for treating one unit BaD per 1,000 gallons. is the tested TSS level for user X or 600 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAI~ FACILITIES Page 18 All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACILITY CHARGE Billings for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actnal days in reading period × Customer Charge 30 days VOI,I JME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Water volume ~ .80 × Rate per 1,000 gallons 1,000 Page 19 APPIJCATION SCHEDULE SM METERED WASTEWATER INSIDE AND OUTSIDE CORPORATE IJMITS (Effective 10/01/04) Applicable to any wastewater service Customer whose wastewater discharge is metered from a single customer location and not otherwise classified under this ordinance. MONTHLY RATE Plus (1) Facility Charge (2) Volume Charge SMI SMO Inside Corporate Outside Corporate l,imits l~imits $226.72/30 days $3.49/1,000 gals $260.73/30 days $4.02/1,000 gals (3) Pmtreatment/Program Charge (As Applicable) (SMA) (A) Categorical $410.00/30 days (SMB) (B) Non-categorical $50.00/30 days The appropriate Pretreatment/Program charge will be applied if the Customer is identified as either categorical or non-categorical. The categorical and non-categorical classifications are not bound by corporate limits. These charges are not to be applied if the Customer is not designated as either a categorical or non-categorical Customer by the wastewater utility staff. SAMPI]NG/ANAI~YSIS CHARGE (As Applicable) (1) Sampling charge (each) $40.00 (2) Analysis charge (per test) $20.00 WASTEWATER SI JRCHARGE In addition to the above charges, them will be added to the monthly rate for metered wastewater, a surcharge based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Page 2 0 Cu = Vu ([Bu-250] B + [Su-250] S]) Where: Cu is the surcharge for customer X. gu Bu B Su S is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit BOD per 1,000 gallons. is the tested TSS level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. MINIMI JM BII,I,ING Facility Charge, plus the appropriate Pretreatment / Program Charge, if applicable. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAl, FACIIJTIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACILITY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period × customer charge 30 days VOI I JME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Wastewater volume x Rate per 1,000 gallons 1,000 Page 21 AP2LLCAIZQ~ Applicable for sales SCHEDULE SGE SAI,E OF TREATED WASTEWATER EFFI,I JRNT (Effective 10/1/04) of treated wastewater effluent to any municipal utility or approved private business. Useable for non-potable purposes only. Not intended for human consumption. Not available for resale in any event. PRODI JCT AVAII,ABII JTY Wastewater effluent is available for resale only if volumes are available. Supplies may be limited or unavailable. MONTHI,Y R A TES (1) Facility Charge Billing Per 30 Days 3/4" Meter $ 20.20 1" Meter $ 22.20 1-1/2" Meter $ 25.75 2" Meter $ 31.65 3" Meter $ 66.25 4" Meter $122.50 6" Meter $153.00 8" Meter $178.00 10" Meter $214.00 (2) Volume Charge $1.35/1,000 gallons MINIMI JM BII J,1NG Facility Charge. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. Page 22 ~PECIAI~ FACII]TIE~ All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACII,ITY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period x Customer Charge 30 days VOI I JME CHARGE Billing for the wastewater volume shall be based on the effluent volume calculated during the billing period. Formula: Effluent volume × Rate per 1,000 gallons 1,000 Page 23 SCHEDULE SSC WHOLESALE WASTEWATER TREATMENT SERVICE FOR A GOVERNMENTAL AGENCY: DIVISION: OR SI JBDIVISION (Effective 10/01/04) APPIJCATION Applicable to any municipal corporation, or other governmental agency or subdivision which operates a wastewater collection system and contracts with the City of Denton for wastewater treatment service. MONTHLY RATES (1) (2) Facility Charge $187.20/30 days Pretreatment/Program Charge (As Applicable) (3) (A) Categorical (B) Non-categorical Volume Charge $410.00/30 days $50.00/30 days $2.08/1,000 gallons Billing shall be based on one-hundred (100%) percent of actual gallons measured. SAMPI]NG/ANAI~YSIS CHARGE (As Applicable) (1) Sampling Charge (each) (2) Analysis Charge (per test) M1NIMI JM BII J lNG Facility Charge. WHOI ~ESAI,E SI JRCHARGE $40.00 $20.00 In addition to the above charges for wholesale wastewater services, there will be added to the monthly rate an industrial surcharge based on the following formula: Surcharge Unit Cost Factor $0.004609 mg/1 of Biochemical Oxygen Demand (BOD) $0.002526 mg/1 of Total Suspended Solids (TSS) Page 24 Cu = Vu ([Bu-250] B + [Su-250] S]) Where: Cu is the surcharge for customer X. gu Bu B Su S is the billing volume per 1000 gallons for customer X. is the tested BOD level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit BOD per 1,000 gallons. is the tested TSS level for user X or 250 mg/1, whichever is greater. is the unit cost factor for treating one unit of TSS per 1,000 gallons. PAYMENT Bills are due when rendered, and become past due if not paid within fifteen (15) calendar days from date of issuance. SPECIAl, FACIIJTIES All services which require special facilities in order to meet Customer's service requirements shall be provided subject to the Special Facilities Rider. PRORATION OF FACIIJTY CHARGE Billing for the Facility Charge shall be based on twelve (12) billings annually and shall be prorated based on the following formula: Actual days in reading period x customer charge 30 days VOII JME CHARGE Billing for the wastewater volume shall be based on the wastewater volume calculated during the billing period. Formula: Wastewater volume x Rate per 1,000 gallons 1,000 Page 25 SCHEDULE CWM DYNO DIRT PRODI JCTS (Effective 10/1/04) Applicable to any and all customers, whether residemial, commercial, or wholesale, which elect to acquire the City of Demon's Dyno Dirt products for their use. The City of Demon reserves the right to restrict or limit the sale of all Dyno Dirt products to any customer at any time. R A TES Dyne Dirt products will be sold by volume on a cubic yardage basis, or in one cubic foot bags. Bulk quantities will not be sold in volumes less than one-half cubic yard. (A) Compost (1) Dyne Soil (Top Soil Blend) (2) Dyne Dirt (3) Dyne Lite $27.50 Cubic Yard $22.50 Cubic Yard $30.00 Cubic Yard (B) Wood Mulch (1) Dyno Brown Mini Mulch (2) Dyne Chips (3) Dyne Deco Colored Mulch (4) Dyne Double Grind $17.50 Cubic Yard $10.00 Cubic Yard $30.00 Cubic Yard $17.50 Cubic Yard Purchases, for (A) and (B) above, greater than ten (10) cubic yards will receive a 20% discoum, purchases greater than one hundred (100) cubic yards will receive a 40% discount, and purchases greater than 500 yards will receive a 50% discount. (C) City of Demon departmems will receive a 50% discount on all purchases of Dyne Dirt products. (D) One cubic foot bags of Dyno Dirt $1.50 / bag (50 Bag Minimum Purchase) PRODUCT AVAILABILITY The City of Demon produces Dyno Dirt products throughout the year in varying limited quamities. The City of Demon does not guarantee the availability of any product, and expressly reserves the right to restrict the sale of any product based upon available volumes. Page 2 6 I,OCATION All Dyno Dirt products may be purchased from the City of Demon at the following location: Compost Sales Bldg. Water Reclamation Plato Address 1100 Mayhill Rd. WHOI,ESAI ~E PI JRCHASES All Dyno Dirt products purchased wholesale, for resale to the public, is to be idemified as a City of Demon manufactured product. The wholesale purchaser must provide the City of Demon selling price information to the retail customer if it is requested. Page 27 SCHEDULE GBL GR A SS/BRI JSH/I,EAVES (Effective 10/1/04) APPIJCATION Applicable to all City of Demon residems who submit for deposit at the landfill grass clippings, brush, and/or leaves, who shall pay the following rates: GR A S S/BRI JSH/I,EAVES: Product Characteristics 1. Uncomaminated bagged or un-bagged $16.25/ton grass, brush, or leaves in less than twelve foot (12') lengths. 2. Uncomaminated bagged or un-bagged $27.00/ton grass, brush, or leaves in greater than twelve foot (12') lengths. o Comaminated grass, brush, or leaves of any length: waste originating within Demon's city limits waste originating outside of Demon's city limits $33.75/ton (<3 cubic yards) $39.00/ton (>3 cubic yards) $41.00/ton 4. Whole trees and stumps $48.75/ton MINIMUM CHARGE $7.50 per load. Professional landscapers, tree trimmers, and yard maimenance personnel are required to bring their grass, brush, or leaves (all collectible yard waste) to the landfill, and are not permitted to leave any of the above-referenced collectible yard waste items stacked or piled on the curb at the Customer's location. Grass, brush, and leaves shall not be assessed the City of Demon solid waste 3.5% surcharge to compensate for the State of Texas surcharge for all solid waste received at landfills if the materials are not landfilled. Page 28 SCHEDULE ST WASTEWATER TAP FEES (Effective 10/01/04) This schedule applies to the installation, removal, or relocation of wastewater taps by the City of Denton Utility Department at the request of any person, firm, association, corporation, or other legal entity. TAP FEES Any person, firm, association, corporation, or other legal entity that requests that a wastewater main tap be removed, installed, or relocated by the Wastewater Utility Department shall pay in advance to the Wastewater Utility Department the following applicable fees: WASTEWATER TAPS WITH CLEANOUT Size of Tan Paved Street l lnnaved Street 4 inch $2,000.00 $1,410.00 6 inch 2,110.00 1,570.00 8 inch 2,220.00 1,730.00 10 inch 2,380.00 1,865.00 MANHOI,E BREAKOI JT FEE 6"- 12"Line $165.00 FEES FOR INSTAIJ~ATIONS NOT lISTED For installation of a tap for which a fee is not specified, the requestor shall pay in advance a deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20%. Upon completion of the installation or similar work requested, the customer shall be billed at actual cost, as determined by the Wastewater Utility Department, plus a 20% administrative charge. Any excess deposit shall be refunded to the Customer. Page 2 9 SCHEDULE STE TREATED EFFLUENT WASTE~3/ATER TAP FEES (Effective 10/01/04) APPLICATION This schedule applies to the installation, removal, or relocation of treated effluent wastewater taps by the City of Denton Utility Department at the request of any person, firm, association, corporation, or other legal entity. TAP FEES Any person, firm, association, corporation, or other legal entity that requests that a wastewater main tap be removed, installed, or relocated by the Wastewater Utility Department shall pay in advance to the Wastewater Utility Department the following applicable fees: REUSE WASTEWATER LINE TAPS Size of Tap Paved Street I Jnpaved Street 4 inch $2,705.00 $1,625.00 6 inch 2,920.00 1,895.00 8 inch 3,895.00 2,815.00 12 inch 4,865.00 3,730.00 FEES FOR INSTAIJ,ATIONS NOT IJSTED For installation of a tap for which a fee is not specified, the requestor shall pay in advance a deposit based upon the estimated cost of such installation, or similar work, plus an administrative charge of 20%. Upon completion of the installation or similar work requested, the customer shall be billed at actual cost, as determined by the Wastewater Utility Department, plus a 20% administrative charge. Any excess deposit shall be refunded to the Customer. Page 30 SCHEDULE OSSF ON-SITE SEWAGE FACII,TY PERMIT FEES (Effective 10/01/04) APPLICATION This schedule applies to the new construction of aerobic treatment systems, new construction of non-aerobic treatment systems, and repair and alteration of the above. OSSF PERMIT FEES Any person, firm, association, corporation, or other legal entity that requests a wastewater system work permit shall pay in advance to the Wastewater Utility Department the following applicable fees: New Construction of aerobic treatment systems New Construction of non-aerobic treatment systems Repair or Alteration fees (All types of OSSF's) $410.00 $210.00 $5O.OO Page 31 SCHEDULE SD STORM DR A1NAGE FEES (Effective 10/01/04) Applicable to all impervious real property and appurtenances owned and located within the incorporated limits of the City of DeNon, Texas, except as exempted below. The Storm Drainage fee charged to each tract of real property is based upon the amoum of impervious surface cover that results in water runoff imo the City of DeNon drainage system. MONTHI~Y FEE - RESIDENTIAI~ (~qDR) The residemial fee is applicable to all single-family through fourplex real properties located within the incorporated limits of the City of DeNon, Texas, for which impervious surfaces can be individually idemified. The residemial fee is established by utilizing a block system. The fee charged in each fee block is set forth and established as follows: FEE BI,OCK BIIJ]NG PER 30 DAYS 0 - 600 Square Feet 601 - 1,000 Square Feet 1,001 - 2,000 Square Feet 2,001 - 3,000 Square Feet 3,001 - 4,000 Square Feet 4,001 - 5,000 Square Feet 5,001 - 6,000 Square Feet Over 6,000 Square Feet $ 0.50 $ 1.00 $ 3.35 $ 5.45 $ 7.60 $ 9.75 $12.00 $15.50 MONTHLY FEE - NON-RESIDENTIAL (SDN) The non-residemial fee is applicable to all other real property owned and located within the incorporated limits of the City of Demon, Texas, except as exempted below. The non-residemial fee is based upon the total square footage of impervious surface cover measured for each customer/owner. Formula: Measured Square Footage of Impervious Surface Cover x $0.00186 per 30 days Page 32 PRORATION OF MONTHI,Y FEE Billing for the Storm Drainage Fee shall be based upon twelve (12) billings annually and shall be prorated based on the following formula: Actual Days In Billing Period x Monthly Fee 30 days The following real property owned and located within the incorporated limits of the City of Demon, Texas shall be exempt from imposition of the residemial fee or the non-residemial fee: 1. Real property with proper construction and maimenance of a wholly sufficiem and privately- owned drainage system, not draining imo the City of Demon drainage system, upon the real property's inspection and certification by the City; or 2. Real property held and maimained in its natural state, umil such time that the real property is developed, and all of the public infrastructure constructed thereon has been accepted by the City; or 3. Real property, consisting of an unimproved subdivided lot, until such time as a structure has been built on the lot and a certificate of occupancy has been issued by the City. No other exemptions to the residemial fees or the non-residemial fees are applicable. Page 33 ~PECIAI, FACIIJTIE~ RIDER (Effective 10/01/04) (2) All service shall be offered from available facilities. If a customer service request for a special or unusual service not otherwise provided for by the Wastewater rate ordinance, and/or requires facilities and devices which are not normally and readily available at the location at which the Customer requests the service, then the City shall provide the service subject to the requirements of paragraph (2) of this rider. The total cost of all facilities required to meet the Customer's special requirements which are incurred by the City in connection with rendering the service, shall be subject to a special contract entered into between the Wastewater Utility Department and the Customer. This contract shall be signed by both parties prior to the City providing the requested service to the Customer. Page 34 SECIIO2~2, That all ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. ~ECfflO2~3~ That if any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. That the Schedule of Rates herein adopted shall be effective, charged and applied to all wastewater service rendered on or after October 1, 2004, and a copy of said rates, fees, and charges shall be maintained on file in the Office of the City Secretary. PASSED AND APPROVED this the __day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents\Ordinances\04\2004-2005 Wastewater Rate Ordinance.doc Page 3 5 ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE SCHEDULE OF RATES FOR SOLID WASTE SERVICE CONTAINED iN ORDINANCE NUMBER 2003-351 AS AUTHORIZED BY CHAPTER 24 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS; PROVIDING THAT THE PROVISIONS OF SECTIONS 26-3, 26-4, 26-5, 26-7, 26-8(a), AND 26-9 OF THE CODE OF ORDINANCES OF THE CiTY OF DENTON, TEXAS SHALL EXPRESSLY APPLY TO CITY OF DENTON SOLID WASTE SERVICE; AMENDING THE MANUAL RESIDENTIAL RATE BY LOWERING THE MONTHLY CHARGE; ADDING A PROVISION LIMITING THE MANUAL RESIDENTIAL RATE CHARGE TO EIGHT (8) BAGS PER COLLECTION DAY; ADDING A PROVISION IN THE MANUAL RESIDENTIAL RATE CHARGE THAT ESTABLISHES A SERVICE CHARGE FOR THE COLLECTION AND DISPOSAL OF REFUSE IN EXCESS OF EIGHT (8) BAGS PER COLLECTION DAY; ADDING A REQUIREMENT TO THE CONTAINERIZED COLLECTION SERVICE RATE REQUIRING ALL REFUSE TO BE PLACED WITHIN THE CART WITH THE CART LID FULLY CLOSED; ADDING A PROVISION THAT ESTABLISHES THE AUTOMATIC COLLECTION AND BILLING FOR EXCESS VOLUMES OF REFUSE AND/OR YARD WASTE (SCHEDULE SWR); AMENDING THE RESIDENTIAL RECYCLING AND PROCESSING SERVICE RATE TITLE; AMENDING THE RESIDENTIAL RECYCLING AND PROCESSING SERVICES MONTHLY RATE CHARGE (SCHEDULE SWRR); AMENDING THE RESIDENTIAL FINANCIAL NEED DISCOUNT RATE TITLE; ADDING THREE QUALIFICATION REQUIREMENTS FOR THE RESIDENTIAL FINANCIAL NEED DISCOUNT RATE; ADDING A PROVISION LIMITING THE PERIOD FOR WHICH THE RESIDENTIAL FINANCIAL NEED DISCOUNT IS EFFECTIVE TO ELIGIBLE RECIPIENTS WHO RECEIVE FUNDS FROM THE PLUS-ONE PROGRAM (SCHEDULE SWRD); AMENDING THE COMMERCIAL SOLID WASTE COLLECTION SERVICES RATE TITLE; ADDING A PROVISION CLARIFYING THE CONTAINER SAME DAY EXTRA SERVICE CHARGE; ADDING A PROVISION WHEREIN THE USE OF SHARED COMMERCIAL CONTAINERS SHALL BE DETERMINED BY SOLID WASTE DEPARTMENT STAFF, INCLUDING THE APPROPRIATE RATES THEREFOR; AMENDING THE ROLL-OFF CONTAINER RELOCATION FEE; ADDING A PROVISION THAT STATES THAT IF A LOADED SIDE-LOAD OR FRONT-LOAD CONTAINER EXCEEDS THE APPLICABLE WEIGHT LIMITATION SET FORTH IN THIS ORDINANCE, THAT THE CUSTOMER SHALL EMPTY THE CONTAINER AND THE SOLID WASTE DEPARTMENT SHALL ONLY COLLECT AND DISPOSE OF THE REFUSE THAT IS AT OR BELOW THE WEIGHT LIMITATION PRESCRIBED BY THIS ORDINANCE (SCHEDULE SWC); AMENDING THE COMMERCIAL RECYCLING SERVICES SECTION ON ACCEPTABLE RECYCLABLE MATERIALS; (SCHEDULE SWCR); ADDING THE COLLECTION AND TRANSPORTATION SERVICES PERMIT RATE SCHEDULE (SCHEDULE SWP); ADDING A PROVISION CLARIFYING THE APPLICABLE LANDFILL INERT MATERIALS RATE RESPECTING CLEAN AND UNCONTAMINATED BRICK; AMENDING THE SPECIAL WASTE PROVISIONS; ADDING THE LANDFILL OTHER CHARGES RATE (SCHEDULE SWL); PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: ~. That the charges for Solid Waste collection services as authorized by Section 24-42(b) of Article II, Section 24-66 of Article III and Section 24-4 of Article I of Chapter 24; and by Section 32-90 of Article IV of Chapter 32 of the Code of Ordinances of the City of Demon, Texas, are hereby established as follows: SOLID WASTE RATE SCHEDULES PAGE SWR Residemial Solid Waste Collection Services 3 SWRR Residemial Recycling and Processing Services 5 SWRD Residemial Financial Need Discount 6 SWC Commercial Solid Waste Collection Services 7 SWCR Commercial Recycling Services 13 SWP Collection and Transportation Services Permit 15 SWL Sanitary Landfill Services 20 SCHEDULE SWR RESIDENTIAl, SOIJD WASTE COIJ,ECTION SERVICES (Effective 10/01/04) Applicable for residential family-unit solid waste collection service. A family unit includes each unit of a duplex or triplex, each living unit of a residential lot, and any single unit or living space in which a person or single family resides. MONTHI,Y R A TES · Manual Collection Service: 2 pickups per week $17.75 per thirty (30) days The City will provide up to two (2) free rolls of plastic bags per calendar year for the residential manual service customer's primary residence. Service charges for the collection and disposal of refuse in excess of eight (8) bags per collection day will be billed at the rate of $10.00 per cubic yard for all additional bagged refuse. The Solid Waste Department staff will automatically provide and bill for excess collection and disposal services if the additional charges are $25.00 or less. · Containerized Collection Service 1 pickup per Week Nominal Size of Containers 90-gallon container (nominal) 60-gallon container (nominal) 35-gallon container (nominal) 1 Container $15.00 $13.00 $12.00 2 Containers $28.00 per thirty (30) days $25.00 per thirty (30) days All refuse must be placed within the cart with the lid fully closed. MINIMI JM BIIJJNG / BASE RATE SERVICE $11.70 per thirty (30) days applicable for residential solid waste service for an unoccupied residential family unit which remains vacant for a period for greater than sixty (60) days. This minimum billing rate shall only be effective after written application is made by the ratepayer with the Customer Service Department, and such minimum billing rate shall be limited to a maximum period of one hundred eighty (180) days per calendar year. OTHER CHARGES There is no additional charge for the collection of bagged grass clippings and leaves, or brush and tree limbs which are cut and stacked in less than four foot (4') lengths, if the combined grass/leaves/brush total volume is not over eight cubic yards per collection day. If over eight (8) cubic yards of combined bagged grass clippings, brush, or leaves are placed out for collection on a collection day, excess volume charges will be assessed at $5.00 per cubic yard for all cubic yards in excess of eight (8) cubic yards. The Solid Waste Department staffwill automatically collect and bill for excess volumes of yard waste if the additional charges are $25.00 or less. Residential customers may be provided metal containers and service at the published commercial rates. Residential customers may place out for collection up to four bulky items per week for no additional charge. Bulky items are residential household type items that are consistent with residential household use, such as furniture and selected appliances. Bulky items exclude non-household type items, fencing, remodeling, construction and demolition materials, and those appliances manufactured to contain polychlorinated biphenyls (PCB's) or chlorofluorocarbons (CFC's). Residential construction materials (including but not limited to lumber, brick, fencing, and drywall) will be collected at the rate of $50.00 per service charge plus $5.00 per cubic yard or part of a cubic yard collected. Materials must not exceed eight (8') feet in length. Customers should contact Solid Waste Department Customer Service during normal business hours to request the collection of residential construction materials. Appliances manufactured to contain PCB's or CFC's, for which the customer provides no certified removal documentation of the PCB's or CFC's, will be charged $50.00 for the collection and disposal of each appliance and/or the associated materials. There is no charge for the collection of appliances which were manufactured to contain either PCB's or CFC's, if the customer provides a certificate of documentation from an approved business qualified to remove these products indicating that the PCB's or CFC's have been properly removed for disposal. If the Solid Waste Department is not provided a certificate of removal, the $50.00 charge per item will be assessed if the customer requests services through the Solid Waste Department. Other residential services may be provided at fees established by the department, and approved by the Director. The fees established will recoup the special and administrative services provided. When initiating new service, a residential Solid Waste service deposit may be charged. SCHEDULE SWRR RESIDENTIAL RECYCLING AND PROCESSING SERVICES (Effective 10/01/04) APPIJCATION Applicable for residential family-unit recycling materials collection and processing services. A family unit includes each unit of a duplex or triplex, each living unit of a residential lot, and any single unit or living space in which a person or single family resides. MONTHI,Y R ATE $2.99 per thirty (30) days. Should any other fees be established by an authorized governmental entity, those fees will be added to the monthly rate to recover those costs. M1NIMI JM BII J lNG $2.99 per thirty (30) days. If any other fees are established by an authorized governmental entity, the minimum billing would adjust to include those costs. EXCEPTION TO IMPOSITION OF RATE The residential curbside recycling and processing services rate will not be charged for an unoccupied residential family unit that applies for and is granted the Minimum Billing/Base Rate Service as described in Schedule SWR. This exception shall be effective so long as the Minimum Billing/Base Rate Service rate is applicable to the unoccupied residential family unit. SCHEDULE SWRD RESIDENTIAL FINANCIAL NEED DISCOUNT (Effective 10/01/04) APPLICATION Applicable for residemial family-unit solid waste collection and recycling collection and processing service customers. A family unit includes each unit of a duplex or triplex, each living unit of a residemial lot, and any single unit or living space in which a person or single family resides. QI JAI,IFICATION Residems who wish to receive the Residemial Financial Need Discoum shall qualify for the discount if the following requiremems are met: 1. They receive financial assistance from the Plus One Program; and. 2. They are a City of DeNon residemial solid waste customer; and. 3. They inform the City's Customer Service Departmem of their desire to participate in the program. DISCOI JNT TERM The discount is effective for each family for those months in which they receive funding from the Plus One program. MONTHI,Y DISCOI JNT RATE A reduction of the Residemial Solid Waste Service charges by $3.50 per thirty (30) days. SCHEDULE SWC COMMERCIAL SOLID WASTE COLLECTION SERVICES (Effective 10/01/04) APPIJCATION Every owner, occupant, tenant, or lessee of any business, commercial, or institutional property not entitled to receive residential refuse collection service shall be required to have commercial solid waste collection service provided by the City of Denton. New commercial business development and redevelopment requires that commercial solid waste service requirements be reevaluated and services be provided under current service requirements. Business development includes, but is not limited to any of the following: new business construction, existing business expansions or remodeling, and existing business site revisions. With these occurrences, the Planning and Development Department's Denton Development Code and Site Plan Criteria Guidelines will apply. MONTHI,Y R ATE Commercial refuse collection services are provided through a volume-based rate system. PERMANENT FRONT IDAD CONTAINER SERVICE (Long Term Scheduled Service) In addition to the container service listed in this subsection, these rates also include the demand response collection of up to eight (8) bulky items per month, per customer account. 1. 8 CUBlC YARD CONTAINER Front Load Pickups Cubic Yards Rate Per Per Week Per Week 3O_Dmys 1 8 $103.47 2 16 $206.72 3 24 $312.69 2. 6 CUBIC YARD CONTAINER Front Load Pickups Cubic Yards Rate Per Per Week Per Week 30 Days 1 6 $84.66 2 12 $169.50 3 18 $255.52 3. 4 CUBIC YARD CONTAINER From Load Side Load Pickups Cubic Yards Rate Per Rate Per Per Week Per Week 3O_Da~ Z0_Dmys 1 4 $65.29 $75.26 2 8 $130.58 $150.43 3 12 $196.22 $226.32 4. 2 & 3 CUBIC YARD CONTAINERS From Load Side Load Pickups Cubic Yards Rate Per Rate Per Per Week Per Week 30 Days 30 Days 1 3 $53.34 $61.51 2 6 $107.02 $123.46 3 9 $161.50 $185.53 The Solid Waste Department will establish rates to recover the cost of service for collection services at frequencies greater than three times per week. New two yard and side load comainer services are no longer available. Customers curremly receiving two yard or side load comainer services that discominue these services may not reinstate them in the future. 5. CONTAINER EXTRA SERVICE (For a comainer reload and extra empty) Container Size 2 & 3 CY container 4 CY container 6 CY container 8 CY container Collection Service Fee $29.35 per pickup $34.80 per pickup $45.65 per pickup $56.50 per pickup These extra service fees apply if the truck, while on route, remains on-site to provide the additional service. The driver waits while the customer reloads the container. On-site waiting time in excess of fifteen (15) minutes will be charged to the customer at the rate of $85.00 per hour. Waiting time will be billed in fifteen- minute incremems. If the driver is called in from off-site to provide same day extra service, there is a $50.00 same day service charge, plus the applicable collection service fee. COMMERCIAl, CART SERVICE Commercial cart service is not available city-wide. In those areas where cart collection is available, small quantity waste generators may contract for once a week cart service. Bulky item collection services are not provided for commercial cart service customers. One (1) pickup per week service: Cart Canacitv 1 Cart 2Cans 90 gallon (nominal) $15.00 $28.00 60 gallon (nominal) $15.00 $25.00 Extra empties performed while on-site will be provided at the one-cart rates listed above. Customers on commercial cart service where fully automated collection service cannot be provided will be charged an additional $2.00 per month per cart for providing semi- automated (manual) collection service. C. HAND COI,I,ECTED COMMERCIAl, SERVlCE The rate for hand collected commercial accounts will be the rate charged for a three (3) cubic yard container serviced one time per week; or a rate established to recover the cost of service, whichever is greater. Bulky Item collection services are not provided for hand collected commercial refuse service customers. D. TEMPORARY FRONT IDAD CONTAINER SERVICE 4 CY container 8 CY container Monthly Container Rental $32.90 $54.10 Collection Service Fee $62.35 perpickup $84.55 perpickup Temporary service accounts incur container delivery charges to initially place the containers. The use of a temporary container requires minimum service and/or billing a minimum of once a month. E. ROIJ~-OFF OPEN TOP CONTAINER SERVICE 20 CY container 30 CY container Mon~ly Container Rental $81.70 $94.05 Collection Service Fee $238.10 per pickup $291.85 per pickup Customers that request the driver wait while they reload the container, in order for the City to provide an additional empty(s), will be charged the collection service fee and on- site waiting time in 15 minutes increments at the rate of $85.00 per hour. The use of a temporary roll-off container requires minimum service and/or billing a minimum of once a month. The Solid Waste Department will establish rates to recover the cost of service for unlisted container sizes. Construction and demolition material (C&D) collections will be provided using 20 cubic yard containers. ROI,I,-OFF COMPACTOR CONTAINER SERVICE 20 CY compactor 30 CY compactor 42 CY compactor Monthly Container Rental $261.45 $295.55 $337.65 Collection Service Fee $299.50 per pickup $340.05 per pickup $389.60 per pickup The Solid Waste Department will establish rates to recover the cost of service for unlisted container sizes. 6 CUBIC YARD COMPACTOR SERVICE Pickups Rate Per Per Week 30 Days 1 $246.03 2 $493.16 3 $759.66 MULTI-FAMILY BULKY ITEM COLLECTION SERVICE Container Size 4 CY SL container 8 CY FL container Mon~lv Container Rental $15.00 $15.00 Collection Service Fee $35.00 perpickup $45.00 perpickup These services are provided for the collection of residential household bulky items. Items which will not be collected include: refrigerators, freezers, air conditioners, or any other item manufactured to contain CFC's or PCB's. Collection services using these containers shall occur during the customer's normal refuse collection route service. The customer must contact Customer Service and request the bulky item container collection service on the day prior to the requested collection date. Items placed in the container may not extend beyond 7 feet high from the bottom of the container. If the container is not serviced during the normal route, and the customer desires a special collection service, services will be provided at the standard service fees. If the bulky item container is contaminated with refuse, construction materials, or contains other non-bulky materials, the standard service fees will apply. SHARED COMMERCIAL CONTAINERS Shared commercial container customers must have at least one (1) cubic yard of service per customer per week. The use of shared commercial containers shall be determined by the Solid Waste Department staff. Rates will include the additional monitoring, billing, and administrative costs associated with this service. MINIMUM COMMERCIAL CHARGE A minimum charge of $15.00 per thirty (30) days will be charged to all commercial solid waste customers. Shared accounts are subject to other applicable service fees. SPECIAl, WASTE Denton's acceptance and disposal of Special Waste is defined by the State of Texas in the Texas Municipal Solid Waste Management Regulations and is conditional upon the waste requested for disposal. Acceptance of special waste is subject to Federal and State laws and regulations, and the City of Denton has the right to refuse to accept or collect special waste at their discretion. Charges, approved by the Director of Solid Waste, for the collection and disposal of special waste, will be established based on the type of special waste, and the requirements for collection and disposal of the waste. OTHER CHARGES A delivery fee of $75.00 per comainer will be charged to all customers for roll-off comainers. A delivery fee of $50.00 per comainer will be charged to all customers for from load or side load comainers. A relocation fee of $75.00 will be charged for each roll-off comainer that is relocated at the customer's site, unless relocation occurs during a service. A $50.00 fee will be charged for each request for same day collection by on-demand roll-off customers. The solid waste department customer service personnel must receive on-demand service requests prior to 11:00 A.M. on the day service is requested in order to provide same day collection service. An access fee will be charged for comainers that presem accessibility problems, and/or additional services or time. Comainers that are inaccessible at the time of collection will be charged an inaccessible fee of $75.00 for roll-off comainers and $50.00 for all other comainers. On-site waiting time will be charged in fifteen (15) minute incremems at the rate of $85.00 per hour. A $125.00 fee will be charged to install or remove comainer locks. Loaded side load comainers shall not exceed a total weight of one ton. Loaded from load containers shall not exceed a total weight of two tons. Any container evaluated by the City's collection manager to contain excess weight shall be emptied by the customer to the level determined by the collection manager prior to being serviced. Tickets and/or fines for overweight roll-off loads, and the City's administrative costs, are the responsibility of the customer, and shall be paid by the customer. A minimum of once per week pickup service is required for comainers in which putrescible waste is placed. Up to eight (8) bulky items per customer, per momh, will be picked up from each permanent commercial account customer at no additional charge. For this service, commercial customers must call Solid Waste Customer Service by 5:00 p.m. on the day before the collection. Bulky items shall not be placed near or adjacem to comainers prior to 48 hours before the scheduled bulky item collection. A service fee of $10.00 per bulky item will be charged for each bulky item in excess of eight (8) bulky items collected. Multi-family bulky item route collection services are available for customers desiring those services. Demand response bulky item collection services will be charged a $50.00 service fee, plus a fee of $10.00 per bulky item collected. Bulky items may be delivered to the landfill by the customer. Solid waste customers may deliver up to four times per month, and up to 200 pounds of bulky items per delivery, to Demon's landfill at no charge. Loads in excess of 200 pounds will be charged landfill rates. Appliances manufactured to contain PCB's or CFC's, for which the customer provides no certified removal documemation of the PCB's or CFC's, will be charged $50.00 for the collection and disposal of each appliance and/or the associated materials. There is no charge for the collection of appliances which were manufactured to comain either PCB's or CFC's, if the customer provides a certificate of documemation from an approved business qualified to remove these products indicating that the PCB's or CFC's have been properly removed for disposal. If the Solid Waste Department is not provided a certificate of removal, the $50.00 charge per item will be assessed if the customer requests services through the Solid Waste Department. Overflowing and excess waste containers, which are determined to necessitate collections by solid waste personnel, will be charged a $50.00 service fee, plus a $35.00 charge per cubic yard for overflowing and excess waste outside the comainer, which is collected, comainerized, and serviced by Solid Waste departmem personnel. Other commercial services may be provided at fees established by the Solid Waste Departmem, and approved by the Director of Solid Waste. The fees established will recoup the costs and administration of the special services provided. For permanem comainers, a commercial solid waste service deposit, if required, will be charged based on two months of the projected billing amoum. Following a service review, if the deposit is determined to be under-projected, additional deposit funds are required to cominue receiving service. For temporary containers, a commercial solid waste service deposit is required. It will be charged at 50% of the estimated billing amount, or two months of estimated service, whichever is less. Following a service review, if the deposit is determined to be under- projected, additional deposit funds are required to cominue receiving service. 12 SCHEDULE SWCR COMMERCIAl, RECYCIJNG SERVICES (Effective 10/01/04) APPIJCATION Owners and managers of various multi-family living units, businesses, commercial and institutional businesses, and properties receiving commercial solid waste collection services are subject to receive a refuse audit to determine if they generate enough commercial recyclables to warrant receiving commercial recycling services. Commercial recycling services are available to specific commercial customers only. QI JAI JFICATION Commercial recycling is not available for all multi-family living units and commercial and institutional businesses operating within the City of Denton. The Director of Solid Waste or his designee will evaluate interested and solicited commercial businesses and the projected volume of recyclable materials from these businesses to determine if commercial recycling services justify being provided. MONTHI,Y R ATE Rates will recover the cost of service. Rates will vary by container size, frequency of collection service provided, and commodity collected. Based on the recyclable volumes projected, and the City's recommendation, collection services will be provided using either a fixed or demand response collection schedule. MINIMI JM BII J,lNG The minimum billing required is the amount of service provided and applicable for billing each month. ACCEPTABI,E RECYCI,ABI,E MATERIAI,S Acceptable materials depend on local commodities markets and will be mutually agreed upon by the commercial recycling customer and the City. NON-ACCEPTABI,E MATERIAI,S Only materials mutually agreed upon by the commercial recycling customer and the City are acceptable in the provided recycling container. The owner/manager of the commercial entity is the party responsible for notifying his/her personnel of proper recycling procedures. 13 RIGHT OF I,OAD REFI JSAI, The City reserves the right to refuse recycling loads containing any materials other than the contracted material. If a load is refused as recycling by the City, it will be handled as municipal solid waste (MSW) and incur both the contracted recycling charges as well as associated commercial solid waste disposal rates. OTHER CHARGES All other solid waste services performed will be charged at listed solid waste rates, or at fees established to recoup the costs and administration of the services provided. 14 SCHEDULE SWP COLLECTION AND TRANSPORTATION SERVICES PERMIT (Effective 01/01/05) Any person, emity, or business engaged in the collection and transport of waste or recyclables, including but not limited to municipal solid waste, special wastes, hazardous wastes, and those wastes or recyclables the city does not collect and transport, must possess a current permit issued from the city prior to providing collection and transportation services in the city limits of Demon. Permits for collection and transportation services are required for, but are not limited to, the following wastes: · Special Waste · Medical Waste · Hazardous Waste · Restaurant Oil and Grease Waste · Grease Trap Waste · Commercial and Industrial Recyclable Materials · Residential Recyclable Materials · Construction and Demolition (C&D) waste, recyclables, reusables, and discarded C&D materials · Waste and recyclable collection service providers operating in newly annexed areas, or contract service providers for the city The person applying for a permit will make application through the City's Solid Waste Departmem on forms provided for that purpose, and shall pay the required application fees at the time of permit application. Application, service, and comainer fees must be paid prior to the issuance of the permit. Fees calculated as a percemage of gross revenues will be paid a minimum of quarterly. All permits are non-transferable and are grained as non-exclusive service permits. Granting permits will be at the discretion of the Director of Solid Waste to meet the needs of the community. The permit applicant must pay the required fees, and meet all permit requirements prior to the issuance of a permit. GRANTING OF PERMIT As a condition of granting a permit, permittees agree to execute and comply with all requiremems of the service agreemem, carry specific types and amoums of insurance, submit reports, and timely pay the necessary fees. Following the graining of a permit, permit stickers will be issued by the City and placed on all vehicles operating within the city limits of Demon and on all comainers placed within the city limits of Denton. Collection and transportation vehicles operating in Denton, and containers set in Denton, are required to display a current calendar year permit sticker. The Director of Solid Waste, or designee, after reviewing the permit application and agreemem, and 15 after conducting any necessary research, may issue the permit, issue the permit with conditions, or deny the issuance of the permit. The Director of Solid Waste will establish the number of permits to be issued in each materials category. Individuals living within the city limits of Demon, and hauling personal materials, wastes, or recyclables from their primary living residence are exempt from this requiremem. Application fees are payable at the time of application submittal and shall be submitted to the Director of Solid Waste or designee, 1527 South Mayhill Road, Demon, Texas. Application, vehicle, and comainer fees are due and payable prior to the issuance of a permit. Application, service, and comainer fees are non-refundable. Service and comainer fees are non-transferable between vehicles and comainers, and are unit specific. Service fees based on a percemage of gross revenues are due quarterly and require paymem within 30 calendar days following the end of each calendar quarter. Imerest charges, late charges, and other fees will accrue for delinquem quarterly payments. Permits are issued annually and are effective from January 1st or the date of issuance, whichever is later, through December 31 st of the same calendar year. The permit application process should be initiated and fees should be paid as early as possible during the last quarter of each calendar year for the upcoming calendar year, so that adequate time is available for review and processing of the application materials. Beginning the application process near the end of the calendar year, from December 1st on, will not allow adequate time for materials review and processing and will require the applicant to suspend services in Demon until the review is satisfactorily completed and a permit is issued. Comainer fees apply to each comainer placed by the permittee within the City limits of Demon, but do not apply to residemial refuse carts. Comainers are defined as any refuse comainmem equipmem, which can be lifted and emptied using a special vehicle designed for that use, i.e. which are not emptied manually. Comainer fees are established at $3.00 for each cubic yard ofcomainer capacity, per comainer, per fiscal year. Comainers will not be placed in a street, alley, or city right-of-way (ROW). If an exception exists, and a comainer is placed in a street, alley, or city ROW, a ROW usage fee will be assessed of $3.00 per cubic yard of comainer capacity per 30 days for as long as the comainer is located in the ROW. All comainers require a comainer permit fee regardless if the comainer is or is not placed on the ground. Fees applicable for waste and recyclables are listed below. A. Special Waste Collection and Transportation Permit 1. Application Fee: $1,000 annually. 2. Service Fee: $1,000 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] B. Medical Waste Collection and Transportation Permit 1. Application Fee: $1,000 annually. 2. Service Fee: $1,000 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] C. Hazardous Waste Collection and Transportation Permit 1. Application Fee: $1,000 annually. 2. Service Fee: $1,000 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] D. Restaurant Oil and Grease Waste Collection and Transportation Permit 1. Application Fee: $500 annually. 2. Service Fee: $100 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] E. Restaurant Oil and Grease Waste Collection and Transportation Permit 1. Application Fee: $500 annually. 2. Service Fee: $100 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] F. Commercial Recycling Materials Collection and Transportation Permit 1. Application Fee: $500 annually. 2. Service Fee: $1,000 per vehicle annually or 4% of Gross Revenue of the market value of recycled materials or of services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] 3. Container Fee of $3.00 per cubic yard / per container annually. G. Residential Recycling Materials Collection and Transportation Permit 1. Application Fee: $500 annually. 2. Service Fee: 4% of Gross Revenue from services provided within the city limits [the 4% shall be paid no less than quarterly.] H. Construction and Demolition (C&D) Collection and Transportation Permit a. Large C&D Operators: 1. Application Fee: $500 annually. 2. Service Fee: $100 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] 3. Container Fee of $3.00 per cubic yard / per container annually. b. Small C&D Operators: Transporters with no more than three vehicles, including trailers, in which each vehicle does not have a Gross Vehicle Weight Rating (GVWR) of more than 14,000 pounds, will be charged: 1. Application Fee: $50 annually. 2. Service Fee: $50 per vehicle annually or 4% of Gross Revenue from services provided within the city limits, whichever is lower [the 4% shall be paid quarterly.] 3. Container Fee of $3.00 per cubic yard / per container annually. I. Municipal Solid Waste (MSW) Collection and Transportation Permit Available only to companies that provide solid waste services in newly annexed areas for specific periods of time, or are contract service providers for the city. 1. Application Fee: $500 annually. 2. Service Fee: 4% of Gross Revenue from services provided within the city limits [the 4% shall be paid no less than quarterly.] SERVICE FEE CAI,CI JI,ATIONS Any fee which requires a calculation of a percentage of revenue, or of materials sales, or of services provided requires that the calculation be provided, with complete financial detail, to the City along with the Service Fee payment to the City. This written financial disclosure shall provide a detailed explanation of how all calculated Service Fees were determined, and shall be provided to the City either quarterly or monthly, at each required Service Fee payment period. INTEREST CHARGES~ I~ATE CHARGES~ AND FEES Permittee's that elect or are required to provide quarterly payments to the City will incur interest and late charges on all quarterly payment amounts not received by the City during the month following the end of the quarter. All quarterly payments are to be received by the City during the months listed: Quarter October - December January - March April - June July- September Payment Received bv City in Month January April July October Payments not received during the month in which they are due will begin incurring interest charges of 11/2 % per month, or the maximum percentage allowed by law, whichever is lower, on the unpaid amounts. Late payment charges and other fees will apply as established by the City's Customer Service Department. Late payments past due beyond sixty (60) days will automatically result in the service provider being issued a "No Operations" declaration. A permittee which has not received approval from the Director of Solid Waste to operate within the city limits of Demon; or has been suspended by the Director of Solid Waste from operating within the city limits of Demon, Texas shall be charged a sum of up to $500.00 by the City, for each violation of this ordinance, if the provider violates the 'No Operations' requiremem prior to approval of a permit, or during any suspension of a permit period. Each day of illegal operations during a 'No Operations' period is considered a separate violation and the service provider is subject to being charged a sum of up to $500.00 for each day of violation. Following the receipt of a 'No Operations' declaration and prior to a service provider being reinstated to legally operate within the City limits of Demon, the service provider must meet with the City staff to update their application and agreemem and make paymem of all monies owed to the City. NO OPERATIONS DECI,AR ATION If a service provider operates a vehicle within Demon's city limits which has not been permitted, or uses a comainer which has not been permitted, or operates any piece of equipmem with an expired permit, or performs some other permit violation, or does not make payment of the appropriate fees in a timely manner, the Director of Solid Waste will issue a "No Operations' declaration to the service provider. Once a service provider has been issued a "No Operations' declaration from the City, all services to be provided within Demon's city limits are required to cease. Operations may resume by the service provider following a meeting with the City staff to update their application and agreemem and ma&e paymem of all monies owed to the City. RECI,ASSIFICATION OF RECYCI,ABI,ES Recyclables comaining five-percem or more comamination, as determined by the Director of Solid Waste or designee, of waste or non-recyclable materials will be considered refuse, and its collection may not be provided by service providers permitted under this ordinance. This material shall be reclassified as refuse and will be collected by the City of Demon. The Director of Solid Waste or his designee, will ma&e the final determination on whether stored recyclables comain excessive comamination, which at the City's determination, may cause the reclassification of these materials to municipal solid waste (MSW), thereby negating the ability of a service provider to transport this material within Demon's city limits under their operating permit as per this ordinance. TERM AND RENEWAL All collection and transportation permits shall be valid for each calendar year, and for not more than one (1) calendar year from the date of issuance. Permittees must make a written application for renewal a minimum of sixty (60) days prior to the permit expiration to prevent a possible lapse in permitted services. The renewal application will update the information provided in the initial application. Applications for renewal shall be processed in the same manner as an initial application. All renewal fees are required to be paid prior to reissuing the permit for the upcoming calendar year. REVOCATION OR NON-RENEWAI, OF PERMITS 19 If the Director of Solid Waste or designee finds any requirement of the permit to have not been met, or violated, or observes service providers operating within Denton's city limits without current permits, he may institute a 'No Operations' declaration, and additionally revoke or not renew the service providers permit, thereby requiring the service provider to cease all operations within the city limits of DeNon. SCHEDULE SWL SANITARY I,ANDFIIJ, SERVICES (Effective 10/1/04) A. MI JNICIPAI, SOIJD WASTE (MSW) DISPOSAI, RATES: 1. RETAIL RATES ao Uncompacted Waste (Load capacity of less than 3 cubic yards) [This waste excludes construction and demolition (C&D) materials.] $33.75 per ton for waste originating within DeMon's city limits $41.00 per ton for waste originating outside of Demon's city limits bo Uncompacted Waste (Load capacity of 3 or more cubic yards) $39.00 per ton for waste originating within DeMon's city limits $41.00 per ton for waste originating outside of Demon's city limits Co Compacted Waste $35.00 per ton for waste originating within DeMon's city limits $37.00 per ton for waste originating outside of Demon's city limits 2. WHOLESALE RATES ao Compacted Waste (Load capacity equal to 25 or more cubic yards) $21.00 per ton for waste originating within DeMon's city limits $23.00 per ton for waste originating outside of Demon's city limits bo Uncompacted Waste (Load capacity equal to 50 or more cubic yards) $21.00 per ton for waste originating within DeMon's city limits $23.00 per ton for waste originating outside of Demon's city limits When the scales are inoperative, or accurate weights cannot be determined, the following rates may be charged based on the gross volume capacity of the vehicle, comainer, or trailer, if no more accurate method is available. Uncompacted Refuse Compacted Refuse $6.00 per cubic yard $8.50 per cubic yard The currem State of Texas landfill surcharge of $1.25 per ton is included in the above disposal rates. Any additional assessmem or fees established by a govemmem emity will 2O be added to the disposal rates and assessed on all waste delivered to the landfill. M1NIMI JM I,ANDFII,I, CHARGE There shall be a $7.50 minimum charge per load for all materials delivered to the landfill. MIXED IDADS Customers bringing mixed loads of municipal solid waste, yard waste, and bulky items to the landfill will be charged the applicable rate, or rates to cover the cost to handle wastes of various types, characteristics, and amoums. Charges for tires not shredded or quartered: 1. Automobile and Pickup tires 2. Commercial and Industrial truck tires 3. Off-road tires with larger than a 24.5" wheel diameter Charge Per Whole Tire $5.00 $7.00 $15.00 YARD WASTE 1. Whole trees and stumps. 2. Clean bagged or un-bagged grass, leaves or brush in less than twelve (12') foot lengths 3. Clean bagged or un-bagged grass, leaves, or brush greater than twelve (12') lengths $48.75 per ton $16.25 per ton $27.00 per ton All comaminated yard waste in this category will be charged a MSW disposal rate. BI JI,KY ITEMS Bulky items may be delivered to the landfill by the customer. Solid waste customers may deliver up to four times per month, and up to 200 pounds of bulky items per delivery, to Demon's landfill at no charge. Loads in excess of 200 pounds will be charged landfill rates. For appliances, which were manufactured to comain PCB's or CFC's, and for which no certified removal documemation is provided, there will be a $50.00 charge per appliance. INERT MATERIAI,S $10.00 per ton Asphalt/Concrete: Inert materials include clean and uncomaminated loads of millings, concrete, asphalt, road-base, or similar materials, which may be recycled. The posted inert materials rate will be charged, or rates to cover the cost to handle various types, characteristics, and amoums of these and other acceptable inert materials. Periodically these materials may be sold to Denton's citizens. Brick/Block: Clean and uncomaminated brick and block will be accepted at the landfill at no 2Z charge. H. SPECIAl, WASTE The acceptance by the landfill of and the disposal of Special Waste is conditional. Acceptance of Special Waste is subject to Federal and State laws and regulations. The City of Denton has the right to refuse to accept or dispose of special waste at its discretion. Charges for the disposal of Special Waste will be established based on the type, characteristics, and amounts of Special Waste, as well as the requirements for disposal of the waste. Such charges shall be established by the Director of Solid Waste. I. 1JNSECI JRED 1 DADS In compliance with State regulations, solid waste loads that are not adequately secured to prevent the material from spilling will be charged an Unsecured Load Charge of $20.00 for each load. J. OTHER CHARGES Other landfill services that are not otherwise listed under this Schedule SWL, may be provided by the City at fees established by the Director of Solid Waste. Such fees shall be established that will recover the operational costs, administrative costs, and any other direct or indirect costs incident to the non-listed landfill services. 22 SEC_IIDSLZ That the Director of Solid Waste of the City of Demon is hereby authorized to deny the use of the City of Demon landfill to any customer who provides false information regarding the origin of, or the composition of the solid waste delivered for disposal to the landfill; or for safety violations committed by a customer within the landfill; or for non-compliance with verbal and written instructions provided to the customer by Solid Waste Department personnel at the landfill; or for nonpaymem of delinquem funds owed by the customer to the City of Demon, Texas; or for any violation of the law committed by the customer within the landfill; or for any non-compliance by the customer with the Texas Commission on Environmemal Quality regulations or policies; or for any non-compliance by the customer with the City of Demon's Code of Ordinances or rules; or for any violation of the written landfill rules by the customer as posted by the Solid Waste Department at the entrances to the landfill, from time to time. SECTION 3. That it is in the public interest that the provisions of Sections 26-3, 26-4, 26-5, 26-7, 26-8(a), and 26-9 of Article I of Chapter 26 of the City of Denton Code of Ordinances shall expressly apply to City of Denton Solid Waste service. SECTION 4. That all ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 5. That if any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or the application thereof to any person or under any circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. ~. That this ordinance shall become effective, charged, and applied to all solid waste services rendered on and after October 1, 2004; provided however, this ordinance shall be charged and applied to those solid waste departmem services described in Schedule SWP (Collection and Transportation Services Permit) rendered on and after January 1, 2005; and a copy of said rates, fees, and charges shall be maimained on file in the Office of the City Secretary. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR 23 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents\Ordinances\04\2004-2005 Solid Waste Rate Ordinance.doc 24 ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR THE SCHEDULE OF MISCELLANEOUS FEES, DEPOSITS, BILLINGS AND PROCEDURES FOR ADMINISTRATIVE SERVICES TO CITY CUSTOMERS AND TAXPAYERS CONTAINED IN ORDINANCE NO. 2003-266; PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the schedule of charges for general utility services as generally provided for in Chapter 26 of the Code of Ordinances; and for services to other City of Demon customers and taxpayers, are hereby established as follows: SERVICE CHARGES AND PROCEDURES SCHEDULES A. ACCOUNT CONNECTION AND RECONNECTION CHARGES PAGE Electric Meter Installation Charge Electric and Water Meter Connection Charge Delinquem Service Charge Unauthorized Usage Penalty 3 3 4 4 Bo METER CHARGES Meter Reading Meter Testing Meter Tampering and/or Damage Charge Meter Inaccessibility Charge 5 5 Co MISCELLANEOUS FEES, CHARGES AND DEPOSITS Returned Payment Charge Service Deposits 7 7 Late Payment Charge Due on Delinquent Balances Interest Charge on Past Due Account Balance Credit Report Charge Interest Earned on Contract Retainage 8 8 9 9 Page 2 ACCOUNT CONNECTION AND RECONNECTION CHARGES (Effective 10/01/04) For the purposes of this rate schedule, business hours shall be defined as Monday through Friday, 8:00 AM to 5:00 PM. ELECTRIC METER INSTALLATION CHARGE APPLICATION Applicable when a customer requests electric service on a first time basis where no permanent service previously existed and where a new account number is established. CHARGE First Service Requested First Service Requested, after business hours $22.00 $35.00 ELECTRIC AND WATER METER CONNECTION CHARGE APPLICATION Applicable when a customer requests service at an address which has existing or previous service, with an existing account number and history, and the electric and/or water meter must be installed or activated for readiness. CHARGE Electric Service Requested Water Service Requested $11.00 $11.00 Electric Service Requested, after Business Hours $25.00 Water Service Requested, after Business Hours $25.00 Page 3 APPLICATION DELINQUENT SERVICE CHARGE (Effective 10/01/04) Applicable when a customer's account is processed for disconnection due to nonpayment. CHARGE Delinquent Service Charge Reconnect Charge, after business hours $22.00 $55.00 UNAUTHORIZED USAGE PENALTY APPLICATION Applicable to any customer that fails occupancy in a new service location. CHARGE Unauthorized Usage Penalty to request connection of services within 24 hours of $30.00 Page 4 METER CHARGES (Effective 10/01/04) METER READING APPLICATION Applicable to any electric or water utility customer who requests a reading of a city meter due to a contested billing more than twice in the previous twelve (12) months, and no error is found. CHARGE Per Additional Reading $25.00 METER TESTING APPLICATION Applicable to any customer who requests the testing of a city meter previously tested within the past four (4) years and the meter is found to be within accuracy standards. CHARGE Per Test ACCURACY STANDARDS $27.00/KWH Electric Meter $38.00/KW/KWH Electric Meter A meter is defined as within accuracy standards when found to be plus or minus two percent (2%) or less. METER TAMPERING AND/OR DAMAGE CHARGE APPLICATION Applicable to any person that tampers with, damages, or illegally connects to a city electric, water, or wastewater utility system. CHARGE Per Event $200.00 minimum per connection per system Page 5 METER INACCESSIBILITY CHARGE APPLICATION Applicable to any customer who prevents the regular and routine reading, maintenance, repair or removal of any city meter due to inaccessibility of the meter. CHARGE Per event $38.00 Page 6 MISCELLANEOUS FEES, CHARGES, AND DEPOSITS (Effective 10/01/04) RETURNED PAYMENT CHARGE APPLICATION Applicable when a customer's or taxpayer's check, or money order, or bank draft for paymem of fees, fines, court costs, taxes, utilities, or other charges has been dishonored by the maker's bank and returned to the City of Demon unpaid. CHARGE Per Check $27.00 SERVICE DEPOSITS APPLICATION Applicable when a residemial customer requests utility service in the City of DeNon service area and does not have twelve (12) momhs of good credit standing with the City of DeNon or another utility system for the type of service requested, or does not have a co-signer with twelve (12) months of good credit standing with the City of Denton, or does not request and demonstrate a passing credit rating through a credit reporting agency. Applicable when a commercial customer does not have twenty-four (24) momhs of good credit standing with the City of DeNon, or a commercial letter of good credit from another utility system. Not applicable when a commercial customer provides an irrevocable letter of credit to the City of DeNon as security for paymem. CHARGE Residemial Customer $150.00 or an amoum equal to 1/6 of the last 12 momhs of billing at the service location. If utility service is disconnected for non- paymem, then the customer will be required to pay a deposit sum up to but not greater than 1/6 of the last 12 momhs of billing at the service location. Commercial Customer $300.00 or an amoum equal to 1/6 of the last 12 momhs of billing at the service location, whichever is greater. If utility service is disconnected for non-paymem, then the customer will be required to pay a deposit Page 7 sum equal to 1/6 of the last 12 months of billing at the service location. Deposits will earn interest for the customer. The applicable rate of interest will be adjusted semi-annually to equal the rate of a one-year United States Treasury Note on October 1 and April 1 of each year. If refund of deposit is made within thirty (30) days of receipt of deposit, no interest payment will be made. If the City retains the deposit more than thirty (30) days, payment of interest, at the current rate, shall be made retroactive to the date the deposit was paid, A. Payment of the interest to the customer shall be made at the time the deposit is returned or credited to the customer's account. B. The deposit shall cease to earn interest on the date it is returned or credited to the customer's account. LATE PAYMENT CHARGE DUE ON DELINQUENT BALANCES APPLICATION To cover a portion of the administrative costs of collecting past due balances, a late payment charge shall be assessed on the fifth business day following the due date. CHARGE $10.00 late payment charge INTEREST CHARGE ON PAST DUE ACCOUNT BALANCE APPLICATION Interest shall be assessed on any past due account balance (excluding late payment charges) that remains unpaid at the time of the current month's billing calculation. The interest provided for and assessed herein shall be due and payable on the due date of the current month's billing statement. CHARGE 1% / month on all past due charges and account balances unpaid at the time of the current month's billing calculation. * * **Under no circumstances shall the interest charge provided for herein exceed the legal rate of interest. To the extent that it does so, the charge is inadvertent, and the City intends only to assess, charge and collect such interest rate that does not exceed the highest lawful rate. Page 8 CREDIT REPORT CHARGE APPLICATION This fee is applicable if the customer (a) cannot provide a satisfactory credit rating through previous service history with Demon Municipal Utilities or another utility service; or (b) cannot provide the city with a qualified co-signer, and (c) provides written authorization for the city to obtain a credit rating from a credit source available to the city. CHARGE Charge per credit report $13.00 INTEREST EARNED ON CONTRACT RETAINAGE Contract retainage will earn interest for the contractor as provided by TEX. REV. CIV. STAT. ANN. Article 6252, Sec.5b (Vernon Supp. 1992). The rate of imerest will be adjusted semi- annually to equal the interest rate of a one year United States Treasury Note on October 1 and April 1 of each year. Payment of the interest shall be made at the time the retainage is paid to the contractor. Page 9 SECTION 2. That all ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 3. 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 Demon, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. That this ordinance shall become effective, charged, and applied to all services occurring on and after October 1, 2003; and a copy of said fees and charges shall be maimained on file in the office of the City Secretary. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents\Ordinances\03\Miscellaneous Rate Charges - Ordinance - 2003.doc Page 10 PUB Minutes for Consent Agenda Items # 4A, B, C, and D CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES August 23, 2004 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, August 23, 2004, at 9:04 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Phil Gallivan, Charldean Newell and Dick Smith EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: George Hopkins ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Consider approval of the Water, Wastewater, Solid Waste and Miscellaneous Rate Ordinances for FY 2004-2005. Howard Martin, ACM/Utilities, presented this item. During the Wastewater budget presentation in June and July, the PUB directed staff to include a 9 percent increase to support the proposed FY 2004-05 budget and FY 2004-08 CIP, and a 6 percent increase the following fiscal year. Staff has included a 9 percent retail rate increase in the Wastewater rate ordinance for the FY 2005, as recommended by the Board. Based on the Black and Veatch Cost of Service Study and Rate Design, staff is recommending various wholesale water rate increases. No base rate increases are proposed for Water retail customers. Staff also proposed various Solid Waste rate changes to residential and recycling customers during budget discussions with the Board. These changes have also been included in the Solid Waste rate ordinance as a decrease of $.45 for residential manual twice per week bagged service and a $.92 increase to residential recycling. Until now, the City has only been charging for the carts and administration of the curbside-recycling program. The increase will help to maintain the existing drop-off centers and oil recycling sites. Board Chair Newell explained to the new members that the City Council plans to appoint a Solid Waste Advisory Committee to evaluate current services and make recommendations for the future. The Board agreed that there should be no fundamental service changes until the committee makes recommendations. Page 1 of 2 The Public Utilities Board encouraged the City Council to appoint members to the Solid Waste Advisory Committee as soon as they have finished working through next year's budget. Smith asked why staff had not discussed the Solid Waste Collections and Transportation Services Permit with the Board. Vance Kemler, Director of Solid Waste, commented that staff very briefly discussed transportation fees with the Board during last year's budget meetings. Kemler explained that, at City Council's request, this particular section of the solid waste ordinance was pulled for further discussion and consequently was not passed with last year's Solid Waste Rate Ordinance. Staff then modified what was presented to the PUB last year, and it was passed by the City Council in February of 2004. Martin explained that this type of fee is what most municipalities use as a revenue structure to approach franchise fee payments. Smith expressed his concern regarding the type of responsibility the Utilities Department has for the streets operation. Martin explained that Jim Coulter, Director of Water Utilities, manages street field operations, which are funded by sales tax and ad valorem property tax revenue. Baines moved to approve the following: FY 2004-05 Water Rate Ordinance FY 2004-05 Wastewater Rate Ordinance FY 2004-05 Solid Waste Rate Ordinance FY 2004-05 Miscellaneous Rate Ordinance Denton Municipal Laboratory Fee Schedule Board Member Bill Cheek seconded the motion, which was approved by a vote of 6-0. Page 2 of 2 ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY OF DENTON, TEXAS SUPPLEMENTING THE SCHEDULE OF RATES CONTAINED IN ORDINANCE NO. 2003-262 FOR ELECTRIC SERVICE BY ADDING THE RESIDENTIAL RENEWABLE ENERGY SERVICE RATE SCHEDULE (SCHEDULE RG); PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION l. That the Schedule of Rates for electrical services as provided for in Chapter 26 of the City of Denton Code of Ordinances, are supplemented to read as follows: ELECTRIC RATE SCHEDULE PAGE RG Residential Renewable Energy Service Rate 2 SEC.TIO. kL2~ That all ordinances or parts of ordinances in force when the provisions of this ordinance became effective which are inconsistent, or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 3_ That if any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. That this ordinance and the rate herein adopted shall become effective, charged, and applied to the electric services rendered by Denton Municipal Electric and all energy usage pertaining to this rate, by customers of Denton Municipal Electric on and after October 1, 2004; and a copy of said rates shall be maintained on file in the office of the City Secretary. PASSED AND APPROVED this the day of ,2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY 2 SCHEDULE RG RESIDENTIAL RENEWABLE ENERGY SERVICE RATE (Effective 10/01/04) A PPI JC A TION Applicable to any customer for single-phase electric service used for residential purposes in an individual private dwelling or an individually-metered apartment, supplied at one point of delivery and measured through one meter. Not applicable to resale service in any event, nor to temporary, standby, or supplementary service. NET MONTNI ~Y R ATE WINTER SLIMMER Billing Months of November through April Billing Months of May through October (1) Facility Charge $7.73/per bill $7.73/per bill (2) (3) Energy Charge per billing period All KWh 4.34C/KWh First 3,000 KWh All Additional KWh Renewable Cost Adjustment Charge Variable, see below 5.61 C/KWh 6.21C/KWh Variable, see below MINIMI TM BY[ J.ING For each billing period, the Customer shall be obligated to pay the minimum, whether or not any energy was actually used: Facility Charge following charges as a ENERG¥ CHARGE Billing for the energy charge shall be based on actual KWh consumption during the billing period. Energy Charge = KWh in rate block x rate per KWh in rate block RF, NIEWAFiI,E COST AD.II ISTMENT (RCA~ CHARGE By choosing the RG rate schedule, Denton Municipal Electric (DME) customers will be supporting cleaner renewable energy sources in the ERCOT power grid. The availability of electricity generated by renewable resources will vary hour-to-hour. We will rely on system power from the grid to serve our customer's minute-by-minute consumption. By utilizing renewable energy credits or attributes from specific facilities, DME will ensure that electricity from renewable resources, equal to your annual electricity usage, is delivered to meet your energy needs. The Renewable Cost Adjustment Charge shall be based on actual KWh consumption during the billing period: RCA Charge = KWh x Renewable Cost Adjustment The Renewable Cost Adjustment shall be computed during the last month of each fiscal year quarter (December, March, June and September) to be applied within the following quarter. The City shall in no case change the Renewable Cost Adjustment more than once in any three (3) month period. The Renewable Cost Adjustment shall be calculated using the following formula: Renewable Cost Adjustment = (Renewable energy credit and/or purchased energy cost shortfall or overage for current quarter + Projected renewable energy credit and/or purchased energy cost for next quarter)/Projected KWh sales for next quarter In the event that actual plus estimated cumulative costs of renewable energy credits and/or purchased energy are greater than or less than the actual and projected renewable energy revenues by $100,000 or more during the next quarter, the Director of Electric Utilities or his/her designate shall recalculate the Renewable Cost Adjustment and, with Public Utilities Board approval, may establish a Renewable Cost Adjustment that collects or returns such difference during the next three month period. Such change in the Renewable Cost Adjustment shall be applied during the next three-month period. TYPE OF SERVICE The City will supply single-phase service at sixty (60) cycles and at any standard voltages available from the City's distribution system through one standard transformation. Where service of the type desired by the Customer is not already available at the point of service, special contract arrangements between the City and the Customer may be required in advance. 4 PAYMENT The due date for the payment of the bill for utility services shall not be less than ten (10) business days after issuance. ,qPECTAT, FACII,ITIES All services requiring special facilities in order to meet customer's service requirements shall be provided subject to the Special Facilities Rider. S:\Our Documents\Ordinances\04X2004 Electric-Residential Renewable Energy Service Rate Ordinance.doc CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES January 12, 2004 After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, January 12, 2004, 2003, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bill Cheek, Yolanda Guzman, George Hopkins, Charldean Newell, Dick Smith and Don White (Board Member John Baines excused himself from the meeting at 11:45 a.m.) EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities ITEMS FOR INDIVIDUAL CONSIDERATION: 11) Consider approval of an ordinance to add a "renewable electric rate schedule" (Schedule RG) to the schedule of rates. White moved to approve the ordinance, with a second from Cheek. The motion was approved unanimously. Charldean Newell, ChairpersZon Lyn~edrick, Secretary Howard Martin, ACM/Utilities PUBMINS 11204 Page 1 of 1 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Library Services Kathy DuBose SUBJECT Consider adoption of an Ordinance amending, repealing, and replacing Ordinance No. 91-039 of the City of Demon, Texas, establishing fees to be charged for overdue books and materials for the libraries of the City of Demon, Texas; repealing all ordinances in conflict herewith; providing a severability clause; and providing for an effective date. BACKGROUND The Library system has not increased the amount charged for extended use fees budgeted in the Emily Fowler Library Fund since March 5, 1991. This fund is used to accoum for revenue generated from library fines assessed from extended use fees of library materials, other related fees, such as reader-primer copies, photocopies, processing, collection, lost or damaged books, duplicate and/or lost library cards fees, and donations. In return, the revenue is used as a cost recovery resource to provide value-added library services and programs for the public. In order to continue these additional services and programs, the FY2004-05 Emily Fowler Library Fund budget is based on an extended use fee increase from a rate of $. 15 per item per day for books, audiocassettes, and compact discs to $.25 per item per day. ESTIMATED SCHEDULE OF PROJECT The extended use fee increase would go imo effect on October 1, 2004. PRIOR ACTION/REVIEW .(Council, Boards, Commissions) The Denton Library Board unanimously approved the extended use fee increase at their July 22, 2004 Special-Called meeting. FISCAL INFORMATION Based on historical data of revenue earned in previous years and the proposed increase, the Emily Fowler Library Fund is budgeted at $145,673 for FY2004-05. EXHIBITS Fees for Other Public Libraries in the North Texas Area. Ordinance Respectfully submitted: Eva Poole Director of Libraries S:\Our Documcms\Ordinanccs\04\library l~cs.doc ORDINANCE NO. AN ORDINANCE AMENDING, REPEALING AND REPLACING ORDINANCE NO. 91-039 OF THE CITY OF DENTON, TEXAS, ESTABLISHING FEES TO BE CHARGED FOR OVERDUE BOOKS AND MATERIALS FOR THE LIBRARIES OF THE CITY OF DENTON, TEXAS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Demon provided in Ordinance 91-039 for the fees to be charged for overdue books and materials for the libraries operated by the City of Demon, Texas; and WHEREAS, the City of Denton should operate a cost-effective and efficient library system; and WHEREAS, the City of DeNon desires to revise and update fees to be charged for overdue books and materials to reflect current costs: and WHEREAS, the City of Denton finds that it is in the public interest to change the fees for the library system; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That Ordinance No. 91-039 enacted by the City Council on March 5, 1991, is hereby amended, repealed and replaced by hereby approving and establishing the following fees for library services as follows: 1. For Extended Use: ao bo co A customer may borrow books, music CDs and audio books, for a three-week period. After that time the customer shall pay an extended use fee of twenty-five ceres ($0.25) a day per item; A customer may borrow videocassettes and CD-ROMs for a three-week period. After that time, the customer shall pay an extended use fee of one dollar ($1.00) per day, per item; A customer may borrow DVDs for a two-week period. After that time, the customer shall pay an extended use fee of one dollar ($1.00) per day per item. 2. For replacement of Lost Cards: The fee for replacemem of cards is two dollars ($2.00) per card. SECTION 2. That a copy of this schedule of fees and charges shall be maimained on file in the office of the City Secretary. S:\Our Documcms\Ordinanccs\04\library l~cs.doc SECTION 3. That all ordinance or parts of ordinance 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 any such conflict. SECTION 4. That if any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, the City Council of the City of Demon, Texas, hereby declares that they would have enacted such remaining portions despite any such invalidity. SECTION 5. That the Ordinance and Fees herein adopted shall be effective and applied on or after October 1, 2004, and a copy of said fees, and charges shall be maimained on file in the Office of the City Secretary. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Parks and Recreation Howard Martin, 349-8232 SUBJECT Consider approval of an ordinance amending Section 22-38 of Chapter 22 (Parks and Recreation) of the Code of Ordinances of the City of Demon, Texas, relating to facility and program fees by adopting a Schedule of Fees; repealing all fees in conflict with such schedule; repealing Ordinance No. 2003-267 and all ordinances in conflict with the new Schedule of Fees; and providing an effective date. BACKGROUND This ordinance makes changes to the schedule of fees for parks and recreation services that are included in the proposed FY 2004-05 budget. Specifically, fees are adjusted as follows: All athletic field fees and adult team registration fees are moved from the Recreation Fund and will now be re-established in the General Fund and will be based on the cost of providing the service, as allowed by ordinance. This change in fee structure will increase General Fund revenue by $45,410 OPTIONS Council options include the approval or denial of the ordinance as submitted. Council may also opt to modify the Schedule of Fees to include additional or modified requiremems. RECOMMENDATION Staff recommends approval of this ordinance and agreemem. ESTIMATED SCHEDULE OF PROJECT If approved, the changes to fees will be effective October 1, 2004. PRIOR ACTION/REVIEW These increases have been previously reviewed as part of the budget review process. FISCAL INFORMATION The increases will generate $45,410 in additional revenue to offset General Fund operating expenses. EXHIBITS 1. Ordinances and Schedule of Fees Respectfully submitted: Janet Simpson Director of Parks and Recreation Prepared by: Amanda Green Business Manager F:\admin\City Council\2003\Fees Approval.doc ORDINANCE NO. AN ORDINANCE AMENDING SECTION 22-38 OF CHAPTER 22 (PARKS AND RECREATION) OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS, RELATING TO FACILITY AND PROGRAM FEES BY ADOPTING A SCHEDULE OF FEES; REPEALING ALL FEES IN CONFLICT WITH SUCH SCHEDULE; REPEALING ORDINANCE NO. 2003-267 AND ALL ORDINANCES IN CONFLICT WITH THE NEW SCHEDULE OF FEES; AND PROV/D1NG AN EFFECTIVE DATE. THE COUNCIL OF THE CITY DENTON HEREBY ORDAINS: SECTION 1.. Sec. 22-28 of the Code of Ordinances of the City of Denton, Texas is amended to read as follows: Sec. 22-28. Facility and program fees. The department of parks and recreation shall charge and collect the fees for the use of buildings and facilities and for recreational programs, services, and merchandise offered by the department in the amounts established in a "Schedule of Fees" adopted from time to time by ordinance of the city council. The director of the department may set, charge and collect fees for classes, trips, equipment, merchandise, police or supervisory services, and other programs, services, events and merchandise provided or offered by the department where no fee is established in the "Schedule of Fees". The fee or charge shall be based on the costs of providing the event, service, equipment or goods. SECTION 2. The "Schedule of Fees" for FY 2004-2005 and until such time as such schedule is amended is set forth in Exhibit "A", which is attached hereto and made a part hereof for all purposes. SECTION 3. Ordinance No. 2003-267 and all ordinances, parts of ordinances, fee schedules or fees 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. Ordinance No. 2003-267 excepted, all ordinances, parts of ordinances, fee schedules or fees not inconsistent or in conflict with the terms or provisions contained in this ordinance shall remain in full force and effect. SECTION 4. The provisions of this ordinance are separable, and the invalidity of any phrase or part of this ordinance shall not affect the validity or effectiveness of the remainder of this ordinance. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. EXHIBIT 1 PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 TYPE Exhibit A PARKS AND RECREATION FEES General Fund Only Effective October 1, 2004 FEE (resident/non-resident) Facility Rentals Full gym ................................................... 60.00/70.00 (per hour) Half gym ................................................... 30.00/35.00 (per hour) Recreation center meeting rooms ......................20.00/25.00 (per hour) Civic Center: · Per hour ................................................ 50.00 · Per day ................................................ 500.00 Senior Center multipurpose room ....................... 17.50/22.50 per quadrant ........................ 70.00/90.00 entire room Athletic fields: · Athletic field (w/o lights) ............................ 12.50 · Athletic field (w/light) ............................... 20.00 Tennis: · Group court rental (w/o lights) ...................... 3.00/4.50 (per hour) · Group court rental (w/lights) ........................ 6.00/9.00 (per hour) Admissions Tennis: · Individual court use fee .............................. 1.75 (1 ½ hrs) during posted hrs. only · Individual season pass ................................ 35.00/40.00 · Family season pass ................................... 75.00/80.00 Youth Sports, Youth Sports Impact Fee ................................. 10.00 per participant/per season Adult Sports · Team registration/season ............................ 130.00/team per Reason Page 1 of 2 TYPE FEE (resident/non-resident) Park Vendor Sales One-day booth permit: · Non-profit vendor .................................... 15.00 · For-profit ............................................... 25.00 Park Shelter Reservations Four-hour reservation: · Small shelter (capacity: 25 persons) o Individual/non-profit ........................ 15.00 o Commercial ................................... 50.00/60.00 · Large shelter (capacity: 50 persons) o Individual/non-profit ........................ 50.00/60.00 o Commercial ................................... 100.00/120.00 Civic Center Garden Reservation * Individual (4 hours) .................................. 25.00/30.00 · Commercial (4 hours) ................................ 50.00/60.00 Civic Center Park Amphitheater Unlighted (1 hour) .................................... 5.00/10.00 Lighted (1 hour) ....................................... 10.00/20.00 Pro~ram Administration Fee .......................... 4.50 (assessed for each registration per individual, and non-resident). Non-resident Program Fee .............................5.00 (assessed for each registration per individual, program/class both resident program/class non-resident Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Central Business District Association of Denton, Texas, dba Denton Main Street Association for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Association is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $12,000 for FY2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE AI. rrI-IO~G THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE ~ BUSINESS DISTRICT ASSOCIATION OF DENTON, TEXAS, d/b/a DENTON MAIN STREET ASSOCIATION FOR THB PA~ AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN BFFBCTIVE DATt~. THE COUNCIL OF THE CITY OF DENTON HERttBY ORDAINS: SECTION 1. That the Mayor is hereby authorized to execute an agreement between the City of Denton and the Central Busineas District Associat/on of Denton, Texas, d/b/a Denton Main Strut Association for the payment and use of hotel tax r~v6nue, under the temis and conditions contained in the agreemmt, a copy of which is attached hereto and made a part hereof. ~. That this ordinance shall b~come effective immediately upon its passage and approval. PASSED AND APPROVED this tho day of ,2004. BULINE BROCK, MAYOR ATTEST: ~ WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: S ~OMr Ek~ummU~ ,~s~ AGREEMENT BETWEEN THE CITY OF DENTON AND THE CENTRAL BUSINESS DISTRICT ASSOCIATION OF DENTON, TEXAS, d/b/a DENTON MAIN STREET ASSOCIATION (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Central Business District Association of Denton, Texas, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEx. T^x CODE {}351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. T^x CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. T^x CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue fi.om the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the maimer specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment mount" shall mean a net mount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attomey and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30tn, and December 31st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an mount of money in each contract year equal to the lesser amount of One and Thirty Three One Hundredths percent (1.33%) of the annual base payment amount or the fixed contract amount of Twelve Thousand Dollars ($12,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.33% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. Main Street HOT Funding CY 2005 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to furore funding of this program beyond the current contract period. Any furore funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the mhnicipality or its vicinity; as authorized by T~x. T~x Corm §351.101(a) (3). Funds for any calendar year which are unused by midnight December 3I~t of that year shall be refunded to CITY within sixty'(60) days. 2.2 Administrative Costs. The hotel tax fimds received from CITY by ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(f), only if they are directly attributabie to work on programs which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within TEX. TAX CODE 351.101 (a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent, for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall prepare and submit to the City Manager of CITY an aimual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. This budget shall specifically identify proposed expenditures of hotel tax funds by ASSOCIATION. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to ASSOCIATION any hotel tax Mare Street HOT Funding CY 2005 - Page 3 revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) ASSOCIATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEx. Tax CODa §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION, shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. . 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION shall furnish to CITY: (1) a compIeted financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEx. TAx CODE §351.101(c), and (3) a copy of ail financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION shall respond promptly to any request fi'om the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager or its designate of CITY reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the Main Street HOT Funding CY 2005 - Page 4 program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ~¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of the THEATRE for or under any contract entered into by the ASSOCIATIION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ~[4.2(a), ASSOCIATION will provide CITY: I) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request fi.om CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a f'mal accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by the THEATRE after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; Main Si~eet HOT Funding CY 2005 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for thc performance of those services described in '~2.1 above. In thc event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. THE THEATRE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE THEATRE OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF Main Street HOT Funding CY 2005 - Page 6 NEGLIGENT OR INTENTIONAL ACTS OF THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY ASSOCIATION City Manager City of Denton 215 E. McKinney Denton, TX 76201 Denton Main Street Association ATTN: Christine Gossett 101 S. Locust, Ste. #500 Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All ten-ns, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto conceming the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement fi-om the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Main Street HOT Funding CY 2005 - Page 7 5.12 Insurance. ASSOCIATION shall provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property Statutory Workers' Compensation and Employers' Liability ($100,0O0/$500,000/$100,000) CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ., 2004. THE CITY OF DENTON, TEXAS By: EUL[NEBROCK,~YOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY APPROVED AS_T-O-L-EGAL-FORM: HERBERT L. PROUTY, J CITY ATTORNE~ CENTRAL ~SINESS DISTRICT ASSOCIATJON/OF DENTON, TEXAS, INC. (Denton 1V~i~eeG~sso//e~ationi By: ,~_~" Chainnan/D~rector ' ATTEST: APPROVED AS TO LEGAL FORM: By: Secretary By: Main Slreet HOT Funding CY 2005 - Page 8 Main Street Association Exhibit A Advertising Brochures Print Advertising Retail Tourism $ 2,500 5,50O 4,000 $12,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of DeNon and the DeNon Black Chamber of Commerce for the paymem and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This comract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependem upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $12,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE FOP. ~ PAYME~ AND USE OF HOTEL TAX P~V~NUE; AND PROViDING AN EFFECTIVE DATE. COUNCIL OF THE CITY OF DEiVrON I-I~REBY ORDAINS: SECTION 1. That the Mayor is hercby authorized to execute au a~reement bctwcen the City of Denton and the Denton Black Chamber of Commerce for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and madc a part hereof. SECTION 2. That this ordinance shall bccome effective immediatcly upon its passage and approval. : PASSED AND APPROVED this thc day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINI/BROCK, MAYOR BY: I APPROVED AS TO LEGAL FORM: I-I~RBERT L. PROUTY, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Black Chamber of Commerce, a legal entity existing under the laws of the State of Texas (the "CHAMBER"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, C1TY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, T~.x. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CHAMBER is well equipped to perform those activities; and WHEREAS, T~x. Tax CODE §351.101(c) authorizes CITY to delegate by contract with CItAMBER, as an independent entity, the management and supervision of' programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CHAMBER agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CHAMBER under this Agreement, CITY agrees to pay to CHAMBER a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CHAMBER, sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax re~/enue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i. e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax l~om taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in Contract quarters will end on March 31st, June 30th, which this Agreement is in force. September 30th, and December 31st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CHAMBER an amount of money in each contract year equal to the lesser amount of One and Thirty Three One Hundredths percent (1.33%) of the annual base payment amount or the fixed contract amount of Twelve Thousand Dollars ($12,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.33% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to CHAMBER of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CHAMBER. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. Black Chamber HOT Funding CY 2005 - Page 2 CHAMBER under this Agreement. CHAMBER shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, T~X. Tax CODE §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. CHAMBER shall maintain any hotel tax funds paid to CHAMBER by CITY in a separate account, or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CHAMBER shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CHAMBER. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CHAMBER shall make such financial records available for inspection and review by the party making the request. CHAMBER understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, ri'Ex. GOV'T CODF., ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CHAMBER shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds, pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., front and back copies of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CHAMBER shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CHAMBER shall give the City Manager or designate of CITY reasonable advance written notice of the time and place of all meetings of CHAMBER's Board of Directors, as weli as any other meeting of any constituency of CHAMBER, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 3 I, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. Black Chamber HOT Funding CY 2005 - Page 4 (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse CHAMBER for any contractual obligations of CHAMBER undertaken by CHAMBER in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CHAMBER or to assume the performance of any contractual obligations of CHAMBER for or under any contract entered into by CHAMBER as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CHAMBER will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by the City; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax fimds on the day of termination. CHAMBER will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by CI-L4aMBER after notification of term/nation is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Terminafion. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CHAMBER; (b) The insolvency of CHAMBER, the ftling of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CHAMBER for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CHAMBER for more than thi.rty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of CHAMBER to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial Black Chamber HOT Funding CY 2005 - Page 5 determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation conceming the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, CHAMBER agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor bc construed to prohibit, the agreement by CHAMBER with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CHAMBER enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CHAMBER shall cause such 0thcr entity, person, or organization to adhere to, conform to, and be subject to ail provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CHAMBER shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CHAMBER shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and CHAMBER shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CHAMBER shall not be considered a partner or joint venturer with CITY, nor shall CHAMBER be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. CHAMBER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CHAMBER OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF CHAMBER, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CHAMBER shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: Black Chamber HOT Funding CY 2005 - Page 6 CITY CHAMBER City Manager City of Denton 215 E. McKinney Denton, TX 76201 Denton Black Chamber of Commerce Elihu Gillespie P.O. Box 51026 Denton, Texas 76206 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CHAMBER and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.1i Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. CHAMBER shall, at a minimum, provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering any event held on City property Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) $500,000 Business Automobile Liability on any owned, non-owned or hired vehicles CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. Black Chamber HOT Funding CY 2005 - Page 7 EXECUTED this day of ,2004. THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY ATTEST: APPROVED AS TO LEGAL FORM: DENTON BJ~ACK CHAMBER APPROVED AS TO LEGAL FORM: OF By: By: Secretary Black Chamber HOT Funding CY 2005 - Page 8 Denton Black Chamber of Commerce Denton Blues Festival and Auto Show Exhibit A Advertising Radio Internet/Website Billboards 6,000 2,000 4,000 $ 12,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of DeNon and the DeNon Chamber of Commerce (Convemion and Visitor Bureau) for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This comract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependem upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $410,283 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations i ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN' AGREEMENT BBTWEEN THE CITY OF DENTON AND THE DI/IN'TON CHAMBER OF COMMERCE (CONVENTION AND VISITOR BUREAU) FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1_. That the Mayor is h~reby authorized to execute an a/reement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitor Bureau) for the paym~t and u~ of hotel tax revenue, under the t~'ms and conditions cont~dn~d in the a~'eement, a copy of which is a~hed ha'~to and made a part hereof. SEC~ON 2. That this ordinancc shall become effective immediately upon its passage and approval. PASSND AND APPROVED this the day of ,2004. EULn~E BROCK, MAYOR ATTEST: /BNNIFBR WALTBRS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION & VISITOR BUREAU) (CY- 2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Chamber of Commerce (Convention & Visitor's Bureau), a non- profit corporation incorporated under the laws of the State of Texas (the "BUREAU"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, BUREAU is well equipped to perform those activities through its Denton Convention and Visitor's Bureau; and WHEREAS, TEX. Tax CODE §351.101(c) authorizes CITY to delegate by contract with BUREAU, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and BUREAU agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.I Consideration. For and in consideration of the activities to be performed by BUREAU under this Agreement, CITY agrees to pay to BUREAU a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CiTY to BUREAU sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of C1TY for which attorneys or agents effect compliance or collection of the hotel tax t~om taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in Contract quarters will end on March 31st, June 30th, which this Agreement is in force. September 30th, and December 31st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to BUREAU an amount of money in each contract year equal to the lesser amount of Forty-Five and Forty-Two One Hundredths percent (45.42%) of the annual base payment amount or the fixed contract amount of Four Hundred Ten Thousand Two Hundred and Eighty-Three Dollars ($410,283). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 45.42% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to BUREAU of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of BUREAU. CVB CY2005 HOT Fund Contract -- Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if C1TY determines that BUREAU's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to BUREAU of the agreed payments of hotel tax funds specified above, BUREAU agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity as authorized by T~x. TAx CODE {}351.101 (a). Funds for any calendar year which are unused by midnight December 3 l~t of that year shall be refunded to CITY within sixty (60) days. 2.2 Administrative Costs. The hotel tax funds received from CITY by BUREAU may be spent for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE {}351.101(0, only if they are directly attributable to work on programs which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) BUREAU agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEx. T^x CODE §351.10I(0 and §351.108 (c) and (d). BUREAU shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ¶~2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional mariner. IIi. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) BUREAU shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of BUREAU in which the hotel tax funds shall be used by BUREAU. This budget shall specifically identify proposed expenditures of hotel tax funds by BUREAU. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to BUREAU any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council author/zing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. CVB CY2005 HOT Fund Contract -- Page 3 (b) BUREAU acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in BUREAU with respect to the hotel tax funds paid by CITY to BUREAU under this Agreement. BUREAU shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. T^x CODE §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. BUREAU shall maintain any hotel tax funds paid to BUREAU by CITY in a separate checking account or with segregated fund accounting, such that any reasonable person can review the revenue source of any given expenditure. 3.3 Financial Records. BUREAU shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by BUREAU. These funds are required to be classified as restricted funds for audited fmancial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, BUREAU shall make such financial records available for inspection and review by the party making the request. BUREAU understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty days after the end of every contract quarter, BUREAU shall fumish to CITY: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial r~ords (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). BUREAU shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. BUREAU shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. BUREAU shall give the City Manager of CITY reasonable advance written notice of the time and place of all meetings of BUREAU's Board of Directors, as well as any other meeting of any constituency of BUREAU at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shah commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligibl6 expenditures or unspent funds shall be forfeited to C1TY upon termination of the Agreement. 4.2 Termination Without Cause. CVB CY2005 HOT Fund Contract -- Page 4 (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse BUREAU for any contractual obligations of BUREAU undertaken by BUREAU in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ~]¶2.I and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse BUREAU or to assume the performance of any contractual obligations of BUREAU for or under any contract entered into by BUREAU as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursUant to ¶4.2(a), BUREAU will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that.have OCCUlTed since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. BUREAU will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by BUREAU after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of BUREAU; (b) The insolvency of BUREAU, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by BUREAU for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or BUREAU for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of BUREAU to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. CVB CY2005 HOT Fund Conlxact -- Page 5 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the fight to terminate this Agreement upon immediate notice to thc other party in the event that any person has instituted litigation concerning the activities of thc non-terminating party, and the terminating party reasonably believes that such activities arc required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ~[~[4.3 or 4.4, BUREAU agrees to refund any and ail unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by BUREAU with another private entity, person, or organization for the performance of those services described in ~2.1 above. In the event that BUREAU enters into any arrangement, contractual or otherwise, with such other entity, person or organization, BUREAU shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and 6onditions of this Agreement and to TEX. TAx CODE ch. 351, including reporting requirements, Separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. BUREAU shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. BUREAU shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and BUREAU shall be solely responsible for the acts and omissions' of its directors, officers, employees, agents, and subcontractors. BUREAU shall not be considered a partner or joint venturer with CITY, nor shall BUREAU be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. BUREAU AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY BUREAU OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF BUREAU, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. BUREAU shall not assign this Agreement without first obtaining the written consent of CITY. CVB CY2005 HOT Fund Contract -- Page 6 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY BUREAU City of Denton 215 E. McKinney Denton, TX 76201 Denton Chamber of Commerce Denton Convention & Visitor Bureau Kim Phillips Vice President P.O. Box Drawer P Denton, Texas 76202-1719 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and BUREAU and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement, This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific, terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. BUREAU shall, at a minimum, provide insurance as follows: $500,000 Commercial General Liability Statutory Workers' Compensation ($100,000/$500,000/$100,000) and Employers' Liability CVB CY2005 HOT Fund Contract -- Page 7 $500,000 Business Automobile Liability on any owned, non-owned or hired vehicles CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this/t~fft~day of //~.A~O~ ,2004. ATTEST: By: JENNIFER WALTERS, CITY SECRETARY ATTEST: By: EULINE BROCK, MAYOR APPRO~VED~A~0 LEGAL FO~d: ~ERT L. PROU~ C~Y ATTO~ Pre~i~dem ~ / ~pROVED AS TO LEG~ FO~: By: Secretary By: CVB CY2005 HOT Fund Contract -- Page 8 Exhibit A Denton Chamber of Commerce Convention and Visitor Bureau Advertising Print Advertising Convention Advertising Tourism Promotion Material Brochures Travel Shows Tourism Services Special Projects "Event" Magazine 37,350 2,500 5,000 10,000 2,500 11,000 2,0OO 80,000 150,350 Administration Administration Salaries Retirement Car Allowance Accounting Salary Payroll Taxes Health Insurance Liability Insurance Travel & Training Computer Equipment Copy Machine Warehouse Storage Destop Copier Lease Office Supplies Telephone Memberships Printing Postage Office Rent $ 106,518 2,800 5,500 5,603 15,000 11,800 800 5,000 6,000 500 700 750 1,500 7,500 2,100 1,000 3,500 14,055 $ 190,626 SPORTS ADVERTISING Convention & Trade Shows SPORTS ADMINISTRATION Sales Manager Salary Car Allowance Health Insurance Payroll Taxes Postage Travel & Training Memberships Printing $ 7,500 $ 44,350 1,800 6,157 3,000 500 4,000 1,000 1,000 $ 61,807 Total Budget $ 410,283 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Aency is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $15,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE AUTHOKIZING THE MAYOR TO EXECUTE AN AGReeMENT BBTWEEN THE CITY OF DBNTON AND THE DENTON COMMUNITY THEATRe, INC. FOR THE PA~ AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SBCTION 1. That the Mayor is hereby authorized to execute an alFeement betw~'n thc City of Denton and the Denton Community Theatre, Inc. for thc payment and use of hotcl tax revenuc, under the terms and conditions contained in the agrccmcnt, a copy of which is attached hereto and made a part hereof. SECTION 2. That this ordinance shall become effective immediately upon its p~sal~e and approval. PASSED AND APPROVED this the day of ..., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRBTARY · BY: APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COMMUNITY THEATRE, INC. (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Community Theatre, Inc., a legal entity incorporated under the laws of the State of Texas (the "THEATRE"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, THEATRE is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with THEATRE, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue fi:om the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and THEATRE agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by THEATRE under this Agreement, CITY agrees to pay to THEATRE a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to THEATRE sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment mount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred dtmng such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31 st of each contract year. Co) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to THEATRE an amount of money in each contract year equal to the lesser amount of One and Sixty-Six One Hundredths percent (1.66%) of the annual base payment amount or the fixed contract amount of Fifteen Thousand Dollars ($15,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.66% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to THEATRE of those amounts specified in ¶1.2, above, as determined.by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not urtreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of THEATRE. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. DCT HOT Funding CY 2005 - Page 2 (c) CITY may withhold further allocations if C1TY determines that THEATRE's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to THEATRE of the agreed payments of hotel tax funds specified above, THEATRE agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. T^x CODE §351.10I (a) (3). Funds for any calendar year which are unused by midnight December 31 st of that year shall be refunded to CITY within sixty (60) days. 2.2 Administrative Costs. The hotel tax funds received from CITY by THEATRE may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(0, only if they are directly attributable to work on programs which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within TEX. TAX CODE 351.101(a). 2.3 Specific Restrictions on Use of Funds.: (a) That portion of total administrative costs of THEATRE for which hotel tax funds may be used shall not exceed that portion of THEATRE's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. HI. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) THEATRE shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of THEATRE in which the hotel tax funds shall be used by THEATRE. This budget shall specifically identify proposed expenditures of hotel tax funds by THEATRE. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to THEATRE any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of fimds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) THEATRE acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in THEATRE with respect to the hotel tax funds paid by CITY to THEATRE under this Agreement. THEATRE shall expend hotel tax funds only in the manner and DCT HOT Funding CY 2005 - Page 3 for the purposes specified in this Agreement, TEx. T^x CODE §351.10t(a) and in the budget as approved by CITY. 3.2 Separate Accounts. THEATRE shall maintain any hotel tax funds paid to THEATRE by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. THEATRE shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by THEATRE. These funds are required to be classified as restricted funds for audited fmancial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. THEATRE understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Pubhc Information Act, Tex. GOV'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, THEATRE shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(C), and (3) a copy of all financial records (e.g., copies of fi:ont and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. THEATRE shall respond promptly to any request fi.om the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. THEATRE shall give the City Manager or its designate of CITY reasonable advance written notice of the time and place of all meetings of THEATRE's Board of Directors, as well as any other meeting of any constituency of THEATRE at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. DCT HOT Funding CY 2005 - Page 4 (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse THEATRE for any contractual obligations of THEATRE undertaken by THEATRE in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse THEATRE or to assume the performance of any contractual obligations of THEATRE for or under any contract entered into by THEATRE as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), THEATRE will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget wilt be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. THEATRE will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds, by THEATRE after notification of termination is conditioned upon such contractual obligations ~having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of THEATRE; (b) The insolvency of THEATRE, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by THEATRE for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or THEATRE for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of THEATRE to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial DCT HOT Funding CY 2005 - Page 5 determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation conceming the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, THEATRE agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by THEATRE with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that THEATRE enters into any arrangement, contractual or otherwise, with such other entity, person or organization, THEATRE shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. THEATRE shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. THEATRE shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organiz, ations performing the same and THEATRE shall be solely responsible for the acts and omissions' of its directors, officers, employees, agents, and subcontractors. THEATRE shall not be considered a partner or joint venturer with C1TY, nor shall THEATRE be considered nor in any manner h61d itself out as an agent or official representative of CITY. 5.3 Indemnification. THEATRE AGREEs TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THEATRE OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. THEATRE shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States ma/l, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: DCT HOT Funding CY 2005 - Page 6 CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 THEATRE Denton Community Theatre, Inc. Scot Wilkinson P.O. Box 193I Denton, Texas 76202-1931 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and THEATRE and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement fi.om the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. ~ 5.12 Insurance. THEATRE shall provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ,2004. DCT HOT Funding CY 2005 - Page 7 THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY ATTEST: APPROVED AS_~TO-EEGA:E F)ORM: ~R~ERT L. V~, CITY A~Y DENT0/~~Y.. 7ATRE' INC' ,.dh~rh~irktor ) APPROVED AS TO LEGAL FORM: By: Secretary By: DCT HOT Funding CY 2005 - Page 8 Denton Community Theatre Exhibit A Advertising Magazines Cable Website Small Print Advertising $ 6,000 4,000 4,000 1,000 $ 15,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Bayless-Selby House and the Courthouse-on-the-Square Museums; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $93,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDmANcs NO. AN ORDINANCE A UTHORIZINGiTHE MAYOR TO EXECUTE AN ~CAL AGREEIVIENT BETWEEN THE cITY OF DENTON AND DENTON COUNTY FOR THE PAYMENT AND USE OF HOTEL TAX REVENUB IN SUPPORT OF TH]3 BAYLP. SS- SELBY HOUSE AND THE COURTHOUSE-ON-THE-SQUARJ~ MUSEUMS; AND PROVIDING AN EFFE~ DATE. WHEREAS, Tex. Tax Code §351.101(a) authorizes the City of Denton, Texas to use revenue from its municipal hotel occ~aucy tax to promote tourism and the convention and hotel industry by edvcrtiefing and conducting solicitation~ and promotional programs to attract touxi~ and convention delegates or registrants to ~e municipality or its vicinity to visit preserved historic sites and museums; and WHEREAS, the County of Denton, Texas is well equipped to perform those aotivities by its operation of the Bayless-Selby House and Courthouse-on-the-Square Museums; and WHEREAS, Tex. Tax Code §351.101(c) authorizes the City of Denton, Texas to delegate by contract with the County of Denton, Texas, as a governmental entity, the management and superv~%n of programs and activities of the ~ype described herehabove funded with revenue from the municipal hotel occupancy tax; and WHEREAS, both the City of Denton, Texas and the County of Denton, Texas have a secondary source of authority to enter into an interlocal cooperation agreement, pttrp~ut to Chapter 791 of the Texas Govemmem Code, as: the agreement is authorized by both governmental bodies; the agreement state~ the puq)ose, terms, rights, and duties of the contracting parties; the consiclcration is being paid by City of Denton, Texas out of current revenues; the compensation is fair, and the services to be performed are '~nuscum services" authorized under §791.003(3)(F) of the Texas Government Code, which each party is authorized to perform individually;, NOW, THE COUNCIL OF THE CITY' OF DENTON. HEREBY ORDAINS: ~. That thc Mayor is he~.by authorized to execute an intcrlocal a~roement between the City of Denton and Denton County for thc payment and use of hotel tax revenue in support of the Bayless-Selby House and Courthouse-On-The Squar~ Musmms, under the terms and conditions contained in the agreem~t, a copy of which is attached hereto and made a part hereof. ~. That this ordinance _shall become effective immediately upon its passage and approval. Page 1 PASSED AND APPROVED this tho 2004. day of ATTEST: JENNII~R WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: Page 2 AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY, TEXAS (COURTHOUSE ON THE SQUARE AND THE BAYLESS-SELBY HOUSE MUSEUMS) (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation ' (the "CITY"), and County of Denton, Texas, a governmental entity existing under the laws of the State of Texas, contracting on behalf of its Courthouse-on-the-Square and the Bayless-Selby House Museums (collectively, the "MUSEUMS"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. T^x CODE §351.101(a) authorizes CITY to use rex;enue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as. well as to engage in historical restoration and preservation projects and activities and advertising and conducting solicitations and promotional programs to encourage tourists and convention delegates to visit preserved historic sites and museums; and WHEREAS, T~x. TAX CODE §351.101(c) authorizes CITY to delegate by contract with MUSEUMS, as a governmental entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; and WHEREAS, MUSEUMS are well equipped to perform those activities; and WHEREAS, both CITY and MUSEUMS have a secondary source of authority to enter into this Agreement as an interlocal cooperation agreement, pursuant to Chapter 791 of the Texas Govemment Code, as: the Agreement is authorized by both governmental bodies; the Agreement states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid by CITY out of current revenues; the compensation is fair; and the serv~.'ces to be performed are "museum services" authorized under §791.003(3)(F) of the Texas Govemment Cdde, which each party is authorized to perform individually; NOW, THEREFORE, in consideration of the performance of the mutual covenants, and promises contained herein, CITY and MUSEUMS agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by MUSEUMS under this Agreement, CITY agrees to pay to MUSEUMS a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to MUSEUMS sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific ' (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or,~ auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which atto,rneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this A~eement is in force. Contract quarters will end on March 31~t, June 30m, September 30 , and December 31 st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to MUSEUMS an amount of money in each contract year equal to the lesser amount of Ten and Thirty One Hundredths percent (10.30%) of the annual base payment amount or the fixed contract amount of Ninety-Three Thousand Dollars ($93,000). This amount will be divided into quarterly payments equal to 25% of the annuaI fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of I0.30% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the'required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to MUSEUMS of those amounts specified in ~1.2, above, as determined by the hotel tax revenue collected. HOT Funds CY 2005 Denton County Museums Page 2 ' (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of MUSEUMS. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that MUSEUMS' expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to MUSEUMS of the agreed payments of hotel tax funds specified above, MUSEUMS agree to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as well as to engage in historical restoration and preservation projects and activities and advertising and conducting solicitations and promotional programs to encourage tourists "and conventk;n delegates to visit preserved historic sites and museums, as authorized by T£X. T^x Cor)~ §351.I01(a)(3) and (a)(5). Funds for any calendar year which are unused by midnight December 31tt of that year shall be refunded to CITY within sixty (60) days. 2.2 Administrative Costs. The hotel tax funds received from CITY by MUSEUMS may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEx. T^x Cor>v. {}351.101(0, only if they are directly attributable to work on programs, which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within Tex. T^x CODe {}35 i.i 01 (a). 2.3 Specific Restrictions on Use of Funds. (a) MUSEUMS agree to demonstrate strict compliance with the reco?d keeping and apportionment limitations imposed by TEX. T^x COD~. {}351.101(0 and {}351.108 (c) and (d). MUSEUMS shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ~1¶2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. HOT Funds CY 2005 Denton County- Museurns Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) MUSEUMS shall prepare and submit to the City Manager of CITY an annual budget ~(see Exhibit "A") as approved by the City Council for each calendar year, for such operations of MUSEUMS in which the hotel tax funds shall be used by MUSEUMS. This budget shall specifically identify proposed expenditures of hotel tax funds by MUSEUMS. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to MUSEUMS any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expe. nditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) MUSEUMS acknowledge that the approval of such budget by the Denton City Council creates a fiduciary duty in MUSEUMS with respect to the hotel tax funds paid by CITY to MUSEUMS under this Agreement. MUSEUMS shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. Trix CODE {}351.10 l(a) and in the budget as approved by CITY. ~ 3.2 Separate Accounts. MUSEUMS shall maintain any hotel tax 'funds paid to MUSEUMS by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. ' 3.3 Financial Records. MUSEUMS shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by MUSEUMS. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, MUSEUMS shall make such financial records available for inspection and review by the party making the request. MUSEUMS understand and accept that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CoDs, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every contract quarter, MUSEUMS shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard' to hotel tax funds pursuant to TEX. T^x CoDe §351.101(c), and (3) a copy of ali financial records (e.g., front and back copies of cleared checks or bank statements, and other relevant documentation), MUSEUMS shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. MUSEUMS shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. HOT Funds CY 2005 Denton County Museums Page 4 3.5 Notice of Meetings. MUSEUMS shall give the City Manager or its designate of CITY reasonable advance written notice of the time and place of all meetings of MUSEUMS' Boards of Directors, as well as any other meeting of any constituency of MUSEUMS at which this Agreement or any matter subject ~to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminates at midnight on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be tennLnated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either~ party pursuant to Section 4.2(a), CITY agrees to reimburse MUSEUMS for any ,contractual obligations of MUSEUMS undertaken by MUSEUMS in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual ol;ligitions having been incurred and entered into in the good faith performance of those services contemplated in ~[~[2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse MUSEUMS or to assume the performance of any contractual obligations of MUSEUMS for or under any contract entered into by MUSEUMS as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ~[4.2(a), MUSEUMS will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. MUSEUMS will be obligated to remm any unused funds or funds determined to be used improperly. Any use of remaining funds by MUSEUMS after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. HOT Funds CY 2005 Denton County Museums Page 5 4.3 Automatic Termination. This occurrence of any of the following events: Agreement shall automatically terminate upon the (a) The termination of the legal existence of MUSEUMS; (b) The insolvency of MUSEUMS, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by MUSEUMS for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or MUSEUMS for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of MUSEUMS to submit a fmancial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, MUSEUMS agree to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 3 0 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by MUSEUMS with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that MUSEUMS enter into any arrangement, contractual or otherwise, with such other entity, person or organization, MUSEUMS shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. T^x CODE ch. 351, including reporting requirements, separate funds maintenance,~',~and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. MUSEUMS shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. MUSEUMS shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and MUSEUMS shall be solely responsible for the acts and omissions of its directors, officers, employees, agents,' and subcontractors. MUSEUMS shall not be considered a partner or joint venturer with CITY, nor shall MUSEUMS be considered nor in any manner hold itself out as an agent or official representative of CITY. HOT Funds CY 2005 Denton County Museums Page 6 5.3 Indemnification. TO THE EXTENT AUTHORIZED BY LAW, MUSEUMS AGREE TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ~ ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY MUSEUMS OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF MUSEUM, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS~ LICENSEES AND INVITEES. 5.4 Assignment. MUSEUMS shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, remm receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY MUSEUMS City Manager City of Denton 215 E. McKinney Denton, TX 76201 Denton County Courthouse-On-The Square and the Bayless-Selby House Museums Georgia Caraway, Director 110 W. Hickory St. Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CiTY and MUSEUMS and their respective successors and assigns. 5.7 Application of Laws. Ali terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding\and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicaie originals. HOT Funds CY 2005 Denton County Museums Page 7 5.'10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of ' competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. MUSEUMS shall provide insurance as fol.lows: 1. Statutory Workers' Compensation and Empioyers' Liability ($lOO,000/$50o,o00/$1o0,ooo) Proof of coverage shall be submitted prior to any payment by CITY. 5.13 Waiver of Immunity for Suit to Enforce. By executing and authorizing the execution of this contract, DENTON COUNTY, TEXAS expressly waives immunity from any suit brought by CITY for the enforcement of the provisions contained herein, and further expressly waives the presentment required of Tex. Loc. Gov't Code sec. 89.004 as a prerequisite to such suit. EXECUTED this __ day of ., 2004. THE CITY OF' DENTON, TEXAS By: EULINEBROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY APP/R~.OVED~S TO LEGAL FORM: HERBER~J~.-'SffROUTY,  ORNEY //~ENTON~~TY, TEXAS / HOT Funds CY 2005 Denton County Museums Page 8 APPROVED AS TO LEGAL FORM: HOT Funds CY 2005 Denton Count: bluseums Page 9 Denton County Museums Courthouse Museum on the Square Balyess-Selby House Exhibit A Advertising Block Ads Brochures Newpapers Magazines $ 1,886 3,000 12,000 8,420 $ 25,306 Historical Archival Supplies Reference Books Preservations Furnishings/Equipment 7,000 5O0 8,024 $ 15,524 Administration Tourism Director- Partial Salary $ 20,000 Curator of Collections - Partial Salary 10,000 Contract Labor 2,000 Office Supplies 960 Balyess-Selby House Museum Manager - Partial Sala~ 19,000 Membership Dues 210 $ 52,170 Total Budget $ 93,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Denton Festival Foundation for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $70,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EX~C'UTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND TH~ DENTON FF. STrVAL FOUNDATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENT°N HEREBY ORDAINS: SECTION I. That the Mayor is hereby authorized to execute an agreement between the City of Denton and the Denton Festival Foundation for the payment and usc of hotel tax revenue, under the tm and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION II. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, C1TY SECRETARY EULINE BROCK, MAYOR BY: ~ APPROVED AS TO LEGAL FORM: HERBERT L. /. AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Festival Foundation, Inc. a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, T~.x. TAx COD~. §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, FOUNDATION is well equipped to perform those activities; and WHEREAS, TEX. T^x CODE §351.101(c) authorizes CITY to delegate by contract with FOUNDATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and FOUNDATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by FOUNDATION under this Agreement, CITY agrees to pay to FOUNDATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to FOUNDATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection per/od" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment mount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attomey and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax fi.om taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30 TM, and December 31st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to FOUNDATION an amount of money in each contract year equal to the lesser amount of Seven and Seventy Five One Hundredths percent (7.75%) of the annual base payment amount or the fixed contract amount of Seventy Thousand Dollars ($70,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CiTY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 7.75% of the base payment mount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to FOUNDATION of those amounts specified in ~1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. Festival Foundation HOT Funding CY2005 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of FOUNDATION. (b) It is expressly understood that tlfis contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that FOUNDATION's expenditures deviate materially from their approved budget. Il. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to FOUNDATION of the agreed payments of hotel tax funds specified above, FOUNDATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as well as the promotion of tourism through the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major arts forms, as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31st of that year shall be refunded to CITY within sixty (60) days. 2.2 Administrative Costs. The hotel tax funds received from CITY by FOUNDATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(0, only if they are directly attributable to work on programs which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within TEX. TAX CODE 351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of FOUNDATION for which hotel tax funds may be used shall not exceed that portion of FOUNDATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Festival Foundation HOT Funding CY2005 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) FOUNDATION shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of FOUNDATION in which the hotel tax funds shall be used by FOUNDATION. This budget shall specifically identify proposed expenditures of hotel tax funds by FOUNDATION. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to FOUNDATION any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) FOUNDATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in FOUNDATION with respect to the hotel tax funds paid by CITY to FOUNDATION under this Agreement. FOUNDATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEx. Tax CODE §351.101(a) and in the budget as approved by CITY. : 3.2 Separate Accounts. FOUNDATION shall maintain any hotel tax funds paid to FOUNDATION by CITY in a separate account, or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. FOUNDATION shall maintain complete and accurate fmancial records of each expenditure of the hotel tax funds made by FOUNDATION. These funds are required to be classified as restricted funds for audited £mancial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. ARer initial receipt of hotel tax funds, and within thirty days after the end of every contract quarter, FOUNDATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEx. T^x COD~. §351.101(c), and (3) a copy of all financial records (e.g., copies of fi.ont and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. FOUNDATION shall respond promptly to any request fi.om the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. Festival Foundation HOT Funding CY2005 - Page 4 3.5 Notice of Meetings. FOUNDATION shall give the City Manager or its dcsignatc of CITY reasonable advance written notice of the time and place of all meetings of FOUNDATION's Board of Directors, as wclI as any other meeting of any constituency of FOUNDATION, at which this Agreement or any matter subjcct to this Agrccmcnt shall bc considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shall eommenee on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures author/zed by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. Co) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse FOUNDATION for any contractual obligations of FOUNDATION undertaken by FOUNDATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse FOUNDATION or to assume the performance of any contractual obligations of FOUNDATION for or under any contract entered into by FOUNDATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), FOUNDATION will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. FOUNDATION will be obligated:to return any unused funds or funds determined to be used improperly. Any use of remaining funds by FOUNDATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and Festival Foundation HOT Funding CY2005 - Page 5 further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of FOUNDATION; (b) The insolvency of FOUNDATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by FOUNDATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or FOUNDATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of FOUNDATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereofi 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, FOUNDATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by FOUNDATION with another private entity, person, or organization for the performance of those services described in ~[2.1 above. In the event that FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, FOUNDATION shall Cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 35I, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. FOUNDATION shall have excluSive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. FOUNDATION shall not be considered a partner or joint Festival Foundation HOT Funding CY2005 - Page 6 venturer with CITY, nor shall FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. FOUNDATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY FOUNDATION OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF FOUNDATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. FOUNDATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY FOUNDATION City Manager City of Denton 215 E. McKinney Denton, TX 76201 Denton Festival Foundation, Inc. Carol Short Festival Coordinator P.O. Box 2104 Denton, Texas 76202-2104 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obhgation of CITY and FOUNDATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. Festival Foundation HOT Funding CY2005 - Page 7 5.10 Headings. Thc headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. FOUNDATION shall provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ,2004. THE C1TY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY ,APPRO~ CITY ATTORNEY DENTON FEST~~OUNDATION, INC. Chainhan/Director Festival Foundation HOT Funding CY2005 - Page 8 ATTEST: APPROVED AS TO LEGAL FORM: By: Secretary By: Festival Foundation HOT Funding CY2005 - Page 9 Denton Festival Foundation, Inc. Arts and Jazz Festival Exhibit A Advertising Brochures Magazines Newspapers Commercials Tabloids $ 6,000 3,000 3,000 7,000 6,000 $ 25,000 Art Musicians Site Operations (Stage, Sound, Electricity) $ 35,000 iO,OO0 $ 45,000 Total Budget. $ 70,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $6,500 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCB NO. ' AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFt/~ DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Mayor is hereby authorized to exeeuic an agreement between the City of Denton and thc Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained/n the agreement, a copy of which is at/ached hereto and made a part hereof. SECTION 2. That this ordinanco shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of _, 2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PRO , AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Holiday Festival Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEX. TAX CODE {}351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipahty or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAx CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by C1TY during fiscal year 2005, less (1) attomey and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers. Attomey and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, th st September 30 , and December 31 of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of Seventy-Two One Hundredths percent (0.72%) of the annual base payment amount, or the fixed contract amount of Six Thousand Five Dollars ($6,500). This amount will be paid in one lump sum on July 1, 2005. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in'~l.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The fimding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially fi.om their approved budget. Holiday FestivaI HOT:Funding CY 2005 - Page 2 Ii. USE OF HOTEL TAX REVENUE 2.1 Use of Funds, For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the mtmicipality or its vicinity; as authorized by TEX. TAX CODE §351.10I(a). Funds for any calendar year which are unused by midnight December 31st of that year shall be refunded to CITY within sixty (60) days. 2.2 Administrative Costs. The hotel tax fimds received from CITY by ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(0, and only if they are directly attributable to work on programs which promote tourism and the hotel and convention industry, and which also promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE 351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. IH. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of ASSOCIATION in which the hotel tax fimds shall be used by ASSOCIATION. This budget shall specifically identify proposed expenditures of hotel tax funds by ASSOCIATION. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. C1TY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of tl'fis Agreement as stated in paragraph 4.2. (b) ASSOCIATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds Holiday Festival HOT Funding CY 2005 - Page 3 only in the manner and for the purposes specified in this Agreement, TEX. TAx CODE §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 FinanciaI Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to Tax. T^x CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager or its designate of CITY reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. Holiday Festival HOT Funding CY 2005 - Page 4 (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION for or under any contract entered into by ASSOCIATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days aRer receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION wilt be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either C1TY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a £mancial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereofi 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial Holiday Festival HOT Funding CY 2005 - Page 5 determination, either party shall have the right t° terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation conceming the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAx COD~ ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to alt services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: Holiday Festival HOT Funding CY 2005 - Page 6 CITY ASSOCIATION City Manager City of Denton 215 E. McKinney Denton, TX 76201 Bob Moses Denton Holiday Festival Foundation, Inc. P.O. Box 2765 Denton, Texas 76202-2765 5.6 Inurement. This Agreement and each provision hereof, and each and every fight, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto conceming the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The tefins and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. EXECUTED this __ day of ,2004. THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: APPROVED AS TO LEGAL FORM: Holiday Festival HOT Funding CY 2005 - Page 7 By: JENNIFER WALTERS, CITY SECRETARY / / / Chairinan/Director ATTEST: APPROVED AS TO LEGAL FORM: By: Secretary By: Holiday Festival HOT Funding CY 2005 - Page 8 Denton Holiday Festival Association, Inc. Holiday Lighting on the Square Exhibit A Advertising Newspapers CVB Coops $ 4,500 2,000 $ 6,500 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the Greater Denton Arts Council for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $108,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGRF, E~ BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That thc Mayor is hereby authorized to execute an agreement between the City of Deuton and the C,'reat~r Denton Arts Council for the payment and uso of hotel tax revenue, under the terms and cond/tions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. That this ordinance shall bec, omo effective immediately upon/ts passage and approval. PASSED AND APPROVED this the day of . ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY BULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Greater Denton Arts Council, a non-profit corporation incorporated under the laws of the State of Texas (the "GDAC"): WHEREAS, TEx. T^x CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the city of Denton of seven percent (7%); and WHEREAS, TEx. T^x CODe §351.101(a) authorizes CiTY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, GDAC is well equipped to perform those activities; and WHEREAS, Tnx. T^X COD~ §351.101 (c) authorizes CITY to delegate by contract with GDAC; as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and GDAC agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by GDAC under this Agreement, CITY agrees to pay to GDAC a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to GDAC sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. ~ (a) As used in this Agreement, t,he following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. GDAC CY2005 HOT Funds Contract - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attomey and auditing costs include fees paid to attorneys or agents not in the regular empIoy of C1TY for which attorneys or agents effect comphance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31st of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to GDAC an amount of money in each contract year equal to the lesser amount of Eleven and Ninety-Six One Hundredths percent (11.96%) of the annual base payment amount or the fixed contract amount of One Hundred Eight Thousand Dollars ($108,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 11.96% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. , (a) The term "quarterly payments" shall mean payments by CITY to GDAC of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) tmtil the appropriate reports are received and approved, which approval shall not unreasonably be withheld. GDAC CY2005 HOT Funds Contract - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period.: Any future funding is solely the responsibility of GDAC. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that GDAC's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to GDAC of the agreed payments of hotel tax funds specified above, GDAC agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; by the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms and the acquisition of sites for and the construction, improvement, enlarging, equiPping, repairing, operation, and maintenance of convention center facilities or visitor information center, or both as authorized by TEX. TAx CODE §351.101 Funds for any calendar year which are unused by midnight December 31 ~t of that year shall be refunded to C1TY within sixty (60) days. 2.2 Administrative Costs. The hotel tax funds received from CITY by GDAC may be spent for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. T^X CODe §351.101(f), only if they are directly attributable to work on- programs which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within TEX. T^x COr)E §351.101(a). ~ 2.3 Specific Restrictions on Use of Funds.' (a) GDAC agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. T^x CODE §351.101 (f) and §351.108 (c) and (d). GDAC shall not utilize hotel tax funds for any expenditure, which has not been specifically documented to satisfy the purpoSes set forth in ¶¶2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. GDAC CY2005 HOT Funds Contract - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) GDAC shall prepare and submit to the City Manager of CITY an annual budget (sec Exhibit "A") as approved by the City Council for each calendar year, for such operations of GDAC in which the hotel tax funds shall be used by GDAC. This budget shall specifically identify proposed expenditures of hotel tax funds by GDAC. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to GDAC any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) GDAC acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in GDAC With respect to the hotel tax funds paid by CITY to GDAC under this Agreement. GDAC shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. GDAC shall maintain any hotel tax funds paid to GDAC by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. GDAC shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by GDAC. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. GDAC understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3,4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every contract quarter, GDAC shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. T^X CODE {}351.101 (c), and (3) a copy of all financial records (e.g., copies of fi.ont and back cleared checks or bank statements, and other relevant documentation). GDAC shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. GDAC shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. GDAC CY2005 HOT Funds Contract - Page 4 3.5 Notice of Meetings. GDAC shall give the City Manager of CITY reasonable advance written notice of the time and place of all meetings of GDAC's Board of Directors, as well as any other meeting of any constituency of GDAC at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM A_LND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse GDAC for any contractual obligations of GDAC undertaken by GDAC in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse GDAC or to assume the performance of any contractual obligations of GDAC for or under any contract entered into by GDAC as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), GDAC will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by cITy; 3) Within 5 business days of a request from CITY, a listing of expenditures that hhve occurred since the last required reporting period; 4) a final accounting of ali expenditures and tax funds on the day of termination. GDAC will be obligated to return any unus. ed funds or funds determined to be used improperly. Any use of remaining funds by GDAC after notification of termination is GDAC CY2005 HOT Funds Contract - Page 5 conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4,3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of GDAC; (b) The insolvency of GDAC, the filing ora petition in bankruptcy, either voluntarily or involuntarily, or an assignment by GDAC for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or GDAC for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of GDAC to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably beIieves that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, GDAC agrees to refund any and all unused funds, or funds determined by CiTY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by GDAC with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that GDAC enters into any arrangement, contractual or otherwise, with such other entity, person or organization, GDAC shall Cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 35 I, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. GDAC shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. GDAC shall have exclusive control of its operations and performance GDAC CY2005 HOT Funds Contract - Page 6 of services hereunder, and such persons, entities, or organizations performing the same and GDAC shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. GDAC shall not be considered a partner or joint venturer with CITY, nor shall GDAC be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. GDAC AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, iTS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY GDAC OR THOSE SERViCES CONTEMPLATED BY THIS AGREEMENT, iNCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF GDAC, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. GDAC shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified maii, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY GDAC City of Denton 215 E. McKinney Denton, TX 76201 Greater Denton Arts Council Herbert Holl Executive Director 207 South Bell Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and GDAC and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, GDAC CY2005 HOT Funds Contract - Page 7 relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. GDAC shall, at a minimum, provide insurance as follows: $500,000 Commercial General Liability Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) $500,000 Business Automobile Liability on any owned, non-owned or hired vehicles CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ,2004. THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: APPROVED AS TO LEGAL FORM: By: JENNIFER WALTERS, HERB~Y, GDAC CY2005 HOT Funds Contrac[~.Page 8 CITY SECRETARY ATTEST: Secretary CITY ATTORNEY GREATER DENTON ARTS COUNCIL APPROVED AS TO LEGAL FORM: -By: GDAC CY2005 HOT Funds Contract - Page 9 Greater Denton Arts Council Exhibit A Advertising Direct Promotion Website Salary Convention Center Salary Support $ 6,000 10,000 $16,000 $15,000 Art Exhibitions & Programs Administration Salary Exhibition & Program Salary Office Supplies $10,000 30,000 30,000 7,000 $ 77,000 Total Budget $108,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of DeNon and the Historical Park Foundation of DeNon County, Inc. for the paymem and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This comract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependem upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $20,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE AUTHORIZING TH~ MAYOR TO BXECU'I~ AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE HISTORICAL PARK FOUNDATION OF DENTON COUNTY, INC. FOR THR PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFE~IVE DATE. COUNCIL OF TI-IR crI'Y OF DENTON I-IF_22,BY ORDAINS: ~. That the Mayor is hereby authorized to execute an al/l'eem~at between the City of Denton and the Historical Park Foundation of Denton County, Inc. for the payment and u~c of hotel tax revenuc, under the term~ and conditions contained in the a/reement, a copy of which is attached hereto and made a part hereof. ~. That tiffs ordinance shall become effective immediatoly upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: )~ENNIFF. R WALTERS, CITY SECRBTARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND HISTORICAL PARK FOUNDATION OF DENTON COUNTY, INC. (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THiS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Historical Park Foundation, Inc., a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION"): WHERF~S, TEX. Tax CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. Tax CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convemion and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its .vicinity; as well as to engage in kistorical restoration and preservation projects and activities and WHEREAS, FOUNDATION is well equipped to perform those activities; and WHEREAS, TEX. Tax COnE §351.101(c) authorizes CITY to delegate by contract with FOUNDATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, m consideration of the performance of the mutual covenants and promises contained herein, CITY and FOUNDATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1,1 Consideration. For and in consideration of the activities to be performed by FOUNDATION under this Agreement, CITY agrees to pay to FOUNDATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to FOUNDATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment mount" shall mean a net mount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this A~eement is in for~ Contract quarters will end on March 31~t, June 30'h, September 30 , and December 31 of each contract year. Co) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to FOUNDATION an amount of money in each contract year equal to Twenty Thousand Dollars ($20,000). This amount will be paid in one lump sum on February 1, 2005. 1.3 Dates of Paymenls. (a) The term "quarterly payments" shall mean payments by CITY to FOUNDATION of those amounts specified in ¶1,2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received w/thin thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of FOUNDATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that FOUNDATION's expenditures der/ate materially from their approved budget. H. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to MUSEUMS of the agreed payments of hotel tax funds specified above, MUSEUMS agree to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, and-or to engage in historical restoration and preservation projects and activities to encourage tourists and convention delegates to visit preserved historic sites and museums, as authorized by TEx. TAX COOE §351.101(aX3) and (a)(5). Funds for any calendar year which are unused by midnight Decem~ 31~ of that year shall be refunded to CITY within sixty (60) days. 2,2 Administrative Costs. The hotel tax funds received from CITY by FOUNDATION may be spent for day-to<lay operations, office supplies, salaries, travel ex-perish, and other administrative costs allowed by TEX. TAX CODE 351.101(f), only if they are directly attributable to work on programs which promote tourism and the hotel and convention industry, and which also promote at least one of the six statutory purposes enumerated within TEX. TAX CODE 351,101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of FOUNDATION for which hotel tax funds may be used shall not exceed that portion of FOUNDATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion oflocat tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Ill. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) FOUNDATION shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of FOUNDATION in which the hotel tax funds shall be used by FOUNDATION. This budget shall specifically identify proposed expenditures of hotel tax funds by FOUNDATION. In other words, CITY should be able to aud/t specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to the FOUNDATION any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for tei-minat/on of th/s Agreement as stated in paragraph 4.2. (b) FOUNDATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in FOUNDATION with respect to the hotel tax funds paid by CITY to FOUNDATiON under this Agreement. FOUNDATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEx. Tax Coov. §351.101(a) and in the budget as approved by CITY. 3.2 Separate Aecounts. FOUNDATION shall maintain any hotel tax funds paid to FOUNDATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records, FOUNDATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by FOUNDATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party maldng the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject m the Public Information Act, TEX. GOV'T COD~., ch. 552, as hereafter mended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all tids have been expended and reported to CITY, FOUNDATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE {}351.101(C), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. FOUNDATION shall respond promptly to any request from the City Manager of C1TY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. FOUNDATION shall give the City Manager or its designate of CITY reasonable advance written notice of the time and place of ali meetings of FOUNDATION's Board of Directors, as well as any other meeting of any constituency of FOUNDATION at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midn/ght on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 3 I, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without muse, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse FOUNDATION for any contractual obligations of FOIJNDATION undertaken by FOUNDATION in satisfactory performance of those activities specified in ~2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3. l. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse FOUNDATION or to assume the performance of any contractual obligations of the FOUNDATION for or under any contract entered into by FOUNDATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), FOUNDATION will provide CITY: 1) With/n 10 business days from the termination notification, a short-term budget of probable expenditures for the rema/ning 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) W/thin 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. FOUNDATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by FOUNDATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of FOUNDATION; (b) The insolvency of FOUNDATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by FOUNDATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or FOUNDATION for more than thirty (30) days afire' written notice of such breach is given to the breaching party by the other party; or (d) The fa/lure of FOUNDATION to submit a fmancial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginrdng of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the hght to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ~4.3 or 4.4, FOUNDATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after term/nation of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by FOUNDATION with another private entity, person, or organization for the performance of those services described in ~2.1 above. In the event that FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, FOUNDATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to T~x. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. FOUNDATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. FOUNDATION shall not be considered a parmer or joint venturer with CITY, nor shall FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. THE FOUNDATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND Al,l, CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY TI~, FOUNDATION OR THOSE SERVICES CONTEMPLATED BY Tiqlg AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON A! I,F, GATIONS OF NEGLiGENT OR INTENTIONAL ACTS OF FOUNDATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. FOUNDATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreemem or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-del/very, addressed to the respective parties as follows: CITY FOUNDATION City Manager Inc Historical Park Foundation of Denton County, City of Denton 215 E. McKinney Denton, TX 76201 Rod Reeves 1 I0 W. Hickory Street Denton, Texas 76201 $.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and FOUNDATION and their respective successors and assigns. $.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. $.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. $.9 Duplicate Originals, This Agreement is executed in duplicate originals. $.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. FOUNDATION shall provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ,2004. THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY APPROVED AS-TO-LE'GA~FORM: HERB~'ER.T L. PROglJ~(, CITY ATT/~_' Historical P~flf Foundation of Denton County, Inc. ~ Chairman/Director ATTEST: APPROVED AS TO LEGAL FORM: By: Secretary By: Historical Park Foundation CY2005 HOT Funding - Page 8 Historical Park Foundation of Denton County Denton County African American Museum Exhibit A Historical Restoration of Building $ 20,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependent upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $60,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCI~ NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION FOR ~ PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: ~BCTION 1. That the Mayor is hereby authorized to execute an agreement between the City of D~nton and the North Texas State Fair Association for the payment and u~e of hotel tax revenue, under the terms a~d conditions contained in the agreement, a copy of which is attached h~'reto and made a part hereof. SECTION 2.. That this ordinance ~all become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY. EULINEBROC~MAYOR BY: APPROVED AS TO LEGAL FORM: _HF_.,RBERT i AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION (CY2005) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the North Texas State Fair Association, a non-profit corporation incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEx. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAx CODE §351.101(C) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION .~ometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax North Texas State Fair CY2005 HOT Funds - Pagel Code {}351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31 ~t of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser mount of Six and Sixty Four One Hundredths percent (6.64%) of the annual base payment amount, or the fixed contract amount of Sixty Thousand Dollars ($60,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.64% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mcan payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not unreasonably be withheld. North Texas State Fair CY2005 HOT Funds - Page2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits C1TY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold fiffther allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEx. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31st of that year shall be refunded to CITY within sixty (60) days. 2.2 Specific Restrictions on Use of Funds. (a) ASSOCIATION agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by T~.x. Tax Corm §351.101(0 and {}351.108 (c) and (d). ASSOCIATION shall not utilize hotel tax funds for any expenditure, which has not been specifically documented to satisfy the purposes set forth in ¶¶2.1 and 2.2 above. Co) Hotel tax fimds may not be spent for travel for a person to attend an event or conduct an activity the primary propose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND' REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. This budget shall specifically identify proposed expenditures of hotel tax funds by ASSOCIATION. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has North Texas State Fair CY2005 HOT Funds - Page3 been approved in writing by the Denton City Council authorizing the expenditure of funds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) ASSOCIATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. T^x CODE §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax fund, and within thirty days after the end of every contract quarter, ASSOCIATION shall fiaxdsh to CITY: (1) a completed financial report, (2) a hst of the expenditures or copies of invoices or receipts made with regard to hotel tax funds pursuant to TEX. T^X Corm §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). ASSOCIATION shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. ASSOCIATION shall respond promptly to any request from me City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY reasonable advance written notice of i the time and place of all meetings of ASSOCIATION's Board of Directors, as Well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. ' However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, North Texas State Fair CY2005 HOT Funds - Page4 which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ~]¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in '~3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ~¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION for or under any contract entered into by ASSOCIATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ~14.2(a), ASSOCIATION will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remgining 60 day period between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within I0 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of ail expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; North Texas State Fair CY2005 HOT Funds - Page5 (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assi ~gnment by ASSOCIATION for the benefit of creditors; (c) The continuation ora breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which compiles with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any .other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶~[4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ~[2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to ali provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the:agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performe:d under ttfis Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered nor in any manner hold itself out as an agent or official representative of CITY. North Texas State Fair CY2005 HOT Funds - Page6 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY ASSOCIATION City of Denton 215 E. McKinney Denton, TX 76201 North Texas State Fair Association Ken Burdick Executive Director P.O. Box 1695 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of C1TY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions oF any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. North Texas State Fair CY2005 HOT Funds - Page7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall, at a minimum, provide insurance as follows: $500,000 Commercial General Liability Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,o00) $500,000 Business Automobile Liability on any owned, non-owned or hired vehicles CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ,2004. THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY APPROVED_~AS -TO-EEO~: CITY A TO7 NORTH TEXA)S'STATE FAIR ASSOC/IAT~/ / By: ...... / / North Texas State Fair CY2005 HOT Funds - Page8 ATTEST: APPROVED AS TO LEGAL FORM: By: Secretary By: North Texas State Fair CY2005 HOT Funds - Page9 Exhibit A North Texas State Fair Association, Inc. North Texas State Fair and Rodeo Advertising Internet Radio Newspapers/Magazines 7,200 30,000 22,800 $ 60,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Tax Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to execute an Agreement between the City of Demon and the Tejas Storytelling Association, Inc. for the paymem and use of hotel tax revenue; and providing an effective date. BACKGROUND This Agency is recommended to receive funding from the Hotel Occupancy Tax funds. This comract is for a one-year term beginning January 1, 2005 through midnight December 31, 2005. Allocations are dependem upon requests for funding as well as, availability of revenues. PRIOR ACTION/REVIEW The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to Council during the Council Work Session on August 5, 2004. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this Agency is $41,000 for FY 2004-05 and has been included in the Annual Program of Services. EXHIBITS Ordinance Contract Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations 0KDINANCE NO. AN ORDINANCB AUTHORIZING THE MAYOR TO F_3qECUTE AN AGKEEMBNT BETWEEN THE CITY OF DENTON AND THE THJAS STORYTELLING ASSOCIATION, INC. FOR TKE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE ClTY OF DENTON HEREBY ORDAINS: SEC~ON 1. That the Mayor is hereby authorized to execute an a~'e~ment between the City of Denton and the Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue, under the terms and cond/tions contained in the agreement, a copy of wh/ch is attached he/eR) and made a part hereof. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. A'ITEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: ~ERT L. PROUTY, CITY ATTORNBY AGREEMENT BETWEEN THE CITY OF DENTON AND TEJAS STORYTELLING ASSOCIATION, INC. (CY2005), PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Tejas Storytelling Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEX. TAX CODE {}351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. T^x CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. T^x CODe {}351.101(c) authorizes C1TY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, C1TY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) meanings: As used in this Agreement, the following terms shall have the following specific (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. Attomey and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers; and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31st of each contract year. (b) In retum for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of Four and Fifty Four One Hundredths percent (4.54%) of the annual base payment amount or the fixed contract amount of Forty One Thousand Dollars ($41,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 4.54% of the base payment amount, whichever is less. Each quarterly payment is subject to receipt of unused funds from the prior contract period and the receipt of the required quarterly reports. 1.3 Dates of Payments to ASSOCIATION. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ~1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If the quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. C1TY may withhold the quarterly payment(s) until the appropriate reports are received and approved, Which approval shall not unreasonably be withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. Tejas HOT Funding CY 2005 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) C1TY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. H. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as well as the encouragement, promotion, improvement, and application of the arts including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craf~ arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms as authorized by Tax. T^x CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31st of that year shall be refunded to CITY within sixty (60) days. 2.2 Administrative Costs. The hotel tax funds received from CITY by ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(f), only if they are directly attributable to work on programs, which promote tourism and the hotel and convention industry, which also promote at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101 (a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ~[2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. HI. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for such operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. This budget shall specifically identify proposed expenditures of hotel tax funds by ASSOCIATION. In other words, CITY should be able to audit specifically where the funds in the separate account relating to hotel tax funds will be expended. CITY shall not pay to ASSOCIATION any hotel tax Tejas HOT Funding CY 2005 - Page 3 revenues as set forth in Section I of this contract during any fiscal year of this Agreement unless a budget for such respective fiscal year has been approved in writing by the Denton City Council authorizing the expenditure of fixnds. Failure to submit an annual budget may be considered a breach of contract, and if not remedied is considered grounds for termination of this Agreement as stated in paragraph 4.2. (b) ASSOCIATION acknowledges that the approval of such budget by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax fimds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, T~.x. Tax CODE §351.101(a) and in the budget as approved by CITY. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax .funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney's fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. ~ 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty days after the end of every contract quarter, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEx. TAx CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of firont and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate .ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. : 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager or its designate of CITY reasonable advance written notice of the time and place of ail meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2005 and terminate at midnight on January 31, 2006. However, the program period shall commence on January 1, 2005 and terminate at midnight on December 31, 2005. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the Tejas HOT Funding CY 2005 - Page 4 program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in '113.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION for or under any contract entered into by ASSOCIATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) Within 10 business days from the termination notification, a short-term budget of probable expenditures for the remaining 60 day periqd between termination notification and contract termination. This budget will be presented to Council for approval within 10 business days after receipt by CITY. If formal approval is not given within 10 business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) Within 30 days, a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; Tejas HOT Funding CY 2005 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by Section 1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non-terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ~¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within 30 days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and ASSOCIATION shall be solely responsible fc~r the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF Tejas HOT Funding CY 2005 - Page 6 NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shaI1 be effective when given in writing and deposited in the United States mail, certified mail, remm receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY ASSOCIATION City Manager City of Denton 215 E. McKinney Denton, TX 76201 Tejas Storytelling Association, Inc. Karen Morgan P.O. Box 2806 Denton, Texas 76202-2806 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state Iaws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations .relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Tejas HOT Funding CY 2005 - Page 7 5.12 Insurance. ASSOCIATION shall provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, coveting ail events taking place on City-owned property Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this __ day of ., 2004 THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY ATTEST: APPROVED AS TO LEGfi~L-FORM.'~-~ By:-~ ~ / ,~l~T L. PRO(~, CITY ATrO~ TEJ^S STO 3¥ZELLr G By: ASSOCIATION, APPROVED AS TO LEGAL FORM: By: Secretary By: Tejas HOT Funding CY 2005 - Page 8 Tejas Storytelling Association, Inc. Tejas Storytelling Festival Exhibit A Advertising Newspapers/Magazines Marketing and Promotion Direct Mail Video / Still Photography Website Radio $10,000 3,500 8,000 70O 800 10,000 $ 33,000 Art Performers Site Operations $ 5,000 3,000 $ 8,000 Total Budget $ 41,000 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Management and Budget Kathy DuBose SUBJECT Consider adoption of an Ordinance adopting the Budget and first year of the Capital Improvemem Plan of the City of Demon, Texas for the fiscal year beginning on October 1, 2004, and ending on September 30, 2005; and declaring an effective date. BACKGROUND Please find attached an Ordinance to adopt the 2004-05 Budget as directed by City Council. The City Council received the 2004-05 Proposed Budget on July 30, 2004. Budget workshops were held on August 5, and August 16, 2004. Finally, the Public Hearing on the 2004-05 Proposed Budget was conducted on September 7, 2004. The tax rate used to balance the General Fund budget is $.59815 per $100 valuation. FISCAL INFORMATION The total 2004-05 budget is listed below: General Fund Electric Fund Water Fund Wastewater Fund Solid Waste Fund Technology Services Fund Materials Management Fund Motor Pool Fund Fleet Services Fund Aquatics Fund Recreation Fund Tourist & Convention Fund Emily Fowler Library Fund Police Confiscation Fund General Debt Service Fund $ 69,505,208 171,356,410 37,100,894 22,448,064 14,121,117 6,934,378 8,293,911 4,092,404 4,143,141 1,967,301 1,244,689 933,349 145,673 152,500 10,436,532 $352,875,571 Respectfully submitted: Kathy DuBose Assistam City Manager S:\Our Documents\Ordinances\04XBudgct 2004-05 Ordinance. doc ORDINANCE NO. AN ORDINANCE ADOPTING THE BUDGET AND THE FIRST YEAR OF THE CAPITAL IMPROVEMENT PLAN OF THE CITY OF DENTON, TEXAS, FOR THE FISCAL YEAR BEGINNING ON OCTOBER 1, 2004, AND ENDING ON SEPTEMBER 30, 2005; AND DECLARING AN EFFECTIVE DATE. WHEREAS, notice of a public heating on the budget for the City of Denton, Texas, for the fiscal year 2004-2005 was heretofore published at least ten days in advance of said public hearing; and WHEREAS, a public heating on the said budget was duly held on September 7, 2004, and all interested persons were given an oppomafity to be heard for or against any item thereof; NOW, THEREFORE, WHEREAS, on 28th day of June the Public Utilities Board recommended the utility operations budgets and capital improvements to be constructed during the coming year, and WHEREAS, the City Manager has fumished a copy of the Planning and Zoning Commission's recommended general obligation bond capital improvements to each member of the City Council more than sixty days prior to the beginning of the budget year, as provided by Section 10.03(6) of the City Charter; NOW, THEREFORE, THE COUNCIl. OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The budget for the City of Denton, Texas for the fiscal year beginning on October 1, 2004, and ending on September 30, 2005 prepared by the City Manager and filed with the City Secretary, as amended by the City Council, is hereby approved and adopted, a copy of which budget is attached hereto and incorporated by reference herein. SECTION 3. The City Council hereby appropriates fi.om available resources to the following funds: General Fund Electric Fund Water Fund Wastewater Fund Solid Waste Fund Technology Services Fund Materials Management Fund Motor Pool Fund Fleet Services Fund Aquatics Fund Recreation Fund Tourist & Convention Fund $69,5O5,208 171,356,410 37,100,894 22,448,064 14,121,117 6,934,378 8,293,911 4,092,404 4,143,141 1,967,301 1,244,689 933,349 Emily Fowler Library Fund Police Confiscation Fund General Debt Service Fund 145,673 152,500 10,436,532 Total $352,875,571 SECTION 4. The City Council approves the first year of the capital improvements proposed to be constructed during the forthcoming year, which are incorporated in the 2004-05 budget. SECTION 5. The budget includes certain unlisted, authorized and unpaid encumbrances fi:om the prior fiscal year to be carded over to the 2004-2005 budget as determined by the City Manager or his designee. SECTION 6. The City Manager, or his designee, is hereby authorized to transfer the amounts of money for employee benefit and salary adjustments as contained in the 2004-2005 budget to the various departments. SECTION 7. The City Manager, or his designee, shall cause copies of the budget to be filed with the City Secretary and County Clerk of Denton County. SECTION 8. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: PAGE 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Fiscal Operations Kathy DuBose SUBJECT Consider adoption of an Ordinance levying the ad valorem tax of the City of Demon, Texas, for the year 2004, on all taxable property within the corporate limits of the city on January 1, 2004, not exempt by law; providing revenues for payment of current municipal expenses, and for imerest and sinking fund on outstanding City of Demon bonds; providing for limited exemptions of certain homesteads; providing for enforcemem of collections; providing for a severability clause; and providing an effective date. BACKGROUND Please find attached an Ordinance to adopt the ad valorem tax rate for 2004. The proposed rate of $.59815 per $100 valuation is used to balance the 2004-05 budget and has not changed from the current rate. PRIOR ACTION/REVIEW A Public Hearing on this tax rate was held during the September 7, 2004 City Council meeting. The proposed tax rate is included in the Proposed 2004-05 Annual Program of Services. FISCAL INFORMATION The proposed property tax rate should generate $26,168,727 of which $17,468,276 is budgeted to support general fund services and $8,700,451 is budgeted for debt service. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations S:\Our Documcnts\Ordinancos\04~ad valorem Lax.doc ORDINANCE NO. AN ORDINANCE LEVYING THE AD VALOREM TAX OF THE CITY OF DENTON, TEXAS, FOR THE YEAR 2004, ON ALL TAXABLE PROPERTY WITHIN THE CORPORATE LIMITS OF THE CITY ON JANUARY 1, 2004, NOT EXEMPT BY LAW; PROVIDING REVENUES FOR PAYMENT OF CURRENT MUNICIPAL EXPENSES, AND FOR INTEREST AND SINKING FUND ON OUTSTANDING CITY OF DENTON BONDS; PROVIDING FOR LIMITED EXEMPTIONS OF CERTAIN HOMESTEADS; PROVIDING FOR ENFORCEMENT OF COLLECTIONS; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after notice of a public hearing on a tax increase was published in accordance with the law, on September 7, 2004, the City Council held a public hearing on a proposal to adopt a tax rate of $0.59815 per $100 valuation which would increase total tax revenues from property on the tax roll by 10.6%; and WHEREAS, at the end of this public hearing, the City Council passed a resolution setting the meeting on which it would vote on the tax rate and announcing that it would vote on the tax rate at its September 21, 2004 meeting, which resolution specified the time and place of this meeting; and WHEREAS, after the public hearing and before the September 21, 2004 meeting, the City Council published a Notice of Vote on Tax Rate in accordance with the law; and WHEREAS, the City Council deems it in the public imerest to adopt a tax rate for the 2004 tax year; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. By authority of the Charter of the City of Demon, Texas, and the Laws of the State of Texas, there is hereby levied for the year 2004, on all taxable property situated within the corporate limits of the City of Denton on January 1, 2004, and not exempt by the Constitution and laws of the State of Texas or municipal ordinance or by Sections 4, 5, and 6 of this ordinance, a tax of $0.59815 on each $100 assessed value of all taxable property. This tax is expected to increase total revenue from properties on the tax roll by 10.6% over 2003 tax revenues. SECTION 2. Of the total tax, $0.39928 of each $100 of assessed value shall be distributed to the General Fund of the City to fund maimenance and operation expenditures of the City. SECTION 3. Of the total tax, $0.19887 of each $100 of assessed value shall be distributed to pay the City's debt service as provided by Section 26.04(e)(3) of the Texas Property Tax Code. SECTION 4. Pursuant to Article 8, Section 1-b of the Texas Constitution, and pursuant to the provisions of Section 11.13(n) of the Texas Property Tax Code, one-half percem of the assessed value of residemial homesteads, or $5,000 of the assessed value of residemial homesteads, whichever amount shall be greater, shall be exempt from City ad valorem taxes. S:\Our Documcnts\Ordinancos\04~ad valorem Lax.doc SECTION 5. Pursuant to Article 8, Section 1-b of the Texas Constitution, $25,000 of the assessed value of residemial homesteads of persons 65 years of age or older shall be exempt from City ad valorem taxes. SECTION 6. Pursuam to Article 8, Section 1-b of the Texas Constitution, $10,000 of the assessed value of residemial homesteads of disabled persons shall be exempt from City ad valorem taxes. SECTION 7. For enforcemem of the collection of taxes hereby levied, the City of Demon shall have available all rights and remedies provided by law. SECTION 8. If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or the application thereof to any person or circumstance is held invalid by any court of competem jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance and the City Council of the City of Demon, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 9. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Fiscal Operations, Tax Department Kathy DuBose ~ SUBJECT Consider adoption of an Ordinance of the City of Demon, Texas, approving the 2004 Tax Rolls; and providing an effective date. BACKGROUND Please find attached an ordinance to approve the 2004 tax roll. The approval of the tax roll is an annual process required by the Texas Property Tax Code. The Tax Roll is calculated by taking the 2004 Certified Appraisal Roll (excluding property under protest) and applying the 2004 adopted tax rate. The anticipated collection rate is 100%. FISCAL INFORMATION The approval of the Tax Roll will enable the City to mail tax bills October 1, 2004. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations S:\Our Documcnts\Ordinancos\04\ta x roll.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING THE 2004 TAX ROLLS; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the 2004 tax rolls of the City of Demon, Texas, which will result in a tax levy in the amoum of $26,168,727 based on the Certified Appraisal Roll as approved by the Appraisal Review Board of the Demon Cemral Appraisal District. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Materials Management Kathy DuBose ~ 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 electric distribution conductors; providing for the expenditure of funds therefore; and providing an effective date (Bid 3202-Annual Price Agreement for Electric Distribution Conductors awarded to Texas Electric Cooperatives in the estimated amount of $233,490). BID INFORMATION This bid is for the annual contract to supply electric distribution conductors for Denton Municipal Electric. These items are carried in the Warehouse working capital inventory for easy access. RECOMMENDATION We recommend that this bid be awarded to Texas Electric Cooperatives in the estimated amount of $233,490. PRINCIPAL PLACE OF BUSINESS Texas Electric Cooperatives Georgetown, TX ESTIMATED SCHEDULE OF PROJECT This price agreement will be in effect for a period of one year from the date of award and may be extended for additional one-year periods if agreed to by both parties with all pricing, terms and conditions remaining the same. FISCAL INFORMATION The items in this bid will be funded out of the Warehouse working capital account and charged back to the using department. Agenda Information Sheet September 21, 2004 Page 2 Attachment 1: Bid Tabulation 1-AlS-Bid 3202 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent x X OI · m m m : E~ g E E~m E E~o E E~o E: e= ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF ELECTRIC DISTRIBUTION CONDUCTORS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3202-ANNUAL PRICE AGREEMENT FOR ELECTRIC DISTRIBUTION CONDUCTORS AWARDED TO TEXAS ELECTRIC COOPERATIVES IN THE ESTIMATED AMOUNT OF $233,490). 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 3202 1-15 Texas Electric Cooperatives Exhibit A SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Exhibit A Bid # 3202 Date: 8/19/04 Annual Contract for Electric Distribution Conductors Co__qg_peratJves Principle Place of Business: Georgetown, TX Wire, 1590 Bare Aluminum Conductor, Class AA, 61 Strand, Overall diameter 1.525, D.C. resistance $2.015 i 20,000 280-16-130 .0109 ohm/m, rated breaking strength 27,000 lbs. (Code name "Coreopsis" on 5, 000 ft. steel reels) Wire, 795 Bare Aluminum Conductor, Class AA, 37 Strand, Overall diameter 1.026, D.C. resistance 2 60,000 280-16-120 0.0218 ohm/m, rated breaking strength 13,770 lbs. $1.047 (Code name "Arbutus" on 5,000 ft. non-returnable reels). Wire, 556.5 Bare Aluminum Conductor, Class AA, 37 Strand, Overall diameter .858, D.C. resistance 3 50,000 280-16-700 0.0312 ohm/m, rated breaking strength 10,770 lbs. $0.832 (Code name "Mistletoe" on 5,000 ft. non-returnable reels). Wire, 477 Bare Aluminum Conductor, Class AA, 19 Strand, Overall diameter .793, D.C. resistance .0362 4 10,000 280-16-110 ohm/m, rated breaking strength 8,360 lbs. (Code 0.649 name "Cosmos" on 5,000 ft. non-returnable reels). Wire, 4/0 Bare Aluminum Conductor, Class AA, 7 Strand, Overall diameter .522 D.C. resistance .0817 5 50,000 280-16-080 ohm/m, rated breaking strength 3,830 lbs. (Code 0.271 name "Oxlip" on 3,000 ft. non-returnable reels). Wire, 2/0 Bare Aluminum Conductor, Class AA, 7 Strand, Overall diameter .414, D.C. resistance .130 6 20,000 280-16-050 ohm/m, rated breaking strength 2, 510 lbs. (Code .198 name "Aster" on 3,000 ft. non-returnable reels). Wire, 795 Bare Aluminum Conductor, Class ACSR, 26/7 Strand, Overall diameter 1.108, D.C. resistance 7 5,000 N/A 0.0214 ohm/m, rated breaking strength 31,500 lbs. 1.269 (Code name "Drake" on 5,000 ft. non-returnable reels). Wire, #2 Bare Aluminum Conductor, Class ACSR, 7/1 Strand, Overall diameter .325 steel cord diameter 8 20,000 280-16-000 .1299, D.C. resistance.251ohm/m, rated breaking $0.127 strength 3,460 lbs. (Code name "Sparate" on 5,000 lt. non-returnable reels). Wire, 4/0-4/0-4/0 AL, 600V XLP, 19 Strand, (Appaloosa) (4/0 QSC) Unshielded neutral is ACSR 9 ~0,000 280-35-140 6/1 Steel Cord Diameter.1878, phase identification- $1.811 ABC + Sequential footage marking at (2-ft minimum intervals) 1,000 reels. Wire, 4/0-4/0 AL, 600V XLP, 19 Strand, (Zuzara) 10 5,000 280-35-080 (4/0 TSC) Unshielded neutral is ACSR 6/1 Steel Cord $~.2~9 Diameter .~878, 1,000 ft. reels Wire, 2/0-2/0-2/0 AL, 600V XLP, 19 Strand, (Grullo) (2/0 QSC) Unshielded neutral is ACSR 6/1 Steel Cord $~.288 11 5,000 280-35-~20 diameter .~489, Phase Identification minimum intervals) lf000 ft. reels Wire, 2/0-2/0-2/0 AL, 600V XLP, 19 Strand, 12 5,000 280-35-060 (Runcina) (2/0 TSC) Unshielded neutral is ACSR 6/1 .80 Steel Cord Diameter. 1489 Wire, #2-#2-#2 AL, 600V XLP, 7 Strand, (Palomino) (#2 QSC) Unshielded neutral is ACSR 6/1 Steel Cord 13 10,000 280-35-100 diameter.1299, Phase Identification - ABC + .606 Sequential footage marking at (2-ft. minimum intervals) Exhibit A T ectric I / / ~ Co__~eratJves Principle Place of Business: Georgetown, T~ Wire, #2-#2 AL, 600V XLP, 7 Strand, (Conch) (#2 30,000 280-35-020 TSC) Unshielded neutral is ACSR 6/1 Steel Cord 0.406 diameter. 1299, 500 l:t. Coils Wire, #4-#4 AL, 600V XLP, 7 Strand (Terrier) (#4 15,000 280-35-000 DSC) unshielded neutral is ACSR 6/1 steel cord .20 diameter .0834, 500 l:t. Coils Total Quoted Bid Price for Estimated Annual Quantities $233,490.00 Conductor Manufacturer Bid: Nexan SHTPIqENT 56 to 70 Days AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 21, 2004 Materials Management Kathy DuBose Questions concerning this acquisition may be directed to Kelly Carpenter 349-8504 SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Arthur Surveying Co., inc. to provide professional surveying services in support of the City of Denton Engineering Department; authorizing the expenditure of funds therefore and providing an effective date (PSA 3219-in an amount not to exceed $150,000). PSA INFORMATION The City of Denton Engineering Department desires to contract with a qualified surveying firm for the delivery of routine surveying services on a work order basis during the 2004-05 fiscal year. Surveying services will include, but not be limited to, providing construction staking, field design surveys, topographic surveys, boundary surveys and analysis, preparation of easement or right-of-way exhibits, GPS monument placement, and other professional surveying services as required. In October of 2003, eleven proposals for survey services were submitted for evaluation. A selection committee consisting of representatives from Engineering, Water Utilities, Purchasing, and Electric Utilities reviewed the proposals. The top five proposals were ranked according to their response to criteria assessing demonstrated competence and qualifications to perform the services required. The Committee ranked Arthur Surveying Co., inc. the highest based on the information submitted in their response. Subsequent to selection, negotiations with Arthur Surveying resulted in rates for survey crews, registered professional land surveyors, and administrative support that were at or below levels funded within the Engineering Department budget for these services. This, coupled with the fact that the City will only be charged for services when services are performed, will allow for cost effective, responsive survey services to City departments. The award of this agreement for 2004-05 will extend the same services with no change in price, terms, or conditions. Section 252.022 of the Local Government Code provides that professional services do not have to be bid. RECOMMENDATION We recommend award of PSA 3219 to Arthur Surveying Co., Inc. in an amount not to exceed $150,000. Agenda Information Sheet September 2 t, 2004 Page 2 PRINCIPAL PLACE OF BUSINESS Arthur Surveying Co., Inc. Lewisville, TX ESTIMATED SCHEDULE OF PROJECT This Professional Services Agreement will begin upon Council approval and be in effect for one year with an estimated expenditure of $ t 50,000. FISCAL INFORMATION Funding for this service will be provided from individual project accounts for each department. All surveying for the Engineering department will be funded from account 35 tOOt .7875. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AlS-RFP 3083 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH THE FIRM OF ARTHUR SURVEYING CO., INC. TO PROVIDE PROFESSIONAL SURVEYING SERVICES IN SUPPORT OF THE CITY OF DENTON ENGINEERING DEPARTMENT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE AND PROVIDING AN EFFECTIVE DATE (PSA 3219-IN AN AMOUNT NOT TO EXCEED $150,000). WHEREAS, The professional services provider (the "Provider) memioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed comract are fair and reasonable and are 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. That the City Manager is hereby authorized to enter into a professional service contract with Arthur Surveying Co., Inc. to provide professional surveying services for the City of Demon Engineering Departmem, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PSA 3219 PROFESSIONAL SERVICES AGREEI~IENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made arid entered into as of the day of ,2004, by and between the City of Denton, Texas~a T~as municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, T~ms 7620t, hereinafter called "Owner" and Arthur Surveying Co., Inc,, with ils corporate office at 220 Elm Slreet; Suite 200, P.O. Box 54, Lewisvilte, Texas 75067, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agmem~nls herein contained, the parties hereto do mutually agreo as foliows: EI~IPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or emgineer or surveyor, as an independent contractor. The Design Professional hereby agnms to perform the services as described hereto and in the Proposal, the General Conditions, and other attachments to this AgreemenI that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, Indefinite Delivery Surveying Servlges-with Attnedunents A~ B~ ~md C, Page 1 SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1,1 For Basic Services tt~e total compensation shall not exceedS150,000 without additional authorization from the Owner 2.1.2 Progress payments for Basic Services shall be paid at hourly reimbursable rates in accordance with Attachment .'B' and 'C' for services pert'ormed by the Design Professional, plus any direct cost reimbursables. 2.2 REIMBURSABLE EXPENSES Reimbursable Expenses shall generally be a multiple of 1.10 times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions. Reimbursable expenses as agreed to between the Owner and Design Professional are described in more detail in Attachment 'C', SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: 1. Applicable portions of the City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Attachments A through C. This Agreement is signed by the parties hereto effective as of the date first above written. Page 2 lt:\gurvoy Sea'vie~\Conttaet 2005\Arfftur Surws, ing Agr~*m~nt.do¢ 5-:30-02 CITY OF DENTON BY: MICHAEL A. CONDUFF CITY MANAGER ATTEST: ~ENNIFER WALTERS, C1TY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATrORNEY BY: WlTNESS: Page 3 ATTACHMENT 'A' SCOPE OF BASIC SERVICES The scope of Basic Services for this project generarly consists of professional surveying services in support of the City of Denton (Owner) as administered by the City of Denton Engineering Department. Services w~il be on an indefinite delivery basis for specific task= or projects aa requested by City stall, The total amount of work is undetermined and may be limited by the total maximum compensation indicated ~n Section 2, Compensation, of the Professional Services Agreement. Specific tasks may include the following: · Construction stakJng · Field design surveys · Topographic surveys · Boundary surveys and analysis · Preparation of easement or right-of-way exhibits · GPS monument placement · Other professional surveying services as requested All survey services will be performed under the direct supervision of a Registered Professional Land Surveyor (RPLS) licensed to practice in the State of Texas. The Design Professional will seal all boundary surveys and other documents requiring the seal of an RPLS. All surveying services will meet or exceed t~e minimum standards of practice established by the Texas Board of Professional Land Surveyors. In addition to field crew(s), the Design Professional wit1 provide the services of an RPLS andJor survey technician to support the field crew, both to prepare materials prior to field work and to compile, analyze or map the information gathered by the field crew or to otherwise prep~ra the work of the tield crew for delivery to the Owner. PROCEDURE A representative of the Owner will provide the Design Professional with a written survey Request Form. This request will provide a minimum of forty-eight (48) hours notice of the need for specific services and will outline briefly the nature of the work to be provided along with the necessary timeline, If the Design Prefessionat Is unable to meet the required schedule, he will notify the Owner within twenty-four (24) hours so that other provisions or a revised schedule can be arranged. Once the Design Professional has reviewed the preliminary Information provided with ~e Survey Request Form and has agreed to accep~ the specific assignment as detailed, the Owner will provide de~ailed information, including written instructions, construction plans or drawings, deeds, sk~etches, elecbonic drawing files, or any other information necessary to complete the assignment. Upon review of the detailed information, the Design Professional wai provide an estimate of the effort and/or cost of services to the Owner's designated representatJve. Upon completion of the work, the Design Professional will provide electronic files, plots, maps, exhibits, tie[d notes, point flies, and/or other materials as requested by the Owner. Deliverables will be produced and transmitted to the Owner using standards established and set fcxth by the City of Denton Engineering Department. Exh~bit A- P~ge I ATTACHMENT 'B' SCHEDULE OF FEES A. BASIC SERVICES: For work performed by the Design Professional within the scope identified in Attachment A, Scope of Basic Services, the Design Professional wiJl be reimbursed as described below:. 1. Labor Design Professional shalt be reimbursed on the basis of negotiated fees for each /tern of service provided, as mutually agreed to by the Design Professional and the Owner, or on the basis of labor of personnel employed by the Design Professional on an hourly basis in accordance with ATTACHMENT 'C', Standard Rate Schedule for Reimbursal:ffe/Mu/tiplier Contracts. When services are based on hourly reimbumab~e rates, the time char/led wifl not include travel t/me to the pro~ect site from the Lewisvi[[e office of the Design Proressionef and will cease upon completion of the task in Denton. No travel time will be charged by the Design Professional. Direct expenses, such as printing, reprodu~ons, delivery/courier services, etc. will be reimbursed to the Design Professional at his direct i~voice expense times a multiplier as set forth in Attachment 'C'. Where appropriate, a not-to-exoeed amount will be established and agreed to for each item of service provided. Exhibit B - P'~e 1 ATTACHMENT 'C' STANDARD RATE SCHEDULE FOR REIMBURSABLE/MULTIPLIER CONTRACTS (to be attached by the Design Professional) ......... ¥ i Im I IIII I ' P.O3ox 54 - Le~le, Texas 75067 220 Elm Sheet, Sic, 200 - Lewi~ie, Texas 75057 Pit (g72) 221-g45g FAX (972) 221-4675 SCHEDULE OF HOLrRLY RATES 220 Elm Street, Suite #200 Lewisville, Texas 75067 Effective January 2003 Registered Professional Land Surveyor Project Representative Senior Technician Junior Technician Survey Coordinator Office Manager Office Clerical Conventional Field Crew/Junior Party Chief Conventional Field Crew/Senior Party Chief GPS Field Crew $100.00 per hour $50.00 per hour $75.00 per hour $45.00 per hour $50.00 per hour $50.00 per hour $30.00 per hour $80.00 per hour $100.00 per hour $125.00 per hour STAKES: Stakes will be charged at cost + 10% if an excessive number are required. (Typically included in crew rate.) IRONS: Irons will be charged at cost + 10% if an excessive number are required. (Typically included in crew rate.) SPECIAL MONUMENTS: Special Monuments will be charged at cost + 10%. SPECIAL EQUIPMENT: Any special equipment required on a job will be charged at rental cost + 10%. OVERTIME RATES: Jobs requiring work on weekends or holidays will be billed at t.5 times the standard rate. Each project is evaluated to determine the best/most cost effective personnel for that particular project. The number of persons on a field crew is determined in the same manner. There is no cost difference in a 2 or 3 man crew. SCHEDULE OF REIMBLrRSABLE EXPENSES Reproduction-Out of-House Vellum Prints Mylar Prints Bond Prints Actual Expense x 1.5 $ I 0.00 / sheet $ 20.00 / sheet $1.50 / sheet Boundary surveys, exhibits, etc. requiring a lump sum price, please cai1 for a quote ~ 972-221-9439. CITY OF DENTON GF_~ CONDITION~ TO A~NT ~'OR ARCHITECTURAL OR ENC~NEERtlqG ARTICLE L ARCHI-t~CT OR ENGINEER'S RE~ON/nmLITIE~ adjmMtcnts m ~ ,~ ~~ s~b~ ~ ~. ARTICLE ~ SCOPE OF BA~C SERVICES 2.2 ~I~.x~,TIC DESIGN~E · 4 ~N~U~ON ~S ~ ~ ~~ON CO~~~~ ~gc I of g H.~mv~y S~-A~s\~GENERAL CONDITIONS-ARiX-]Y~CT-ENGINEEILd~ Revised $-30-02 H :kSm'vW S~vleea\~EI~ER. AL COND1TIO NS*ARCH1TECT-EN Gl~m~K.~ Revkui H~\gmy~ Scfld~cs\Centm~\G~ CONDITiONS-ARCI-I1TECT-ENGIN-~LR-do¢ AR~CLE 40V~'~t.~$ RESPONS~JlL1T~XS PaBe4of8 H:'G'm-~ey .Set'vi~'~.~l:ra~2',~RAL CON'~T~O~ARC:HTTECT-EN~ ARTICLES CON,~TRUCTIOlq COST .%1 CONSTRUCTION COST DEFINED -~1.1 T~ ~tioa C.~t g~dl be I~ t~l &i.~ Thc C-~n~iion Cmt ~Illn~lnd~ ~h~ ~taieun~ mad~t~ ofl~orm~m~riak f-umisl~d~th~ Ow~rand ~q~ipa~nt~ ~. ~or sp~ ~r~ ~~ p~ a~b~~r ~ ~ ~ ~-~ ~ a ~ ~ ~~ ~ COWS~ON ~ ~CLE 6 o~~ U~ OF ~ P~ 5 of g 5-30-09. ARTICLE'/ TERMINATION, SUSPENSION OR AI~_~T ARTICLE 8 PA~ ~ ~ ~GN ~0~I0~ H;~mvey ~\~\G~ ~ONDITION$-AR~tlTNCT.I~GtNEE~ R~b~t P'agc $ ors IL'~uwey Scr~ice~7_~fl~ct~GENF-.RAL CONDITIONS-ARCHITECT-ENGI't,~EER.do~ Rsvh~l 5-30.02 tim IIII I II I I I AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 21, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Janet Simpson 349-8274 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a public works contract for the construction of a new Civic Center Marquee and Electronic Message Board; providing for the expenditure of funds therefore; and providing an effective date (Bid 3209-Civic Center Marquee and Electronic Message Board Project awarded to Starlite Sign, LP in the amoum of $43,565). BID INFORMATION This bid is for the removal and disposal of an existing marquee sign at the City of Demon Civic Center and the construction of a new electronic message marquee sign to be installed at the same location. RECOMMENDATION We recommend award of this item to lowest responsible bidder, Starlite Sign, LP in the amount of $43,565. PRINCIPAL PLACE OF BUSINESS Starlite Sign, LP Denton, TX STAFF COST ESTIMATE The staff's estimate for this project was $50,000. ESTIMATED SCHEDULE OF PROJECT Construction and installation of the sign is estimated to be 60 days from date of award. The marquee should be operational by the end of December 2004. FISCAL INFORMATION Funding for this project will be provided from accoum 100087445.1360.40100. Agenda Information Sheet September 21, 2004 Page 2 Attachment 1 :Tabulation Sheet 1-AlS-Bid 3209 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1 Bid # 3209 Date: August 24, 2004 Civic Center Marguee and )nic Messa( Board Pro'ect  Denton, TX Sarasota, FL Total Base Bid $43,565.00 $46,924.00 Alternate #1Total Base Bid_ No Bid No Bid Total Materials [ncorporated T°tal !na~ r~ ~ les ~ rn(~°ercpt ° rat e d $31,800.00 N/A Total Labor, Supervison & Materials Not ~ncorporated $11,765.00 N/A ,~o the Pro!ect Bid Bond Yes Yes Delivery & Tnstallation 60 days 12 weeks ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF A NEW CIVIC CENTER MARQUEE AND ELECTRONIC MESSAGE BOARD; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3209-CiViC CENTER MARQUEE AND ELECTRONIC MESSAGE BOARD PROJECT AWARDED TO STARLiTE SIGN, LP IN THE AMOUNT OF $43,565). 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 3209 Starlite Sign, LP $43,565 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. That upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3209 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Materials Management Kathy DuBose Questions concerning this acquisition may be directed to Scott Payne 349-7870 SUBJECT Consider adoption of an Ordinance accepting sealed proposals and awarding a comract for All Risk Commercial Property insurance Coverage including Catastrophic Vehicle and Boiler and Machinery for the City of DeNon; providing for the expenditure of funds therefore and providing an effective date (RFSP 3207-Commercial Property insurance; Catastrophic Vehicle; Boiler and Machinery awarded to McGriff, Seibels & Williams of Texas, inc. in the estimated amoum of $248,659). RFSP INFORMATION The City requested sealed proposals for Commercial Property, Boiler & Machinery, and Catastrophic Vehicle Insurance coverage from FM Global to protect its assets totaling over $251,000,000 in buildings, machinery and equipmem, and comems. The Commercial Property policy insures our buildings and facilities from standard exposures to risk such as fire, windstorm, hail, and tornado, in addition the policy also includes coverage for physical damage to large vehicles and equipmem (fire, dump, and refuse trucks), special coverage for specific equipment/machinery used by Utilities and limited coverage for floods. Through Request for Sealed Proposal (RFSP) #3207, the City of DeNon received proposals for the City's All-Risk Property, Boiler & Machinery, and Catastrophic Vehicle insurance to be effective October 1, 2004. Staff evaluated and analyzed proposals submitted by the following: McGriff, Seibels and Williams of Texas, Inc., presemed a combined quote from Allianz Global Risk for the Property, including the Catastrophic Vehicle, and Travelers insurance on the Boiler and Machinery coverage with an estimated premium of $248,659. McGriff also presemed a quote from Texas Political Subdivisions (TPS) with an estimated comribution of $440,692. Texas Municipal League imergovemmemal Risk Pool (TML) presemed a quote with an estimated comribution of $258,613. FM Global presemed a quote with an estimated premium of $349,962. Liberty Mutual Property presemed a quote for the Property and Boiler & Machinery, but did not include the Catastrophic Vehicle. The estimated premium is $259,993. Agenda Information Sheet September 21, 2004 Page 2 RECOMMENDATION We recommend award of RFSP 3207 to McGriff, Seibels & Williams of Texas, Inc. estimated amount of $248,659. PRINCIPAL PLACE OF BUSINESS McGriff, Seibels & Williams of Texas, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT The initial term of the contract September 30, 2005. Options underwriting are also included. FISCAL INFORMATION This item will be funded from account 860002.6703. in the for insurance coverage will be October 1, 2004 through for three additional one-year renewals subject to annual Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Proposal Comparison 1-AIS-RFSP 3207 City of Denton Property Coverage Comparison I Limits RequestedI Current I Allianz I rE Global ILiberty Mutual I TEL I TPS A.M. Best Rating Coverage~ AXV A+XIV AXV Not Rated Not Rated Property: Levels Blanket Limit of Insurance $251,670,000 $280,000,000 $200,000,000 loss limil $300,000,000 $251.649.988 $251.670.000 $200,000,000 loss limit Sub-limits: Business Income $5,000,00( ncluded in total limit $5,000,000 $5,000,000 $5,000,000 Extra Expense $1,000,00( $1,000,000 $1,000,000 $5,000,000 $1,000,000 $1,000,000 $5,000,000 Property in Transit $500,00( $500,000 $500,000 $500,000 $500,000 $500,000 $25,000 Consequential Loss $100,00( ncl in Boiler Coverage $100,000 $100,000 $100,000 Accounts Receivable $5,000,00( $5,000,000 $5,000,000 $5,000,000 $5,000,000 $5,000,000 $100,000 Valuable Papers $5,000,00( $5,000,000 $5,000,000 $5,000,000 $5,000,000 $5,000,000 $100,000 Inventory or Appraisal $100,00( $100,000 ncl. In total limit $100,000 $100,000 $100,000 $10,000 Personal Property of Employees $10,00( $10,000 ncl. In total limit $10,000 Incl. In total limit $10,000 $2,500 Ordinance or Law Coverage $10,000,00( $10,000,000 $5,000,000 Incl in lac Cost of Coast Incl. In total limit Incl $500,000 Flood $5,000,00( $2,000,000 $5,000,000 $5,000,000 $5,000,000 $5,000,000 $10,000,000 Earthquake or Movement $100,000,00( $100,000,000 $50,000,000 $100,000,000 $25,000,000 $100,000,000 $10,000,000 Demolition & Increased Cost of Construction $5,000,00( $5,000,000 ncl with Ord/Law $10,000,000 $5,000,000 $5,000,000 $500,000 Errors and Omissions $10,000,00( $10,000,000 $10,000,000 $10,000,000 $1,000,000 $10,000,000 Expediting Expenses $1,000,00( $1,000,000 $1,000,000 Incl. In Extra Expense $1,000,000 $1,000,000 Newly Acquired Locations (reported within 120 days) $10,000,00( $10,000,000 $10,000,000 90 days $15,000,000 90 days $5,000,000 $1,000,000 $1,000,000 30 days Miscellaneous Unnamed Locations $1,000,00( $1,000,000 $1,000,000 $10,000,000 $1,000,000 $1,000,000 $50,000 Tempora~.w Locations $250,00( $250,000 ncl. Above Incl Above $250,000 Water that Backs Up Through Sea-ers or Drains $5,000,00( $5,000,000 ncl in Flood $5,000,000 Incl in Flood $5,000,000 Data, Programs & Software $5,000,00( $5,000,000 $5,000,000 $5,000,000 Included in Total Limit $5,000,000 $1,000,000 Fine Arts $5,000,00( $5,000,000 $5,000,000 $5,000,000 $5,000,000 $5,000,000 Leasehold Interests $10,000,00( $10,000,000 $10,000,000 $10,000,000 $2,500,000 $10,000,000 Deferred Payments $10,000,00( $10,000,000 $10,000,000 $10,000,000 Rental Insurance $180,00( $180,000 180,000 180,000 $180,000 Decontamination Expense $1,000,00( $1,000,000 $1,000,000 Incl in Policy Limit $1,000,000 Debris Removal Policy Limil Policy Limit $25.000.000 Incl in Policy Limit Incl in Policy Limit Incl in Policy Limit Limited Deductible $50,00( $50,000 $50,000 $50,000 $50,000 $50,000 $50,000 Boiler and Machinery: Boiler and Machinery Coverage (Any One Accident) $50,000,00( $50,000,000 $100,000,000 Policy Limit $100,000,000 $50,000,000 $50,000 Sub-limits: Business Interruption $2,000,00(Incl with Gross Earning $2,000,000 Incl with Gross Earnings $5,000,000 $2,000,000 Expediting Expenses Policy Limil Incl with Extra Expense $2,500,000 Incl with Extra Expense $100,000Policy Limit $1,000,000 Hazardous Substances $2,000,00($2,000,000 $1,000,000 $2,000,000 except PCB $100,000 $2,000,000 $250,000 Ammonia Contamination Policy Limil Policy Limit $2.500.000 Policy Limit $100.000Policy Limit Water Damage Policy Limil Policy Lmt excpt Flood $2.500.000 Policy Limit except Flood$100.000Policy Limit Deductible $50,00( $50,000 $50,000 $50,000 $50,000 $50,000 $50,000 Vehicle & Mobile Equip (Floater Catastrophic Loss): Not Quoted Not Quoted Per Occurrence $2,500,00( $2,500,000 $2,500,000 $2,500,000 $2,500,000 Per Piece of Mobile Equipment $500,00( $2,500,000 \s Scheduled $2,500,000 $8,837,962 Per Vehicle $50,00( $2,500,000 \s Scheduled $2,500,000 ACV of Vehicle Automatic Coverage $425,00( $2,500,000 $400,000 $2,500,000 $1,000,000 City of Denton Property Coverage Comparison Deductible $10,00( $10,000/$50,000 $i0,000/$50,00¢ $i0,000 $i0,000 Terms and Endorsements: Broad Named Insured Yes or NcYes Yes Yes Ye.~ No No Revised Notice of Claim Requirement Yes or NcYes No Yes Nc Yes No Notice of Occurrence Yes or NcNo No No Ye., Yes No Inadvertent E&O in Application Yes or NcNo Yes No Ye.~ Yes No 90-Day Notice of Cancellation/Non Renewal Yes or NcYes Yes Yes No 60 days No 60 days No 30 days All Risk Coverage Yes or NcYes Yes Yes Ye.~ Yes Yes Agreed Amount Endorsement Yes or NcYes Yes Yes Yes Yes No Replacement Cost Coverage (Property, B&M) Yes or NcYes Yes Yes Ye.~ Yes Yes On Premises Services Yes or NcYes Yes Yes Yes No Pollutant Clean Up and Removal Yes or Nc$50,000 Yes $50,000 Limited $10,000 Terrorism (Certified) Premium $8,113 $22,500 $27,941 $10,000,000 Incl Terrorism (Non- Certified) Premium $2.028 $11.250 Property Premium: Boiler & Machinery Premium: Vehicle & Mobile Equipment Premium: TOTAL PREMIUM: Terrorism Premium: Total with Terrorism 3% Discount for Payment in 30 Days Adjusted Premium $188,318 $316,212 $232,052 $222,428 $367,006 $50,200 Incl. IncI Incl. $55,424 Incl. Incl. Not Quotec $36,185 $238,518 $316,212 232,05~$258,613 $440,692* *lncl $18,263 Mkt Stability F~ $10,141 $33,750 $27,941Incl. $10,000,000 only $248,659 $349,962 $259,993 $258,613 $440,692 No Terrorism -7758.39 $248,659 $349,962 $259,993 $250,855 $440,692 ORDINANCE NO. AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING A CONTRACT FOR ALL RISK COMMERCIAL PROPERTY INSURANCE COVERAGE INCLUDING CATASTROPHIC VEHICLE AND BOILER AND MACHINERY FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE AND PROVIDING AN EFFECTIVE DATE (RFSP 3207-COMMERCIAL PROPERTY INSURANCE; CATASTROPHIC VEHICLE; BOILER AND MACHINERY AWARDED TO MCGRIFF, SEiBELS & WILLIAMS OF TEXAS, iNC. iN THE ESTIMATED AMOUNT OF $248,659). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of Property insurance Coverage in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; 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 items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFSP NUMBER CONTRACTOR AMOUNT 3207 McGriff, Seibels & Williams of Texas, Inc. $248,659 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals 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 Proposal Invitations, Proposals, and related documents. SECTION 3. That should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. That by acceptance and approval of the above numbered items of the submitted proposals, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved proposals 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 the day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-RFSP 3207 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 21, 2004 Materials Management Kathy DuBose ~% Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance approving the expenditure of funds for the purchase of epoxy coatings available from only one source in accordance with the provision for State Law exempting such purchases from requirements of competitive bids; and providing an effective date (File 3213-Purchase of Epoxy Coatings to Raven Lining Systems, inc. in the estimated amount of $45,000). BID INFORMATION The City of Denton is currently under an EPA Administrative Order to correct infiltration/inflow problems in its wastewater collection system to prevent wastewater overflows during wet weather conditions. Deteriorated manholes are one of the major components that allow run off to enter the wastewater collection system. The manholes are rehabilitated either by constructing new manholes or lining the walls of existing manholes to stop the leakage. The City has been using Raven Lining since the year 2000 to rehabilitate its manholes. The City has a dedicated crew that has been trained and certified as a Raven Lining applicator and has made an investment of over $90,000 to purchase Raven Lining equipment to perform the repairs. This purchase for epoxy coatings is to continue the repair process from September 30, 2004 through September 30, 2005. Raven Linings Systems, inc. is the sole manufacturer of the Raven 405 and AquataPoxy A-10 epoxy coatings that are currently being used. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item at its September 13, 2004 meeting. RECOMMENDATION We recommend award of this item to Raven Lining Systems in the estimated amount of $45,000. PRINCIPAL PLACE OF BUSINESS Raven Lining Systems Tulsa, OK Agenda Information Sheet September 21, 2004 Page 2 ESTIMATED SCHEDULE OF PROJECT This purchase is to continue the manhole lining repair process from September 30, 2004 through September 30, 2005. FISCAL INFORMATION This item will be funded from account 640038541.1350.40100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Sole Source Letter from Raven Lining Systems 1-AlS-File 3213 At:acl~ent I Wednesday, August 04, 2004 For a lifetime of protection. Karen Smith City of Denton 901 B Texas Street Denton, TX 76201 United States of America Dear Karen: Please accept this letter as a statement of sole sou."ce for Raven 405 and AquataPoxy A-1.0 and A-20, technical data sheets attached. Raven Liming Systems is the sole manufacturer of these products. Their formulations are pro%cted as a trade secret belonging to Raven Lining Systems. Raven 405 is available exclusively to Ced',fied Applicators, such as the City of Denton, who have purchased certified equipment for proper spray application of this material. Prices per gallon on these products FOB Tulsa for ;;~e calendar year of 2005 will be as follows: < 550 g 551-1,!00 g ? 1,100 405 $54.00 $53.00 $51.00 1 Gal Containers 5 Gal Containers A-10 $41.00 $3900 A-20 $49.00 per .75g kit If there is any further information or documentation.~ecessary, please contact me at'800-324- 2810. Sincerely, es e PresiOent 1024 North Lansing Avenue · Tulsa, OK 74106 · 800-324-2810 ° 918-584-2810, Fax: 918-582-4311 www. raventining.com · ernail: contact@ravenlining.corn ORDINANCE NO. AN ORDINANCE APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF EPOXY COATINGS AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISION FOR STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS; AND PROVIDING AN EFFECTIVE DATE (FILE 3213-PURCHASE OF EPOXY COATINGS TO RAVEN LINING SYSTEMS, INC. IN THE ESTIMATED AMOUNT OF $45,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following purchase of materials, equipment or supplies, as described in the "Purchase Orders" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached hereto are hereby approved: FILE NUMBER VENDOR AMOUNT 3213 Raven Lining Systems Exhibit A SECTION 2. That the acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. That the City Manager is hereby authorized to execute any contracts relating to the items specified in Section I and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-File 3213 Exhibit A Item Raven 405 Cost per Gallon <550 Gal $54.OO 551-1100 Gal $53.00 > 1100 Gal $51.00 AquataPoxy A- 10 AquataPoxy A-20 1 Gallon Containers $41.00 $49.00 per .75g kit 5 Gallon Containers $39.00 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES September 13, 2004 DRAFT 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, September 13, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: Dick Smith CONSENT AGENDA: 1) Consider approval of Bid No. 3206 to McCourt & Sons Equipment, Inc. for the purchase of an 18' SCARAB Windrow Turner, and accept trade-in for the 1994 16' SCARAB windrow turner. Purchase price minus trade-in will not exceed $262,850. 2) Consider approving the expenditure of funds for the purchase of epoxy coatings available from only one source in accordance with the provision for State Law exempting such purchases from requirements of competitive bids to Raven Lining Systems, Inc. in the estimated amount of $45,000. Board Member George Hopkins had several questions concerning Consent Agenda Item # 1, which was pulled for separate discussion. Board Member John Baines moved to approve Consent Agenda Item #2, with a second from Board Member Bill Cheek. The motion was approved by a vote of 6-0. Page 1 of 1 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 21, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a contract for the purchase of an 18-foot Windrow Composting Machine for the Beneficial Reuse Department; providing for the expenditure of funds therefore; and providing an effective date (Bid 3206-18- Foot Windrow Composting Machine awarded to McCourt and Sons Equipment, Inc. in the amount of $292,850 less $30,000 trade-in of the existing unit, for a total award amount of $262,850). BID INFORMATION This bid is for the purchase of an 18-foot Windrow Composting Machine to be used for mixing and aerating compost windrows. The new 18-foot windrow turner will replace a 1994 16-foot SCARAB windrow turner that has been used since the initiation of the City's composting program. The SCARAB is the heart of the composting process, enabling the City to meet TCEQ and EPA regulations for producing Class A compost. To achieve Class A standards, compost windrows must be turned a minimum of five times over a 15-day period. Bids for the new windrow turner were received on August 19, 2004. There were three bidders for the machine. The bids ranged from $249,500 to $292,850. McCourt and Sons Equipment, inc. was the only bidder that met all of the bid specifications at $292,850. McCourt and Sons Equipment, inc. and Wamsley Welding provided an optional trade-in bid for the 16-foot windrow turner. McCourt and Sons offered the higher trade-in price of the two at $30,000 versus $21,500 from Wamsley Welding. The third bidder, Norton Environmental, did not bid on the trade-in. The $30,000 trade-in amount is 22% of the original purchase price. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item at its September 13, 2004 meeting. RECOMMENDATION We recommend award of this item to McCourt and Sons Equipment, Inc. in the amount of $292,850 less $30,000 trade-in of the existing unit, for a total award amount of $262,850. The lower bid submitted by Norton Environmental Equipment failed to meet specifications for engine horsepower, drive wheel, rotating drum, and drum drive, in addition, no machine of this model has been sold in the United States. Agenda Information Sheet September 21, 2004 Page 2 RECOMMENDATION (CONTINUED) The unit offered by Wamsley Welding failed to meet requirements for overall dimensions, processing capacity, drum requirements, and availability of a metroplex based repair and parts facility. PRINCIPAL PLACE OF BUSINESS McCourt and Sons Equipment, Inc. Lagrange, TX ESTIMATED SCHEDULE OF PROJECT The composting machine can be delivered within 90-120 days from receipt of the order. FISCAL INFORMATION This item will be funded from account number 640400.7836. Funding for this item was included as part of a third party lease purchase agreement approved by Council on April 22, 2004. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1 :Tabulation Sheet 1-AlS-Bid 3206 Bid # 3206 Attachment Date' 8/19/04 18 Foot Windrow Composting Machine McCourt & Sons Norton Environmental Wamsley Welding Equipment Inc. Equipment &MFG Principle Place of Business: Lagrange, TX Independence,OH Cheyenne Wells, CO 18 Foot Windrow I $292,850.00 $249,500.00 $269,500.00 Composting Machine King of the Make/Model Scarab/18H40/525/RT Komptech/X53 Windrow/KW7-18 425H Optional trade in of: 1994 - 16" SCARAB Windrow turning machine. 240 Cummins engine, turbo- charged and after cooled. Load controller, AM/FM Cassette player, AC/Heat. Hours on the machine on 2 $30,000.00 No Bid $21,500.00 the original motor were 1,775 hours. Engine was rebuilt in July 2002. Current hours on the new motor are 500+ for a total of 2,319. Total rebuild of gearbox driving hydraulic system on 5/25/04. 3Optional outright purchase No Bid No Bid No Bid of: Item #2 above Shipment 90-120 Days 60 Days 172 Days ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF AN 18-FOOT WINDROW COMPOSTiNG MACHINE FOR THE BENEFICIAL REUSE DEPARTMENT; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 3206-18-FOOT WINDROW COMPOSTING MACHINE AWARDED TO MCCOURT AND SONS EQUIPMENT, INC. IN THE AMOUNT OF $292,850 LESS $30,000 TRADE iN OF THE EXiSTiNG UNIT, FOR A TOTAL AWARD AMOUNT OF $262,850). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 3206 McCourt & Sons Equipment, Inc. $262,850 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 on file in the office of the Purchasing Agent; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3206 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES September 13, 2004 DRAFT 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, September 13, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: Dick Smith CONSENT AGENDA: 1) Consider approval of Bid No. 3206 to McCourt & Sons Equipment, Inc. for the purchase of an 18' SCARAB Windrow Turner, and accept trade-in for the 1994 16' SCARAB windrow turner. Purchase price minus trade-in will not exceed $262,850. 2) Consider approving the expenditure of funds for the purchase of epoxy coatings available from only one source in accordance with the provision for State Law exempting such purchases from requirements of competitive bids to Raven Lining Systems, Inc. in the estimated amount of $45,000. Board Member George Hopkins had several questions concerning Consent Agenda Item # 1, which was pulled for separate discussion. Board Member John Baines moved to approve Consent Agenda Item #2, with a second from Board Member Bill Cheek. The motion was approved by a vote of 6-0. ITEMS FOR INDIVIDUAL CONSIDERATION: Item #1 Hopkins asked if staff had profit and loss figures for the first 11 months of FY 2004 associated with the $315,000 gross revenue. He also asked for an explanation of the intangible benefits of purchasing the 18' SCARAB. Coulter responded that composting expenditures are $746,000. Compost sales this year totaled approximately $306,000. He pointed out that biosolids do not meet Class A requirements and have to be buried. If the City did not have the composting operation the City would have to bury them in the landfill. We are saving money in that area. We have a shortage of approximately Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 $84,000 in the net benefit of the current operation, but we have a landfill space savings of approximately $271,000 by not having to bury the yard waste and brush in the landfill. Hopkins mentioned that two of the vendors' bids did not qualify, and asked how they were different. Coulter explained that they did not have the ability to provide parts and service. The closest vendor for the Komtech/X53 is in Ohio and has only sold that type of equipment in Europe. Their bid also did not meet the 425 h.p. minimum requirement on the equipment. Coulter also explained that Wamsley Welding & Mfg could not provide parts and service available locally. Their parts and service department is in Colorado. Coulter pointed out that the rotating drum contains an end shaft, and when a Scarab product has mechanical difficulties with the shaft, it can be removed and replaced in the field. The other unit would have to be sent back to the factory to welding or wait for a replacement part. Coulter commented that the equipment needs to work day in and day out and needs a quick turnaround. Board Member Phil Gallivan asked for information on the expected life of the new equipment. Coulter responded that the old equipment lasted for 10 years and had turned approximately 900,000 cubic yards of material. Martin explained that additionally, for the first three years the old equipment operated in the mud because there was no concrete slab. Board Member Bob Bland asked why the 1994 equipment needed to be replaced and how will McCourt & Sons Equipment, Inc. utililize the trade-in equipment. Coulter responded by explaining that the old equipment is beyond its useful life. Beneficial Reuse needs equipment that is routinely dependable because long periods of downtime are not feasible. Wastewater biosolids would be lying on the ground, not being processed. He also explained that McCourt would recondition the 16' windrow turner and sell it to a contractor who has regular composting needs without the wastewater biosolids. Downtime would not be critical to this type of vendor. The City has to complete a minimum of 5-turnings over a 15-day period, as regulated by TCEQ and EPA. Hopkins asked if staff expected the new equipment to last as long as the older equipment, which had a much lighter usage. Coulter explained that staff expects to get similar usage out of the new equipment because it is a larger unit and a more powerful piece of equipment. He pointed out that staff is also making changes in the solids handling capabilities at the plant by drying out the solids more. Consequently, over the next ten years, the operation may process an additional forty to fifty percent of compost. Board Member Bill Cheek mentioned that staff had lowered the price for bulk in the FY 2004- 2005 Budget. Coulter responded that there was a 2,000 yd. minimum, which was reduced to a 500 yd. minimum. The 2,000 yd. minimum drove some customers away from the market. Cheek asked if the City was selling compost to TXDOT for their projects. Coulter explained that in the past, the City has not had enough material to provide the volume needed for that size market. With the new equipment, the City will double the quantity, and will start bidding on those projects. Gallivan moved to approve Bid #3206 to McCourt & Sons Equipment, with a second from Board Member Bob Bland. The motion was approved by a vote of 6-0. Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 21, 2004 Materials Management Questions concerning this acquisition may be directed to Eva Poole 349-8750 ACM: Kathy DuBose ~G SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual comract for the purchase of prim materials for the Demon Public Library System; providing for the expenditure of funds therefore; and providing an effective date (Bid 3210-Prim Materials awarded to Baker & Taylor, Inc. in the estimated amoum of $300,000). BID INFORMATION This bid is to provide the Demon Public Library System with prim materials for the period of October 1, 2004 through September 30, 2005 with an option to renew for up to three years. The prim materials include the following nine categories of publications: General Trade, Best Sellers, Technical, Children's Books, Mass Market Paperbacks, Prebound Books, Large Prim Books, Wholesale Books, and Foreign Language Books. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS At its September 2, 2004 meeting, the Demon Public Library Board approved award of this bid to Baker & Taylor, Inc. RECOMMENDATION We recommend award of this bid to Baker & Taylor, Inc. in the estimated amoum of $300,000. This recommendation is based upon discoums bid and Baker and Taylor's ability to provide value added services as requested. PRINCIPAL PLACE OF BUSINESS Baker & Taylor, Inc. Charlotte, North Carolina ESTIMATED SCHEDULE OF PROJECT This bid will be in effect from October 1, 2004 through September 30, 2005 with an option to renew for three one-year periods. Agenda Information Sheet September 21, 2004 Page 2 FISCAL INFORMATION This item will be funded from accounts 301001.8595 and 303001.8595. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Bid Tabulation 1-AlS-Bid 3210 Bid # 3210 Attachment1 Date: 8/26/04 PRZNT MATERZALS ~ ~ Ingram Library Brodart Company Baker&Taylor ~ ~ Services, Inc~. By: Nubro I~nc__. ' BWI Inc~. ' I Principle Place of' Business: LaVergne, TN Williamsport, PA Lexington, KY Charlotte, NC I ia General Trade % 44.0% 46% 40% 46.20% I lb Bestsellers % 40.0% 0.46% 40% 46.20% I lc ~T,e.c,h,nica, I B~ook, s .......... % 11.50% .15~% N/A 14.00% Children's Books in Publisher's Library o o o o o I ie Mass Market Paperbacks % 40.00% 38% 40% 40.30% I if Pre-bounds Books % NO BID 38% Net % 40.30% I lg Large Print Books % 11.50% 15% 0n See attached 46.20% I ih Wholesale Books % NO BID NO BID N/A NO BID I ii Foreign Language Books % 11.50% 15% 40% 46.20% I lj Quality Paper % 40.00% 38% 40% 40.30% I PROCE$$1'NG BUNDLES I F~ssed; automated with theft I detection', Myal r jacket, spine label, I 2a barcode, ownership.label,and theft . $1.40 $0.89 $1.61 $1.15 I p~vice all attached to book I F~~a dwith theft label, barcode, ownership label, and 2b $1 25 $0 89 $1 26 $1 06 i .... I book (shelf~hllarily for I non-fiction). I u omated ,itho.t I ~~cket, spine zc ' I attached to book I u o ated_ I ~ or spine lable; Mylar I zd ~nd ownersh~ label, all Su.~sb $U./'9 $U.'91 SU.OO I attached to book I PROCE$$ZNG A LA CARTE I 3a Mylar attached $0.63 $0.55 $0.59 $0.49 I 3b Mylar unattached $0.58 $0.50 $0.59 $0.44 I 3c Spine Label attached $0.15 $0.10 $0.70 $0.10 I 3d Spine Label unattached $0.15 $0.10 $0.35 $0.08 I 3e Barcode attached $0.12 $0.10 $0.49 $0.10 I 3f Barcode unattached $0.12 $0.10 $0.25 $0.08 I 39 Ownershiplabel attached $0.12 $0.10 $0.40 $0.10 I 3h Ownership label unattached $0.12 $0.10 $0.10 $0.08 I 2~ 'l'heft detection attached $0.40 $0.43 $0.70 $0.49 I ~j l'heft detection unattached $0.40 $0.40 $0.35 $0.45 I 3k Plastic covering for Paperbacks NO BID $2.20 $1.89 $1.99 I 31 Laminated Paperback Covers $1.99 $2.20 N/A $1.99 I SHI'PMENT 7 Days 2 Days 30 Days 2-9 Days 0.44% ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF PRINT MATERIALS FOR THE DENTON PUBLIC LIBRARY SYSTEM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3210-PRINT MATERIALS AWARDED TO BAKER & TAYLOR, INC. IN THE ESTIMATED AMOUNT OF $300,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of STATE law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 3210 Baker & Taylor, 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 on file in the office of the Purchasing Agent; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3210 Bid # 3210 ExhibitA Date: 8/26/04 PRINT MATERIALS ~ ~ Baker &Taylor, Principle Place of Business: Charlotte, NC La General Trade % 46.20% :Lb Bestsellers % 46.20% Lc Technical Books % :L4.00% ~~r's Library · u Binding :Le Mass Market Paperbacks % 40.30% :Lf Pre-bounds Books % 40.30% :Lg Large Print Books % 46.20% :th Wholesale Books % NO BID :ti Foreign Language Books % 46.20% :Lj Quality Paper % 40.30% PROCESSING BUNDLES F~ssed; automated with theft detection; My al r jacket, spine label, 2a barcode, ownership.label,and theft . $:L.:L5 p~vice all attached to book F~~a dwith theft detection; Mylar jacket, no spine ~e, wnershiplabel, and 2b $1 06 ~~'t; ~1~ e-d '~'o ' book (shelf~ffnarily for non-fiction). F~S; automated without ~~cket, spine ZC ' .~U /b ZC la bel~wn~rshl~'la ~el, all ' attached to book F~s; autom_ated_ _w!thout. or spine lable; Mylar ~ ~nd ownersh~ label, all SU.bb attached to book PROCESSING A LA CARTE 3a Mylar attached $0.49 3b Mylar unattached $0.44 3c Spine Label attached $0.10 3d Spine Label unattached $0.08 3e Barcode attached $0.:L0 3f Barcode unattached $0.08 3g Ownership label attached $0.:L0 3h Ownership label unattached $0.08 ~ Theft detection attached $0.49 ~3 'l'heft detection unattached $0.45 3k Plastic covering for Paperbacks $:L.99 31 Laminated Paperback Covers $:L.99 SHIPMENT 2-9 Days AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET September 21, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider approval of an exaction variance of Section 35.20.2 (L.3.a.) of the Code of Ordinance concerning improvements to a perimeter street. The parcel is located on the proposed southwest comer of Centre Point Drive and Inman Street. The property is currently designated as a Downtown Commercial General (DC-G) zoning district. The Planning and Zoning Commission recommends approval of the variance with a condition (7-0) (V04-0021). BACKGROUND Applicant has requested an exaction variance from section 35.20.2(L.3.a.) of the Development Code, regarding relief from the installation of Inman Street along the north frontage of the lot, west of the proposed Inman Street driveway. The Development Code requires an applicant for 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." Developer desires to construct only a portion of the required perimeter street. A detailed request letter from the applicant is included as Attachment 5. Inman Street is a proposed four (4)-lane commercial collector street that will continue west of this parcel as development occurs. The west side of the property is in a drainage area and will not be developed but improved only for drainage purposes. Because of the costs of the paving and the required drainage improvements to the west side of the roadway, the applicant has requested relief from the requirement to construct these improvements. The applicant has agreed to construct Inman Street to its full width of 44 feet rather than the required 25 feet for the portion that he will construct from Centre Place Drive to the proposed hotel driveway. The improvements to Inman, west of the proposed driveway are not required to serve the property at this time. A developer's agreement (Attachment 6) has been signed by the applicant to address the future construction of Inman at this location. The City Council may approve an exaction variance if the following criterion is met: b) Criteria for variances from development exactions. Where the commission finds that the imposition of any development exaction pursuant to these regulations exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted, it may recommend approval of variances to waive such exaction's, so as to prevent such excess, to the City Council. 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 of 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. Page 1 OPTIONS 1. Approve full variance 2. Approve full variance with conditions (staff and P&Z recommendation) 3. Approve a partial variance 4. Deny variance RECOMMENDATION Staff recommends approval of the exaction variance for the construction of improvements to Inman Street from the west end of the driveway return on Inman Street to the west property line of this parcel, with the condition that: When any additional property in the boundary of the approved preliminary plat west of Center Place Drive is final platted the following will occur: a. Construction plans for these road improvements will be submitted and approved with the plat, b. Development contracts for these improvements will be executed and approved prior to filing the plat and c. Construction of these improvements will be accomplished with construction of that development prior to issuance of a certificate of occupancy. PRIOR ACTION/REVIEW On August 11, 2004, the Planning and Zoning Commission recommend approval of the variance (7 - 0), with the above condition. FISCAL INFORMATION The approximate cost of the improvements associated with this variance is $89,000.00. This variance, if approved with the recommended condition will only postpone construction of the subject improvements. There is no fiscal impact on the city. ATTACHMENTS 1. Location map #1 2. Location map #2 3. Street construction limits 4. Plat 5. Applicant's letter 6. Developers Agreement 7. Planning and Zoning Commission minutes Prepared By: David Salmon, Assistant Director Engineering Respectfully submitted: Kelly Carpenter, AICP Director Planning and Development Page 2 © ~ uov,AaN 1,S pUgI~A@IO Ill a^.uo aOeld a~lua0 P^I~ ~e~ ~ueS ~ pJeU JOl~ Z © !'1 il ii /I APPLICANT' S LETTER # 1 ATTACHMENT #5 Friday, July 16, 2004 Chairman and Commissioners, Planning and Zoning Commission City Staff City of Denton Re: Variance for extension of Inman street across lot. To Whom It May Concern: 1. Granting the variance wilt not be detrimental to the public safety, health, or welfare or injurious to other property. The variance will not be detrimental to the safety, health, welfare, nor be injurious to other property. Right of way would be dedicated and street improvements made to allow public and fire lane access into and out of the hotel site. Improvements to convey drainage to detention facility downstream will be constructed. 2. The conditions upon which the request for a variance is based are unique to the property for which the variance is sought and are not applicable generally to other property. Property location adjacent to Up/and Habitat and Detention facility and to undeveloped commercial property to the south and the realignment of Inman is unique to any other part of the City. 3. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of these regulations is carried out. As mentioned above, due to the upstream (south) development and the requirement for lnman (or another collector sized street) to be relocated or located to comply with the requirements of the development code, extensive drainage improvements increase the difficulty of extending tnman past the hotel's entry point_ (See Exhibit attached) The downstream (north) pond was designed to safely convey the drainage from this, and the rest of the original Centre Place development. Further no traffic except for the Hotel customers would utilize this street until another phase of Denton Station is constructed, at which time the road would be extended. (Adjacent property is owned by this property owner.) 4. The variance will not in any manner vary the provisions of the Zoning Ordinance, Denton Development Plan, Master Plan or Studies, except that those documents may be amended in the manner prescribed by law. The site is not varying except as stated for shortening the length of road constructed. GREG EDWARDS ENGINEERING SERVICES, INC. 1621 AMANDA COURT PONDER TEXAS 76259 P940.482.2907F940.482.8128 WWW. GEES, US 5. The special or peculiar conditions upon which the request is based did not result from or were not created by the act or commission of the owner or any prior owner, subsequent to the date of creation of the requirement from which a variance is sought. Variance is being sought due to upstream and adjacent conditions which did not result from our design. NOTE: Request must include the following: § Completed application (one per variance). § Fee as adopted by the Council and published in the Development Review Fee Schedule. § Copy of the proposed plat and location map. Sincerely ? Allen R. Bussell GEES, Inc. GREG EDWARDS ENGINEERING SERVICES, INC. '1 (~2.1 AMANDA COURT PONDER TEXAS 76259 P940.482.2907F940.482,8128 WWW. GEES. US C:~Documents and Settlngs\phwillia\Local Settings\Temp\Teasley Partnets-offsite improvements agreement.doc AGREEMENT FOR OFF-SITE PUBLIC IMPROVEMENTS AND RESTRICTIVE COVENANTS THIS AGREEMENT (the "Agreement") is made by and between TEASLEY PARTNERS, LTD., a Texas limited partnership (the "Developer") and the CITY OF DENTON, TEXAS, a home role municipality, located in the Denton County, Texas (the "City"), as of the Effective Date provided below, upon the terms and conditions set forth herein. WHEREAS, the Developer is the owner and developer of approximately 27.120 acres of real property located in the Alexander Hill Survey, Abstract No. 623 in the City of Denton, Denton County Texas which received preliminary plat approval on March 29, 2004, which preliminary plat is on file in the Offices of the City of Denton Department of Planning and Development, 22i N. Elm, Denton, Texas 76201 (the "Planning Office") and which is incorporated herein by reference (the "Preliminary Plat" or "Preliminary Plat Property"); and WHEREAS, the Developer has applied for final plat approval on an approximate 5.602 portion of the Preliminary Plat Property, which is called "Lot 1, Block A, the Holiday Inn at Denton Station" the original of which is on file in the Planning Office which is incorporated herein by reference, a copy of which is attached hereto and made a part hereof as Exhibit "A" (the "Final Plat" or "Final Plat Property"); and WHEREAS, the Developer has made application for a conditional variance to defer construction of street improvements for Inman Street which is adjacent to the north side of the Final Plat Property (35.6 feet of which is being dedicated for street purposes with the Final Plat, hereinafter called the "Inman Street Right-of-Way"), which street improvements are 25 feet in width from back of curb to edge of pavement as required by the City of Denton Development Code (the "Inman Street Improvements") until other portions of the Preliminary Plat Property receive final plat approval (the "Variance"); and WHEREAS, the City's Planning and Zoning Commission recommended to the City Council that the Variance be granted and that the Final Plat be conditionally approved subject to the approval of the Variance by the City Council and subject to the Developer agreeing to the terms and conditions of this Agreement; and WHEREAS, the City Council approved the Variance; and WHEREAS, the Developer and the City have entered into this Agreement to set forth certain restrictions that will be placed upon the remainder of the Preliminary Plat Property in order to put subsequent purchasers on notice of the requirements for the construction of the Inman Street Improvements within the Imnan Street Right-of-Way at the time of final approval for the remainder of the Preliminary Plat Property; C:~)ocuments and Settings\phwillmkLocal SetIings\Terap\Teasley Partners-off slte improvements agreement,doc NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Restrictive Covenants. The Developer has received Final Plat approval of the Final Plat Property subject to the following conditions which are voluntarily agreed to by the Developer, which conditions are covenants touching and running with the land described as those portions of the Preliminary Plat Property particularly described by metes and bounds in Exhibit "B" attached hereto and made a part hereof by reference (the "Restrictive Covenant Property"), and shall be binding on all parties having any right, title or interest in the Restrictive Covenant Property or any part thereof, either now or in the future (the "Restrictive Covenants"). The Restrictive Covenant Property is generally depicted on the Preliminary Plat as Lot 4, Block A, Lot 1, Block B and Lot 1, Block C. When any part of the Restrictive Covenant Property receives final plat approval (the "Subsequent Final Plat" or "Subsequent Final Plat Property") the owner of such Subsequent Final Plat Property shall be responsible for the construction of thc Inman Street Improvements within the Inman Street Right-of-Way. These construction requirements are in addition to any other construction requirements for Inman Street that may be required by the Denton Development Code, including the other 25 feet of pavement for the northern half of Inman Street. City standard three way development contracts must be fully signed and approved prior to the recording of the Subsequent Final Plat and construction of these street improvements must be completed by the developer of the Subsequent Plat Property and accepted by the City prior to thc issuance of a certificate of occupancy on thc Subsequent Final Plat Property. This Agreement shall be recorded in the Real Property Records of Denton County, Texas. The Developer as the sole owner of the Restrictive Covenant Property, hereby declares that the Restrictive Covenant Property shall be held, sold and conveyed subject to the Restrictive Covenants and shah be binding upon all owners and future owners of the Restrictive Covenant Property and shall inure to the benefit of the City, its successors and assigns. Upon the fulfillment of the conditions contained in these Restrictive Covenants the City shall f'fle in the Real Property Records of Denton County a release releasing the Restrictive Covenants, and it shall not be necessary that the Developer, or its successors or assigns, join in any such release for same to release the Restrictive Covenants. 2. Notices. Any notice, demand or other communication required or permitted to be delivered hereunder (other than invoices to be delivered as hereinafter described) shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to each respective party, or sent via facsimile to the fax number set forth for each party, as follows: If to the City: With a copy to: Page 2 of 5 C:\Documents and Settings\phwillia\Local Settings~Temp\Teasley Partners-offsite improvements agreement.doe The City of Denton, Texas 215 E. McKirmey Denton, Texas 76201 Attention: City Manager Fax No.: (940) 349-8596 Edwin Snyder, Esq. Deputy City Attorney City of Denton, Texas Denton, Texas 76201 Fax No.: (940) 382-7923 If to the Developer: With copies to: Teasley Partners, Ltd. Glenn Gunter, Managing Partner 16306 E. Lake Shore Drive Austin, Texas 78734 Fax No.: 817.581.7954 Mike Blackwell Teasley Partners, LTD. P.O. Box 1484 Boyd, Texas 76023 Fax No.: 817.581.7954 Joseph Lacey Teasley Partners, Ltd. 16306 E. Lake Shore Drive Austin, Texas 78734 Fax No.: 817.581.7954 Any of the parties hereto may change their respective notice addresses for all communications by a notice delivered in accordance with the terms and conditions of this Section 2. 3. Applicable Law; Venue. 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 fully performable in Denton County, Texas. Exclusive venue for any lawsuit enforcing or interpreting any of the rights and obligations under this agreement shall be a court of competent jurisdiction in Denton County, Texas. 4. Binding Effect. 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. 5. Rule of Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, 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. 6. Sole Agreement. 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. 7. Time of the Essence. Time is of the essence in this Agreement. Page 3 of 5 C:\Documen~s and Settings\phwillialLoeal Settings\Temp\Teasley Partner~offsite improvements agreement.doc 8. Number and 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. 9. Incorporation of Recitals. The recitals in the preamble of this Agreement are substantive and are incorporated into the body of this Agreement by reference. EFFECTIVE as of the __ day of__ ., 2004 (the "Effective Date"). THE CITY OF DENTON, TEXAS By: Michael A. Conduff, City Manager 215 E. McKinney Denton, Texas 76201 Fax No. (940) 349-8596 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBE~~Ey By: -- [,_J ' TEASLEY ~.&R--Ij~J3RS, LTD,_...~._~ Glenn Gunter, Managing Partner Page 4 of 5 C:~Documcnts and Scttiags\phwillia~Local Settings\Temp\Teasloy Partners~off slte improvements agreerr~nt,doc ACKNOWLEDGMENTS STATE OF TEXAS COUNTY OFDENTON This instrument is acknowledged before me, on this day of ,2004 by Michael A. Conduff, City Manager of the City of Denton, a municipal corporation, on behalf of said municipal corporation. Notary Public in and for State of Texas STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on this . IIl~t day of ~(~/~_ .~. , 2004 by Glenn Gunter, the managing parmer of Teasley Partners LTD, a Texas limited partnership, on behalf of said limited partnership. ~-~..: '~":. :-' Notary Public, State ofTexas 8 X ~2.-"~.,~My Comm,ssion Exp 12-(:14-20048 Notary Public in and for St.ate of Page 5 of 5 Exhibit A Exhibit B 25.357 ACRES BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND SITUATED IN THE ALEXANDER HILL SURVEY, ABSTRACT NUMBER 623, DENTON COUNTY, TEXAS, AND BEING PART OF A TRACT OF LAND DESCRIBED IN A DEED FROM LORENA LAND COMPANY TO TEASLEY PARTNERS, LTD. AS RECORDED IN VOLUME 4430, PAGE 1273 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, AND BEING ALL OF A TRACT OF LAND DESCRIBED IN A DEED FROM HENRY BARLOW AND MARTINA L. BARLOW TO TEASLEY PARTNERS, LTD. AS RECORDED IN VOLUME 4430, PAGE 1285 OF THE REAL PROPERTY RECORDS OF DENTON.COUNTY, TEXAS, AND BEING A PART OF LOTS 1 AND 2, BLOCK 1 OF THE SUMMIT ADDITION AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS AS RECORDED IN CABINET F, PAGE 308 OF THE PLAT RECORDS OF DENTON . COUNTY; TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A ~" IRON ROD FOUND FOR THE NORTHWEST CORNER OF SAID TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, 'PAGE 1285) AND BEING THE NORTHEAST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM MOLLIE JOSEPHINE BURGOON TO JARROD MACK JETER AS RECORDED IN VOLUME 4062, PAGE 1056 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AND BEI. NG IN THE SOUTH LINE OF DAUGHERTY STREET AS POSTED; THENCE NORTH 88 DEGREES 13 MINUTES 17 SECONDS EAST.WITH THE NORTH LINE OF. TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE'1285) AND THE SOUTH LINE OF DAUGHERTY STREET A DISTANCE OF 278.50 FEET TO A CAPPED ~" IRON ROD SET FOR THE NORTHEAST CORNER OF SAID TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE 1285); THENCE SOUTH 00 DEGREES 13 MINUTES 26 SECONDS EAST WITH THE EAST LINE OF TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE 1285) A DISTANCE OF 19.920 FEET TO A CAPPED ~" IRON ROD SET FOR THE WESTERLY NORTHWEST CORNER OF SAID SUMMIT ADDITION; THENCE NORTH 87 DEGREES 21 MINUTES 37 SECONDS EAST A DISTANCE OF 40.01 FEET TO A CAPPED ~" IRON ROD SET FOR AN ELL CORNER OF SAID ADDITION AND BEING WHERE THE STREET TURNS NORTHERLY AND IS POSTED AS JOHNSON STREET; THENCE NORTH 01 DEGREES. 18 MINUTES 10 SECONDS WEST WITH THE EAST LINE OF JOHNSON STREET A DISTANCE OF 117.07 FEET TO A METAL FENCE CORNER POST FOR .THE NORTHERLY NORTHWEST CORNER OF SAID THE SUMMIT ADDITION AND BEING THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM OPAL ESTELLE LoTT, A TRUSTEE TO OPAL ESTELLE LOTT, A WIDOW AS RECORDED iN VOLUME 4881, PAGE 172 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE NORTH 88 DEGREES 15 MINUTES 20 SECONDS EAST WITH THE NORTH LINE OF THE SUMMIT ADDITION A DISTANCE OF 1025.76 FEET TO A %" IRON ROD FOUND FOR THE NORTHEAST CORNER THEREOF AND BEING IN THE SOUTH LINE OF A TRACT OF LAND DESCRIBED IN A DEED FROM'ANN E. KELSEY TO ROBERT R. MCNAIRY AS RECORDED IN VOLUME 4793, PAGE 611 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 01 DEGREES 30 MINUTES 15 sECONDS EAST A DISTANCE OF 48.53 FEET TO A %" IRON ROD FOUND FOR CORNER AND BEING IN THE WEST LINE OF THE REpLAT OF BLOCK ONE FIRST INSTALLMENT WOODED ACRES SUBDIVISION AN ADDITION TO THE CITY OF DENTON, DENTON' COUNTY, TEXAS AS RECORDED IN VOLUME 8, PAGE 31, MAP RECORDS, DENTON COUNTY, TEXAS; THENCE SOUTH 48 DEGREES 17 MINUTES 08 SECONDS EAST A DISTANCE OF 13.92 FEET TO A ~" IRON ROD FOUND FOR CORNER IN THE WEST LINE OF SAID WOODED ACRES SUBDIVISION; THENCE SOUTH 01 DEGREES 36 MINUTES 46 SECONDS EAST A DISTANCE OF 324.39 FEET TO A X-CUT FOUND FOR CORNER IN THE WEST LINE OF SAID WOODED ACRES SUBDIVISION; THENCE SOUTH 43 DEGREES 49 MINUTES 57 SECONDS WEST A DISTANCE QF 6.61 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER IN THE WEST LINE OF SAID WOODED ACRES SUBDIVISION; THENCE SOUTH 88 DEGREES 36 MINUTES 59 SECONDS WEST A DISTANCE OF 4.12 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER IN THE NORTHERLY R.O.W. OF CENTRE PLACE DRIVE AND BEING THE BEGINNING OF A CURVE TO THE LEFT WITH A RADIUS OF 440.44 FEET AND A CHORD BEA:RING AND DISTANCE OF SOUTH 56 DEGREES 04 MINUTES 20 SECONDS WEST, 473.48 FEET; THENCE SOUTHWESTERLY WITH SAID CURVE AND SAID R.O.W. AN ARC DISTANCE OF 499.88 FEET TO A CAPPED ¼" IRON ROD SET FOR CORNER; THENCE NORTH 66 DEGREES 22 MINUTES 32 SECONDS WEST A DISTANCE OF 77.68 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER AND BEING THE BEGINNING OF A CURVE TO THE LEFT WITH A RADIUS OF 400.00 FEET AND A CHORD BEARING AND DISTANCE OF NORTH 78 DEGREES 16 MINUTES 05 SECONDS WEST, 164.86FEET; THENCE NORTHWESTERLY WITH SAID CURVE AN ARC DISTANCE OF 166.05 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER; THENCE SOUTH 89 DEGREES 50 MINUTES 22 SECONDS WEST A DISTANCE OF 326.04 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER; THENCE SOUTH 00 DEGREES 10 MINUTES 44 SECONDS EAST A DISTANCE OF .143.04' FEET TO A CAPPED ~" IRON ROD SET FOR CORNER; THENCE SOUTH 59 DEGREES 26 MINUTES 27 SECONDS WEST A DISTANCE OF 219.63 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER; THENCE SOUTH 00 DEGREES 33 MINUTES 10 SECONDS EAST A DISTANCE OF 144.49 FEET TO A ~" IRON ROD FOUND IN THE SOUTH LINE OF SAID TEASLEY PARTNERS, LTD. (VOLUME 4430, PAGE 1273) AND BEING IN THE NORTH LINE OF THE EXISTING INMAN STREET R.O.W. AND BEING THE NORTHERLY NORTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM CAMPUS PARK DENTON, LTD. TO CAMPUS PARK DENTON II, LTD., AS RECORDED IN VOLUME 4911, PAGE 1952 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 89 DEGREES 26 MINUTES 28 SECONDS WEST WITH SOUTH LINE OF SAID TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE 1273) AND THE NORTH LINE OF THE EXISTING INMAN STREET R.O.W. A DISTANCE OF 569.24 FEET TO A ~" IRON ROD FOUND FOR CORNER; THENCE NORTH 14 DEGREES 17 MINUTES 16 SECONDS EAST WITH SOUTH LINE OF SAID TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE 1273) AND THE NORTH LINE OF THE EXISTING INMAN STREET. R.O.W.A DISTANCE OF 24.25 FEET TO A ~" IRON ROD FOUND FOR CORNER; . THENCE SOUTH 89 DEGREES 11 MINUTES 26 SECONDS WEST WiTH SOUTH LINE OF SAiD TEASLEY PARTNERS, LTD.TRACT (VOLUME 4430, PAGE 1273) AND THE NORTH LINE OF THE EXISTING INMAN STREET R.O.W.A DISTANCE OF 470.75 FEET TO A PK NAIL SET FOR CORNER NEAR THE CENTER OF AN ASPHALT ROAD POSTED AS DAUGHERTY STREET AND BEING IN THE EASTERLT R.O.W. LINE OF TEXAS AND PACIFIC RAILROAD; THENCE NORTH 17 DEGREES 24 MINUTES 11 SECONDS EAST ALONG OR NEAR THE CENTER OF SAID STREET AND THE EASTERLY R.O.W. UNE OF SAID RAILROAD A DISTANCE OF 438.89 FEET TO A CAPPED ~" IRON ROD SET FOR THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM MCNEILL'S FURNITURE AND APPLIANCES OF DENTON, INC. TO VPS PARTNERS, LTD., AS RECORDED IN VOLUME 4463, PAGE 1810 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 77 DEGREES 41 MINUTES 13 SECONDS EAST WITH THE SOUTH LiNE OF SAID VPS PARTNERS, LTD. TRACT A DISTANCE OF 280.24 FEET TO A 5/8" IRON ROD FOUND FOR THE SOUTHERLY SOUTHEAST CORNER THEREOF; THENCE NORTH 07 DEGREES 38 MINUTES 59 SECONDS EAST A DISTANCE OF 22.89 FEET TO A 1t2" IRON ROD FOUND FOR THE ELL CORNER OF SAID VPS PARTNERS, LTD. TRACT; THENCE SOUTH 89 DEGREES 29 MINUTES 49 SECONDS-EAST WITH THE SOUTH LINE OF SAID VPS PARTNERS, LTD. TRACT A DISTANCE OF 62.63 FEET TO A METAL FENCE CORNER POST FOR THE EASTERLY SOUTHEAST CORNER THEREOF AND BEING THE SOUTHWEST CORNER OF LOT 1 OF DAUGHERTY ADDITION AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, AS RECORDED IN CABINET B, PAGE 202, PLAT RECORDS, DENTQN COUNTY, TEXAS; THENCE NORTH 89 DEGREES 35 MINUTES 30 SECONDS EAST WITH THE SOUTH LINE OF SAID ADDITIQN A DISTANCE OF 363.17 FEET TO A METAL FENCE CORNER POST FOR THE SOUTHEAST CORNER OF LOT 2 OF OF SAiD ADDIT~ON AND BEING THE SOUTHWEST CORNER OF SAID TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE 1285); THENCE NORTH 01 DEGREES 08 MINUTES 33.SECONDS WEST WITH THE EAST LINE OF SAID LOT 2 OF SAID ADDITION AND THE WEST LINE OF SAID TEASLEY PARTNERS, LTD. TRACT (VOLUME 4430, PAGE 1285) A'DISTANCE OF 301.46 FEET TO A METAL FENCE CORNER POST FOR AN ANGEL BREAK IN THE WEST LINE THEREOF AND BEING THE SOUTHEAST CORNER OF SAID JARROD'MACK JETER TRACT; THENCE NORTH 03 DEGREES 09 MINUTES 00 SECONDS WEST WITH THE EAST LINE OF SAID JARROD MACK JETER TRACT A DISTANCE OF 151.57 FEET TO THE POINT OF BEGINNING AND ENCLOSING 25.357 ACRES OF LAND MORE OR LESS, SAVE & EXCEPT THE FOLLOWING DESCRIBED TRACT OF LAND; BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND SITUATED IN THE ALEXANDER HILL SURVEY, ABSTRACT NUMBER 623, DENTON COUNTY, TEXAS, AND BEING PART OF A TRACT OF LAND DESCRIBED IN A DEED FROM LORENA LAND COMPANY TO TEASLEY PARTNERS, LTD. AS RECORDED IN VOLUME 4430, PAGE 1273 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A CAPPED ~" IRON ROD FOUND FOR THE NORTHWEST CORNER OF THE HEREIN DESCRIBED TRACT AND BEING NEAR THE CENTER OF A ASPHALT ROAD POSTED AS DAUGHERTY STREET AND BEING IN THE EASTERLY R.O.W. LINE OF TEXAS AND PACIFIC RAILROAD AND BEf. NG THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM MCNEILL'S FURNITURE APPLIANCES OF DENTON, INC. T© VPS PARTNERS, LTD. AS RECORDED IN VOLUME 4463, PAGE 1810 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 77 DEGREES 41 MINUTES 13 SECONDS EAST WITH THE SOUTH LINE OF SAID VPS PARTNERS, LTD. TRACT A DISTANCE OF 280.24 FEET TO A 5/8" IRON ROD FOUND FOR THE SOUTHERLY SOUTHEAST CORNER THEREOF; THENCE NORTH 07 DEGREES 38 MINUTES 59 SECONDS EAST A DISTANCE OF 22.89 FEET TO A 1t2" IRON ROD FOUND FOR THE ELL CORNER OF SAID VPS PARTNERS, LTD. TRACT; THENCE SOUTH 89 DEGREES 29 MINUTES 49 SECONDS EAST WITH THE SOUTH LINE OF SAID VPS PARTNERS, LTD. TRACT A DISTANCE OF 62.63 FEET TO A METAL FENCE CORNER POST FOR THE EASTERLY SOUTHEAST CORNER THEREOF AND BEING THE SOUTHWEST CORNER OF LOT 1 OF DAUGHERTY ADDITION AN ADDITION TO THE CITY' OF DENTON, DENTON COUNTY, TEXAS ACCORDING TO THE PLAT THEREOF RECORDED IN CABINET B, PAGE 202 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS; THENCE NORTH 89 DEGREES. 35 MINUTES 30 SECONDS EAST WITH THE SOUTH LINE OF SAID ADDITION A DISTANCE OF 363.17 FEET TO A METAL FENCE CORNER POST FOR THE NORTHEAST CORNER OF THE HEREIN DESCRIBED TRACT AND THE SOUTHEAST CORNER OF LOT 2 OF SAID ADDITION AND BEING THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM HENE.RY BARLOW AND MARTINA L. BARLOW TO TEASLEY PARTNERS, LTD. AS RECORDED IN VOLUME 4430, PAGE 1285 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS AND BEING THE BEGINNING OF A CURVE TO THE LEFT WITH A RADIUS OF 436.50 FEET A CHORD BEARING AND DISTANCE OF SOUTH 49 DEGREES 09 MINUTES 27 SECONDS WEST, 147.06 FEET; THENCE SOUTHWESTERLY WITH SAID CURVE AN ARC DISTANCE OF 147.76 FEET TO A CAPPED ~" IRON ROD SET FOR CORNER; HENCE SOUTH 39 DEGREES 27 MINUTES 34 SECONDS WEST A DISTANCE OF 148.24 FEET TO A CAPPED N" IRON ROD SET FOR CORNER AND BEING THE BEGINNING OF A CURVE TO THE RIGHT WITH A RADIUS OF 363.50 FEET A CHORD BEARING AND DISTANCE OF SOUTH. 64 DEGREES 27 MINUTES 03 SECONDS WEST, 307.14 FEET; THENCE SOUTHWESTERLY WITH SAID CURVE AN ARC DISTANCE OF 317.10 FEET TO A CAPPED %" IRON ROD SET FOR CORNER; THENCE SOUTH 89 DEGREES 26 MINUTES 31 SECONDS WEST A DISTANCE OF 339.63 FEET TO A PK NAIL SET FOR CORNER NF_AR THE CENTER OF SAID DAUGHERTY STREET AND BEING IN THE EASTERLT R.O.W. LINE OF TEXAS AND PACIFIC RAILROAD; THENCE NORTH 17 DEGREES 24 MINUTES 11 SECONDS EAST ALONG OR NEAR THE CENTER OF SAID STREET AND THE EASTERLY R.O.W. LiNE OF SAID RAILROAD A DISTANCE OF 399.73 FEET TO THE POINT OF BEGINNING AND ENCLOSING 4.641 ACRES OF LAND MORE OR LESS. PLANNING & ZONING MINUTES ATTACHMENT #6 4 5 6 7 9 10 11 12 13 14 16 17 15 19 20 21 22 23 24 1 2 3 4 5 6 7 g 9 11 12 13 14 15 16 CondenseltTM PROCEEDINGS I COMM~OS~ ~OWELL: This being Wcdn~day ~ 11~, 2~4 and 6:30 p.m,, I wiB o~n ~ Planning and ~ning ~ni~si~ m~ng and ask you fo~s, ify~ ~11,, ~ stand with n~ ~ salu~ ~ (~pon, ~e P~ of Al~i~ ~i~.) ~MM~ON~ ~tr: T~nk you ~ much. l~n No. ~ f~ ~i~t's ~ing is consi~ app~wl of~ minum f~ J~y 28~ 2004. I ha~ a nmtion or -- COMM~ON~ ROY: MOVe appeal. ~MMI~ION~POW~LL: Mr, ROy mo~ ~ppmval. Do I ~w a ~ond~ COMM[~O~ ~NO~ ~ond, 15 ~MMI~ON~ ~WEL~ ~m ~, Sffa~. 16 And if ~'s no discussion, Iql ask far a vo~. Moffon pas~ Now, ~al ~ ~sy s~ff is out of fl~ way, N~ble down an my ~ht and I be~ it's ~. ~ib~, ~o ~ts ~ on my 1~. ~d ~ ~ on ~a~. ~l's my ~st ~d. I ~ in ~ 23 ~st ~d ~ ago. Wc'~ pm~ ~ ~ ~u on ~d. 24 I~ N~ 3, ~n~t ~. I ~li~ Page 2 Mr. Roy has got a motion. ~OMMIS..q, IONER ROY: Y¢~. I wouk] like to pull I~ns 3~ B aM C f~m ~ ~ns~t ~ ~d I wo~ mow ~ appm~ ~ ~ns~t ~ 1~ 3D. · at me,on? ~MMI~IONER WATK~: ~MMi~IO~ ~WEL~ Mt. Wa~ ~t. Any discmsion? ~ing non~ I'[I call for a vo~. ~fion a~mv~ 7~. We'U staffOn this7 Mr. industrial what has lfth~ linc us~s 10 acres as Page 3 minimum plat. is not is staff is allowed MS. be more specific p~liminary plat ~ I, Addition. The And nothing ~ else. Any -- l'm sorry, ECl ZO~ District this site. the itt~ like a thc' of pl at,s? MS. VIERA: For what has v~ll plat must be ~ and Io any issued for this could you p[at is -- 22, if ~ plat by tbe tpprov~ that plat be signed by by ~ city A copy will be ~ fir~ fora with Rails to inter~ecl is ~ an and I would mint trot again iasc. And Ms. Viera MS/ER~ Chairman, ~ff would likc to state once the Comr~sion is a~out to consi&r mla~/g5 tl~ subdivision cf th~ id~ties tl~ param~ 14 15 16 17 23 flaring z~que~t 24 24 25 lobe 25 PLANNING AND ZONING AUGUST 1 ITH, 2004 MINUTES ~bank you. ;t~ ~u~stion f~jl~fthc Chah', This particular pla~, how~'v~d'is not a gas v~ll / RRAr That's COrraL ~just a / COMMI~ION~q, POWEL~I appvr~iate that, ~lk you vo'y mtlch. I und~and w0 have. a _man like to speak on thia iasc. f[l nak for consent fr~a. you, Please como~, gi¥~ tls your naln~ and ad~s, sir. ~ss~o~ea ~OW~LL: ad s~k into the Page I - Page 4 AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistant City Manager SUBJECT Consider the adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton, Texas and JVC Real Estate LLC on approximately .4545 acre of land at the Demon Municipal Airport; and providing an effective date. (Lockheed) BACKGROUND John Vann, President of JVC Real Estate wishes to lease a parcel of land totaling approximately 19,800 square feet of land, 110 x 180, at the Denton Airport. The terms of the lease will obligate JVC Real Estate to construct a series of hangars 50 feet by 60 feet and 60 feet by 60 feet within 720 days. Total facility developmem will be a minimum of 9,000 square feet. This facility will be constructed for the purpose of commercial or general aviation aircraft storage and/or aviation related ventures. OPTIONS I. Approve the lease as proposed. II. Provide staff direction with additional lease options. RECOMMENDATION The Airport Advisory Board unanimously recommends approval of the lease as presemed. Airport Staff recommends approval of the lease as presented. ESTIMATED SCHEDULE OF PROJECT The lease would become effective September 21, 2004 and continue through the 20~h day of September 2034 (30 years). The lease also provides for two successive option terms often years each. PRIOR ACTION/REVIEW The Airport Advisory Board unanimously recommends approval of the proposed lease. The City Attorney's Office has reviewed the proposed lease. FISCAL INFORMATION The lease rate for the identified site is $0.148 per square foot per year. The lease rate for the first two years will be approximately $2,930.40 per year. The lease agreement provides for rate adjustments, Consumer Price Index adjustments, every other year for the term of the lease as per FAA requirement. EXHIBITS Ordinance Lease Agreement Attachment A Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Our DocumentsXOrdinances\04~.irport Lease-JVC-.4545 acre.doc ORDINANCE NO. AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND JVC REAL ESTATE, LLC. ON APPROXIMATELY .4545 ACRE OF LAND' AT THE DENTON MUNICIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an airport lease agreement for commercial operator between the City of Denton and JVC Real Estate, L.L.C. on approximately .4545 acre of land at the Denton Municipal Airport, in substantially the form of the Airport Lease Agreement which is attached to and made a part of this ordinance for all purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBEX, ~TORNEY BY: - S:\Our Documents\Contracts\04~kirport Lease4VC .4545 acre.doc A/RPORT LEASE AGREEMENT COMMERCIAL OPERATOR This Lease Agreement is made and executed to be effective this Twenty First day of September, 2004 (the "Effective Date") at Denton, Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", JVC Real Estate L.L.C., hereinafter referred to as "Lessee". W1TNESSETH: WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport (the "Airport") in the City of Denton, County of Denton, State of Texas; and WHEREAS, Lessee desires to lease certain premises at the Airport and construct and maintain an aircraft hangar and related aviation facil/ties thereon; NOW, THEREFORE, for and in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows: I. CONDITIONS OF LEASF. AGRF. F. MF. NIT NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS SECTION SHALL BE BINDING. A. PRINIClPI,F.~q OF OPERATIONS. The fight to conduct aeronautical and related activities for furnishing services to the public is granted to Lessee subject to Lessee agreeing: 1. To furnish said services on a fair, equal and not unjustly discriminatory basis to all users thereof; and To charge fair, reasonable and not unjustly discriminatory prices for each trait or service; provided, that Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. B. NON-D[qCRIMINIATION: Lessee, for itself, its personal representatives, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: 1. No person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; 2. In the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi- nation in Federally assisted programs of the Department of Transportation - Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. C. RIGHT OF INDWIDI IAI .S TO MAINTAIN AIRCRAFT, It is clearly understood by Lessee that no right or privilege has been granted which would operate to prevent any person, from or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform. D. NON-EXCIJINIVE RIGI-IT. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Title 49 U.S.C. Appendix § 1349. E. PI IFIl JC AREAS. Lessor reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or views of Lessee, and without interference or hindrance. Lessor shall be obligated to maintain and keep in good repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Lessee in this regard. During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the Airport which, in the opinion of Lessor, would limit the usefulness or safety of the Airport or constitute a hazard to aircraft or to aircraft navigation. 5. This Lease Agreement shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States or agency thereof, AIRPORT LEASE AGKEEMENT JVC LLC - Page 2 relative to the operation or maintenance of the Airport. 1I. LEASED PREMTSES Lessor, for and in consideration of the covenants and agreements herein contained, to be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease from Lessor, for the lease term described in Article l-II, the following described land situated in Denton County, Texas: A. 1 ~snd. A tract of Iand, being approximately 1 I0 feet by 180 feet, 19,800 square feet, or .4545 acres, drawn and outlined on Attachment "A", and legally described in Attachment "B," such attachments being incorporated herein by reference (the "Leased Premises"). Together with the right of ingress and egress to the Leased Premises; and the right in common with others so authorized of passage upon the Airport property generally, subject to reasonable regulations by the City of Denton and such rights shall extend to Lessee's employees, passengers, patrons and invitees. For purposes of this agreement, the term "Leased Premises" shall mean all property located within the metes and bounds described and identified within Attachment "B", including leasehold improvements constructed by the Lessee, but not including certain easements or property owned and/or controlled by the Lessor. A legal description of the leased premises is not currently attached as Attachment "B". Lessee shall deliver to Lessor no later then 30 days after the date of this Agreement a legal description of the leased premises accurately describing the leased premises that is acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this Agreement, in which case it will have no further force and effect. The approved legal description will be attached to this Agreement as Attachment "B". B. IMPROVEMENT~q PROVIDED FlY LESSOR: NONE: There will be no improvements provided by Lessor, except as set forth in Article/I.E. "Access to Utilities" below. For the purpose of this Lease Agreement, the term "Lessor improvements" shall mean those things on or adjacent to the Leased Premises belonging to, constructed by, or to be constructed by the Lessor, which enhance or increase, the value or quality of the Leased Premises. Unless otherwise noted herein, all Lessor improvements are and will remain the property of Lessor. Ali Lessor improvements must be described in detail above, or above referenced and attached to this Agreement in an exhibit approved by Lessor. C.. IMPRCIVF. MENTS PROVIDED ]qY I.F, SREE. On the Leased Premises, Lessee shall construct a hangar/office complex with a minimum of three (2) facilities totaling not less than 9,000 square feet, each facility shall be a minimum of 3,000 square feet, with tax/way access and appropriate culverts or drainage as required by City ordinances in the utility right of way south and north of the proposed hangar as well as other improvements as determined necessary by City ordinances (the "Lessee's Improvements"). Lessee's AIRPORTLEASEAGREEMENTJVC LLC - Page 3 Improvements shall be commenced no later than 270 days and completed no later than 720 days from the effective date of this Lease Agreement as evidenced by the issuance of a Certificate of Occupancy (the "Construction Period"). Notwithstanding anything contained in this Lease Agreement to the contrary, a failure to complete the Lessee's Improvements within the Construction Period may, at the sole option and discretion of the Lessor, result in the immediate termination and cancellation of this Lease Agreement upon 30 days written notice of cancellation to Lessee. In such case Lessee's rights under the Lease Agreement will immediately cease and be forfeited, and all of Lessee's Improvements shall immediately become the property of Lessor at no cost, expense or other compensation paid by Lessor to Lessee; and Lessee shall immediately vacate the Leased Premises. D. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the Leased Premises, easements for public access on roads and taxiways. E. ACCESS TO IJTIIJTIES. Lessor represents that there are water, sewer and 3- phase electricity lines within close proximity to the Leased Premises available to "tap-in" by Lessee, and that the same are sufficient for usual and customary service on the Leased Premises. Iff. TERM The term of this Lease Agreement shall be for a period of thirty (30) years, com- mencing on the 21st day of September, 2004 and continuing through the 20th day of September of 2034, unless earlier terminated under the provisions of the Lease Agreement (the "Lease Term"). Any attempt by Lessee to renegotiate this Lease Agreement shall be in writing addressed to the City Manager or his designee at least one hundred eighty (180) days before the expiration of the Lease Term, and at least 180 days before the expiration of any additional renegotiated period. Lessee has the option to renew for two (2) additional ten (10) year terms. The rental and terms to be negotiated shall be reasonable and consistent with the then value, rentals and terms of similar property on the Airport. IV. PAYMENTS: RF, NTAI,S ANT) FEES Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement, the following payments, rentals and fees: A. YAND RENITAt. shall be due and payable in the sum of $0.148 per square foot or $2,930.40 per year (the "Original Rent"), payable in twelve (12) equal monthly installments in the sum of Two Hundred and Forty Four Dollars and Twenty Cents ($244.20) in advance, on or before the 1st day of each and ever), month during the term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in whole on or before the 1st day of October, at the beginning of the City's fiscal year, each and every year of this Lease Agreement. AIRPORT LEASE AGREEMENT JVC LLC - Page 4 Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease rate per square foot, as adjusted by the CPI-U referenced in Section IV.C, times the number of square feet comprising all easements established in accordance with Article II (D). B. IJESSOR 1MPROVEMENT~q RENTALS. NONE: improvements on the Leased Premises. There are no Lessor C. PAYMF, NT: PENAt.TY> AD_II tSTMENTS. Ali payments due Lessor from Lessee shall be made to Lessor at the offices of the Finance Department of the City of Denton, Customer Service Division, 601 West Hickory, Denton, Texas, unless otherwise designated in writing by the Lessor. If payments are not received on or before the 15~h day of the ' month, a five percent (5%) penalty will be due as of the 16th. If payments are not received by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid rental/fee amount will be due. A one percent (1%) charge will be added on the first of each subsequent month until the unpaid rental/fee payment is made. The Original Rent for the Leased Premises shall be readjusted at the end of each one year period during the Lease Term on the basis of the proportion that the then current United States Consumer Price Index for all urban consumers (CPi-U) for the Dallas-Fort Worth Bureau of Labor Statistics bears to the previous odd month 2004 index, which was t79.1 .. (1982-84 = 100). Each rental adjustment, if any, shall occur on the 1st day of October, beginning 2006, and every other year thereafter on such date. The adjustments in the yearly rent shall be determined by multiplying the Original Rent by a fraction, the numerator of which is the index number for the last month prior to the adjustment, and the denominator of which is the index number applicable at the execution of this Lease Agreement. If the product of this multiplication is greater than the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of the next rental adjustment as called for in this section. If the product of this multiplication is less than the Original Rent there shall be no adjustment in the annual rent at that time, and Lessee shall pay the previous year's annual rent until the time of the next rental adjustment as called for in this section. In no event shall any rental adjustment called for in this section result in an annual rent tess than the previous year's annual rent. The adjustment shall be limited so that the annual rental payment determined for any given two-year period shall not exceed the annual rental payment calculated for the previous CPI adjustment by more than twenty percent (20%) percent.. If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort Worth geographical region, as compiled by the U.S. Department of Labor, Bureau of Labor Statistics, is discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the formula set forth above, but by substituting the index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For Ail '.Items For All Urban Consumers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas- Fort Worth geographical region and the U.S. City Average are discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the United States Department of Labor that AIRPORT LEASE AGREEMENT JVC LLC - Page 5 are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics concerning the purchasing power of the consumer dollar during the Lease Term, the remaining rental adjustments called for in this section shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor. V. RIGHTS AND OBLIGATIONS OF T,ESSF. R A. IISE OF t,F,A,qED PREMISES. Lessee is granted the non-exclusive privilege to engage in owner/operator activities providing the following aviation services: 1. Han?r Space I,easing_ Lessee is granted the non-exclusive right to rent hangar space. Office Space l,easing. Lessee is granted the non-exclusive fight to rent office space. 3. Tie-Down Services, Lessee is granted the non-exclusive right to charge for tie- down services on Lessee's property. Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct any services not specifically listed in this Lease Agreement. The use of the Leased Premises by Lessee, its tenants, employees, invitees or guests shall be limited to. only those private, commercial, retail or industrial activities having to do with or related to airports and avia- tion. No person, business or corporation may operate a commercial, retail or industrial business upon the Leased Premises or upon the Airport without a lease or license ~om Lessor authorizing such commercial, retail or industrial activity. The Lessor shall not unreasonably withhold authorization to conduct aeronautical or related services. B. STANDARDS. Lessee shall meet or exceed the following standards: Address Lessee shall file with the Airport Manager and keep current its mailing addresses, telephone numbers and contacts where it can be reached in an emergency. 2. ~ Lessee shall file with the Airport Manager and keep current a list of its tenants and sublessees. Conduct. Lessee shall contractually require its employees and sublessees (and sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee shall promptly enforce its contractual rights in the event of a default of such covenants. 4. Utilities: Taxes and Fees Lessee shall meet all expenses and payments in connection with the use of the Leased Premises and the rights and privileges AIRPORT LEASE AGREEMENT JVC LLC - ?age herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed. I.,anrs. Lessee shall comply with all current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, including rules, regulations and ordinances promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place all necessary and/or required licenses or pemfits. Maintenance of' Property. Lessee shall be responsible for the maintenance, repair and upkeep of all property, buildings, structures and improvements, including the mowing or elimination of grass and other vegetation on the Leased Premises, and shall keep the Leased Premises neat, clean and in respectable condition, free from any objectional matter or thing, including trash or debris. Lessee agrees not to utilize or permit others to utilize areas on the Leased Premises which are located on the outside of any hangar or building for the storage of wrecked or permanently disabled aircraft, aircraft parts, automobiles, vehicles of any type, or any other equipment or items which would distract from the appearance of the leased premises. Lessee agrees that at no time shall the Leased Premises be used for a flea market type sales operation. Painting of lquildings, During the Lease Term of this Lease Agreement and during each extension, Lessor shall have the right to require, not more than once every five years, that the metal exterior of hangar(s) or building(s) located on the Leased Premises be repainted. The Lessor may require Lessee to repaint said exteriors according to Lessor's specifications (to specify color of paint, quality of workmanship and the year and month in which the hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete the painting in accordance with such specifications within one (1) year of receipt of notice from Lessor. Lessee agrees to pay all costs and expense involved in the hangar or building painting process. Failure of Lessee to complete the painting required by Lessor, within the one (1) year period shall constitute Lessee's default under this Lease Agreement. ITnauthorized use of If,eased Premi.qe.q. Lessee may not use any of the Leased Premises for any use not authorized herein unless Lessor gives Lessee prior written approval of such additional use. Without limiting the foregoing the Leased Premises shall not be used for the operation of a motel, hotel, restaurant, private club or bar, apartment house, storage of recreational vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail, or other purposes, except as authorized herein. Dwelling~q. It is expressly understood and agreed that no dwelling or domicile may be built, moved to or established on or within the Leased Premises nor may lessee, its tenants, employees, invitees, or guests be permitted to reside or AIRPORT LEASE AGREEMENT JVC LLC - Page 7 remain as a resident on or within the Leased Premises or other Airport premises. Lessee may have a pilot lounge, including restroom and shower facilities for use by flight crew and passengers. 10. Quit Possession. Lessee shall quit possession of the Leased Premises at the end of the Lease Term or any renewal or extension thereof, or upon cancellation or termination of the Lease Agreement, and deliver up the Lease Premises to Lessor in as good condition as existed when possession was taken by Lessee, reasonable wear and tear excepted. 11. lndemniW. Lessee must indemnify, hold harmless and defend the Lessor, its officers, agents and employees, from and against liability for any and all claims, liens, suits, demands and/or actions for damages, injuries to persons (including death), property damage, (including loss of use), and expenses, including court costs, attorneys' fees and other reasonable costs, occasioned by or incidental to the Lessee's occupancy or use of the Leased Premises or the Airport and/or activities conducted in connection with or incidental to this Lease Agreement, including all such causes of action based on common, constitutional or statutory law, or based in whole or in part upon the negligent or intentional acts or omissions of Lessee, its officers, agents employees, invitees or other persons. Lessee must at all times exercise reasonable precautions on behalf of, and be solely responsible for, the safety of its officers, employees, agents, customers, visitors, invitees, licensees and other persons, as well as their property, while in, on, or involved in any way with the use of the Leased Premises. The Lessor is not liable or responsible for the negligence or intentional acts or omissions of the Lessee, its officers, agents, employees, agents, customers, visitors and other persons. The Lessor shall assume no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects, whether real or alleged, which may now exist or which may hereafter arise upon the Leased Premises, responsibility for all such defects being expressly assumed by the Lessee. The Lessee agrees that this indemnity provision applies to all claims, suits, demands, and actions arising from all premise defects or conditions. THE I.ESSOR AND THE I,ESSEE EXPR'ESSI,Y INTEND THIS INIDEMNITYPROVISION TO REQIiTRE I,ES~qEE TO INDEM-NFFY AND PROTECT THE LESSOR FROM THE CONEF. Ol[J-F. NCES OF THE I.F.S.qOR',q OWN NEGLIGENCE WHII.E I.ESSOR IR PARTICIPATING 1N THIS I.EASE AGREEMENT WHERE TI4AT NEGLIGENCE IS g CONCIIRR1NG CAI;SE OF THE INJIIR¥, DEATH: OR DAMAGE. N(-}TWITHSTANDING _THE TER M,q OF THE PRECEDING SENTE. NCES; THIS INDEMNITY PROVISION DOES NOT APPI.Y TO ANY CI.AIM; l.OS,q; DAMAGE: CAIISE OF ACTION, SI/IT AND I.IAlalIt.iTY WHERE THE INIIFRY, DEATH: OR DAMAGE RESIF[.TS FROM THE SOI.E NEGIJGF, NCE OF THE I,ESSOR OR ANY OF ITS AIRPORT LEASE AGREEMENT JVC LLC - Page 8 EMPIDYEES: CONTRACTORS, OR AGENTS, I Dq~VIIXED WITH THE FAII!,T OF ANY OTHFR PERSON OR ENTITY, 12. Chemical.q, Lessee agrees to properly store, collect and dispose of ali chemicals and chemical residues; to properly store, confine, collect and dispose of all paint, including paint spray in the atmosphere, and paint products; and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints. Further, the Lessee shall be solely responsible for all discharges, whether accidental or intentional, of any chemical and for the costs associated with the cleanup, remediation and disposal of said chemicals. 13. Hazardous Ac, hvities. Should Lessee violate any law, rule, restriction or regulation of the City of Denton or the Federal Aviation Administration, or any other regulatory authority, or should the Lessee engage in or permit other persons or agents to engage in activities which could produce hazards or obstruction to air navigation, obstructions to visibility or interference with any aircraft navigational aid station or device, whether airborne or on the ground, then Lessor shall state such violation in writing and deliver written notice to Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the Leased Premises who are causing said violation(s), and upon delivery of such written notice, Lessor shall have the right to demand that the person(s) responsible for the violation(s) cease and desist from 'all such activity creating the violation(s). In such event, Lessor shall have the right to demand that corrective action, as required, be commenced immediately to restore the Leased Premises into conformance with the particular law, rule or aeronautical regulation being violated. Should Lessee, Lessee's agent, or the person(s) responsible for the violation(s) fail to cease and desist from said violation(s) and to in'anediately commence correcting the violation(s), and to complete said corrections within twenty-four (24) hours following written notification, then Lessor shall have the right to enter onto the Leased Premises and correct the violation(s) at the sole cost and expense of Lessee, and Lessor shall not be responsible for any damages incurred to any improvements on the Leased Premises as a result of the corrective action process. In addition, such violation shall be considered a material default by Lessee authorizing Lessor, at its sole option and discretion, to immediately terminate and cancel this Lease Agreement. AIRPORT LEASE AGREEMENT JVC LLC - Page 9 C. SIGNS. No signs, posters, er other similar devices ("Signage") shall be placed on the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport property without the prior written approval of Lessor. Lessee, at its sole expense, shall be responsible for the creation, installation and maintenance of all such Signage. Lessee shall pay to Lessor any and all damages, injuries, or repairs resulting from the installation, maintenance or repair of any such Signage. Any Signage placed on the Leased Premises shall be maintained at all times in a safe, neat, sightly and good physical condition. All signage shall be removed from the Leased Premises by Lessee immediately upon receipt of instructions for removal of same from Lessor, including without limitation, upon expiration or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor may do so at the sole cost and expense of Lessee. Lessee shall be permitted the right to place two wall signs, no greater than thirty-two square feet each, identifying the commercial hangar operation. All signage shall comply with all applicable ordinances including the City of Denton sign ordinance." D. ENTRY. Lessor and its designees shall have the right to enter the Leased Premises upon reasonable advance notice (written or oral) and at any reasonable times for the purposes of inspecting the Leased Premises, performing any work which Lessor elects to perform under this Lease Agreement, and exhibiting the Leased Premises for sate, lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any work, which under any other provision of this Lease Agreement Lessee is required to perform, and any performance by Lessor shall not constitute a waiver of Lessee's default. VI. COVENANTS BY 1 Lessor hereby agrees as follows: A. PF, ACF, FI ~t, F. NJOYMF, NT. Upon on payment of all rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the Leased Premises and alt rights and privileges herein granted. B. COMPIJANCE. Lessor warrants and represents that in the establishment, construction and operation of the Airport, that Lessor has heretofore and at this time is complying with all existing rules, regulations, and criteria distributed by the Federal Aviation Administration, or any other governmental authority relating to and including, but not limited to, noise abatement, air rights and easements over adjoining and contiguous areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for any-action of trespass or similar cause of action by virtue of any aerial operations of adjoining property in the course of normal take-off and landing procedures fi.om the Airport; Lessor further warrants and represents that at all times during the Lease Term, or any renewal or extension of same, that it will continue to comply with the foregoing. AIRPORT LEASE AGREEMENT JVC LLC - Page 10 VII. SPF, CTAL CONDITIONS It is expressly understood and agreed by and between Lessor and Lessee that this Lease Agreement is subject to the following special terms and conditions. RIJNWAYS AND TAXPvVAYS_ Because of the present twenty thousand (20,000) pound continuous use weight bearing capacity of the taxiway of Lockheed, Lessee herein agrees to limit all aeronautical activity including landing, take-off and taxiing, to aircraft having an actual weight, including the weight of its fuel, of twenty thousand (20,000) pounds or less, until such time that the nmway and designated taxiways on the Airport have been improved to handle aircraft of such excessive weights. It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that Lessee agrees to abide by any such changes or revisions as such studies may dictate. "Aeronautical activity" referred to in this clause shall include any activity of the Lessee or its agents or subcontractors, and its customers and invitees, but shall not include those activities over which it has no solicitory part or control, such as an unsolicited or unscheduled or emergency landing. A pattern of violating the provisions of this section on two or more occasions shall be sufficient to cause the immediate termination of this entire Lease Agreement and subject Lessee to liability for any damages to the Airport that might result. VIII. LEASEHOLD IMPROVEMENTS A. REQI ;TREMENTS: Before commencing the construction of any improvements on the Leased Premises including Lessee's Improvements (the "Lease Improvements"), Lessee shall submit: Documentation, specifications, or design work, to be approved by the Lessor, which shall establish that the improvements to be built or constructed upon the Leased Premises are in conformance with the overall size, shape, color, quality and design, in appearance and structure of the program established by Lessor on the Airport. 2. All plans and specifications showing the location upon the Leased Premises of the proposed construction and improvements; 3. The estimated cost of such construction. No construction may commence until Lessor has approved the plans and specifications and the location of the Lease Improvements, and the estimated costs of such construction. Approval by the Lessor shall not be un_reasonably withheld. Documentary evidence of' the actual cost of construction on public areas only (such as taxiways) shall be delivered by Lessee to Lessor's City Manager from time to time as 'such costs are paid by Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he shall have found to have been paid by Lessee, and the findings of the City Manager when AIRPORT LEASE AGREEMENT JVC LLC - Page 11 endorsed by him upon said contract Shall be conclusive upon all parties for all purposes of this Lease Agreement. No later than 30 days after completion of the Lease Improvements, Lessee shall submit to Lessor detailed as built plans of the Lease Improvements and documentary evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements ("Cost to Construct Lease Improvements"). B. ADDITIONAL CONSTRIICTIiDN OR IMPROVEMENTS: Lessee is hereby authorized to construct upon the Leased Premises, at its own cost and expense, buildings, hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this Lease Agreement, provided however, Lessee shall comply with all of the requirements of Section ViII.A., above. Such additional improvements shall be a part of the Lease Improvements. C. OWNERSHIP OF1MPROVEMF. NTS: Except as otherwise provided in this Lease Agreement, the Lease Improvements constructed upon the Leased Premises by Lessee shall remain the property of Lessee during the Lease Term subject to the following conditions,, terms and provisions: 1. Removal of BuiTdings. No building or permanent fixture may be removed from the Leased Premises. A.~qnmption. The Lease Improvements shall automatically become the property of Lessor absolutely free, without any cost to Lessor, at the end of the Lease Term, or any extension thereof. Failure to Complete I.essee's Improvements. The Lease Improvements shall irmnediately become the property of Lessor at no cost, expense, or compensation to Lessee should Lessee fail to complete the Lessee's Improvements within the Constructi°n Period as provided in Section II.C of this Lease Agreement. Cancellation or Termination. Should this Lease Agreement be cancelled or terminated before the end of the Lease Term, or extension thereof, Lessor shall have the right to purchase all of the Lease Improvements. In the event of a cancellation or termination, other then due to a default by Lessee that has not been cured as provided below, the purchase price shall be equal to the most recent value of the Lease Improvements as determined by the Denton County Central Appraisal District ("Value of the Lease Improvements') reduced by 1/30 for each year of the Lease Term that has expired as of the date of termination (the "Purchase Price"). Should the Denton County Central Appraisal District not determine a separate value for the Lease Improvements then the Purchase Price will be determined taking the Cost to Construct the Lease Improvements reduced by 1/30 for each year the Lease Term has expired as of the date of termination. If the termination or cancellation is due AIRPORT LEASE AGREEMENT JVC LLC - Page 12 to a default by Lessee that has not been cured within 30 days after written notice of default to Lessee, then the Purchase Price as determined above shall be reduced by 50%. IX. SIIBROGATION OF MORTGAGEE Any person, corporation or institution that lends money to Lessee for construction of any hangar, structure, building or improvement and retains a security interest in said hangar, structure, building or improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon the Leased Premises and operate or manage said hangar, structure, building or improvement according to the terms of this Lease Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid in full, whichever comes first, but in no event longer than the Lease Term. It is expressly understood and agreed that the right of the mortgagee referred to herein is limited and restricted to those improvements constructed with funds borrowed from mortgagee, those improvements purchased with the borrowed funds, and those improvements pledged to secure the refinancing of the improvements. X. RIGHT OF F.A~qRMENT Lessor shall have the right to-establish easements, at no cost to Lessee, upon the Leased Premises for the purpose of providing underground utility services to, from or across the Airport property or for the construction of public facilities on the Airport. However, any such easements shall not interfere with Lessee's use of the Leased Premises and Lessor shall restore the property to the original condition as is reasonable practicable upon the installation of any utility services on, in, over or under any such easement at the conclusion of such construction. Construction in or at the easement shall be completed within a reasonable time. XL ASSIGNMENT OF I,F. ASF, Lessee expressly covenants that it will not assign this Lease Agreement, convey more than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise, transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose, except for rental of hangar space or tie-down space for storage of aircraft only, without the written consent of Lessor. Lessor agrees that it will not unreasonably withhold its. approval of such sale, sublease, transfer, license, or assignment of the facilities for Airport related purposes; provided however, that no such assignment, sublease, transfer, license, sale or otherwise shall be approved if the rental, fees or payments, received or charged are in excess of the rental or fees paid by Lessee to Lessor under the terms of this .lease, for such portion of the Leased. Premises proposed to be assigned, subleased, transferred, licensed, or . otherwise. The provisions of this Lease Agreement shall remain binding upon the assignees, if any, of Lessee. AIRPORT LEASE AGREEMENT JVC LLC - Page 13 XH. IN,ql IR ANCE A. REQI IIRED INSI IR ANCE: Regardless of the activities contemplated under this Lease Agreement, Lessee shall maintain continuously in effect at all times during the term of this agreement, at Lessee's sole expense, the following minimum insurance coverages: Commercial (Public) General Liability covering the Lessee or its company, its employees, agents, tenants and independent contractors, and its operations on the airport. Coverage shall be in an amount not less than $1,000,000 per occurrence and provide coverage for premises/operations and contractual liability AND where exposure exists, coverage for: products/completed operations; explosion, collapse and underground property damage. All risk property insurance on a replacement cost basis coveting loss or damage to all facilities used by the Lessee, either as a part of this agreement or erected by the Lessee subsequent to this agreement. Under no circumstances shall the Lessor be liable for any damages to fixtures, merchandise or other personal property of the Lessee or its tenants. 3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non- Owned Autos and Hired Cars: For operation in aircraft movement areas the limit of liability shall be $100,000 per occurrence. For other operations the limit of liability shall be consistent with the amount set by State Law. B. ADDITIONAL COVERAGES: In addition to the above referenced coverages, the following insurance is required if the activity or exposure exists or is contemplated: Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public) General Liability shall include coverage or separate coverage shall be provided for Environmental Impairment Liability. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of $I,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an amount of $I00,000 per person (per passenger seat) shall be provided. Aircraft Rental or Flight Training - Aircraf~ Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability, Passenger Liability in the amount of $100,000 per person (per passenger seat) and Student/Renter Liability covering all users in the amount of $500,000 per occurrence. 4. Specialized Conunercial Flying (including crop dusting, seeding, and spraying, AIRPORT LEASE AGREEMENT JVC LLC - Page 14 banner towing and aerial advertising, .aerial photography and surveying, fire fighting, power line or pipe line patrol) - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an amount of $100,000 per person (per passenger seat) shall be provided. 5. Aircraft Storage, Maintenance and/or Repair - Aireraf~ Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Hanger Keepers Liability in the amount of $500,000 per occurrence shall be provided, This requirement shall not apply to individual owner/operators who provide minimal incidental aircraft storage with or without a fee. C. COVERAGE REQI TIREMENTS: All insurance coverages shall comply with the following requirements: All liability policies shall name the City of Denton, and its officers and employees as an additional named insured and provide for a minimum of 30 days written. notice to the City of any cancellation or material change to the policy. All insurance required by this Lease Agreement must be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas. All policies are subject to the examination and approval of the City's office of Risk Management for their adequacy as to content, form of protection and providing company. Required insurance naming the City as an additional insured must be primary insurance and not contributing with any other insurance available to the City whether from a third party liability policy or other. Said limits of insurance shall in no way limit the liability of the Lessee hereunder. The Lessor shall be provided with a copy of ail such policies and renewal certificates. Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease Agreement. During the Lease Term, or any extension thereof, Lessor herein reserves .the right to, with 60 days notice, adjust or increase the liability insurance amounts required of the Lessee, and to require any additional rider, provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by Lessor; provided however, that any requirements shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal Airport in size and in scope of aviation activities, located in the southwestern region of the United States. XIH. CANCEtJJATION FlY T.F~,q,qC)R AIRPORT LEASE AGREEMENT JVC LLC - Page 15 In the event that Lessee shall file a voluntary petition in bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated banlcmpt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any Federal reorganization act, or Lessee shall be divested of its estate herein by other operation of law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or conditions herein contained, or on its part to be performed, the Lessor may give Lessee written notice to correct such condition or cure such default and, if any condition or default shall continue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may terminate this Lease Agreement by written notice to Lessee. In the event of default, Lessor has the right to purchase any or all of the Lease Improvements under the provisions of Section Vlll. C.4. hereof. XIV. CANCEIJ.ATION PlY ¥.ESRF, E Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of its obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of any one of the following events: (1) issuance by any court of competent juris- diction of a permanent injunction in any way preventing or restraining the use of the Airport or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or agreements contained herein and the failure of Lessor to remedy such breach for a period of ninety (90) days after receipt of a written notice of the existence of such breach; (3) the inability of Lessee to use the Lease Premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, role or regulation of any apprOpriate governmental authority having jurisdiction over the operations of Lessor or due to war, earthquake or other casualty; or (4) the assumption or recapture by the United States Government, or any authorized agency thereof, of the maintenance and operation of said airport and facilities or any substantial part or parts thereof. Upon the happening of any of the four events listed in the preceding paragraph, such that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its terms, except, however, that the use of the Leased Premises shall not be limited to aviation purposes, their use being only limited by such laws and ordinances as may be applicable at that time. XV. MISCEI J ,ANEOI IS PR OVISTON~q A. ENTIRE AGREEMENT. This Lease Agreement constitutes the entire understanding between the parties and as of its Effective Date supersedes all prior or · independent Agreements between the parties covering the subject matter hereof. Any change or modification hereof shall be in writing signed by both parties. B. PllNDING EFFECT. All covenants, stipulations and agreements herein shall extend to, bind and inure to the benefit of the legal representatives, successors and assigns of the respective parties hereto. AIRPORT LEASE AGREEMENT JVC LLC - Page 16 C. SEVERABIIJTV. Ifa provision hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Lease Agreement shall not be void; but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. D. NOTICE. Any notice given by one party to the other in connection with this Lease Agreement shall be in writing and shall be sent by certified mail, return receipt requested, with postage fees prepaid or via facsimile as follows: 1. If to Lessor, addressed to: City Manager City of Denton 215 E. McKinney Street Denton, Texas 76201 Fax No.940.349.8596 2. If to Lessee, addressed to: JVC Real Estate L.L.C. John A. Vann, Ph.D, President 1424 Gables Court Plano, Texas 75075 Phone (972) 599-9550 Fax No. (972) 964-i928 E. HF. AD1NGS. The headings used in this Lease Agreement are intended for convenience of reference only and do not define or limit the scope or meaning of any provision of this Agreement. F. GOVERNING I.AW AND VF..N'[JE. This Lease Agreement is to be construed in accordance with the laws of the State of Texas and is fully performable in Denton County, Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease Agreement shall be a court of competent jurisdiction in Denton County, Texas. G. NO WAWFR. No waiver by Lessor or Lessee of any default or breach of covenant or term of this Lease Agreement may be treated as a waiver of any subsequent default or breach of the same or any other covenant or term of this Lease Agreement. H. NO AGF. NICY. During all times that this Lease Agreement is in effect, the parties agree that Lessee is and shall not be deemed an agent or employee of the Lessor. IN WITNESS WHEREOF, the parties have executed tiffs Lease Agreement as of the Effective Date first above written. AIRPORT LEASE AGREEMENT JVC LLC - Page 17 CITY OF DENTON, TEXAS, LESSOR BY: MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY JVC Real Estate, L.L.C. BY" dent AIRPORT LEASE AGREEMENT JVC LLC - Page 18 ACKNOWLEDGMENTS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ~ day of Michael A. Conduff, City Manager of the City of Denton, Texas, on municipality. ., 2004, by behalf of said NOTARY PUBLIC, STATE OF TEXAS THE STATE OF TEXAS § COUNTY OF DENTON § This' instrument was acknowledged before me on the John A. Vann, President, JVC ReaI Estate L.L.C. day of~, 2004 by PUBL~C~ STATE OF TEXAS AIRPORT LEASE AGREEMENT JVC LLC - Page 19 Attachment A - Lockheed U.Tt SITE L J 1 ......... .570 ULTIMATE IBUILDINGS/FACILITE$ AIRPORr 'SPONSOR TERMINAL AREA DRAWING "~-- DENTON AIRPORT DENTON, TEXAS ~ .......... SHEET f ~ OF' AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistant City Manager SUBJECT Consider the adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton, Texas and JVC Real Estate LLC on approximately 1.2396 acres of land at the Demon Municipal Airport; and providing an effective date. (Skylane) BACKGROUND John Vann, President of JVC Real Estate wishes to lease a parcel of land totaling approximately 54,000 square feet of land, 180 x 300, at the Denton Airport. The terms of the lease will obligate JVC Real Estate to construct a series of hangars 50 feet by 60 feet and 60 feet by 60 feet within 720 days. Total facility developmem will be a minimum of 27,000 square feet. This facility will be constructed for the purpose of commercial or general aviation aircraft storage and/or aviation related ventures. OPTIONS I. Approve the lease as proposed. II. Provide staff direction with additional lease options. RECOMMENDATION The Airport Advisory Board unanimously recommends approval of the lease as presemed. Airport Staff recommends approval of the lease as presented. ESTIMATED SCHEDULE OF PROJECT The lease would become effective September 21, 2004 and continue through the 20~h day of September 2034 (30 years). The lease also provides for two successive option terms often years each. PRIOR ACTION/REVIEW The Airport Advisory Board unanimously recommends approval of the proposed lease. The City Attorney's Office has reviewed the proposed lease. FISCAL INFORMATION The lease rate for the identified site is $0.12 per square foot per year. The lease rate for the first two years will be approximately $6,480 per year. The lease agreement provides for rate adjustments, Consumer Price Index adjustments, every other year for the term of the lease as per FAA requirement. EXHIBITS Ordinance Lease Agreement Attachment A Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Our Documents\Ordinances\04~irport Lease~JVC-. 1.2396 acres.doc ORDINANCE NO. AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND JVC REAL ESTATE, LLC. ON APPROXIMATELY 1.2396 ACRES OF LAND AT THE DENTON MUNICIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an airport lease agreement for commercial operator between the City of Denton and JVC Real Estate, L.L.C. on approximately 1.2396 acres of land at the Denton Mumcipal Airport, in substantially the form of the Airport Lease Agreement which is attached to and made a part of this ordinance for all purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT~RNEY BY: S :\Our Documents\Contracts\04~Airport Lease JVC 1.2396 acres.doc AIRPORT LEASE AGREEMENT COMMERCIAL OPERATOR This Lease Agreement is made and executed to be effective this Twenty First day of September, 2004 (the "Effective Date") at Denton, Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", JVC Real Estate L.L.C., hereinafter referred to as "Lessee". WITNESSETH: WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport (the "Airport') in the City of Denton, County of Denton, State of Texas; and WHEREAS, Lessee desires to lease certain premises at the Airport and construct and maintain an aircraft hangar and related aviation facilities thereon; NOW, THEREFORE, for and in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows: I. CONDITIONS OF I ,EASE AGREEM-ENT NOTWITHSTANDING ANY LANGUAGE TO THE CON12L4~Y HEREINAFTER CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS SECTION SHALL BE BINDING. A. PRINCIPIJES OF OPERATIONS. The right to conduct aeronautical and related activities for furnishing services to the public is granted to Lessee subject to Lessee agreeing: 1. To furnish said services on a fair, equal and not tmjustly discriminatory basis to all users thereof; and To charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, that Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. NON-DI.qCRIM1NATION: Lessee, for itself, its personal representatives, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: No person on the grounds of race, religion, color, sex, or national origin Shall be excluded fi.om participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; 2. In the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi- nation in Federally assisted programs of the Department of Transportation - Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. C. RIGHT OF INDIVIDIIAI~q TO MAINTAIN AIRCRAFT. It is clearly understood by Lessee that no right or privilege has been granted which would operate to prevent any person, finn or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform. D. NON-EXCI.IISWE RIGHT. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Title 49 U.S.C. Appendix § 1349. E. pIB~IIJC AREAS. Lessor reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of.the desires or views of Lessee, and without interference or hindrance. Lessor shall be obligated to maintain and keep in good repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Lessee in this regard. During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. Lessor reserves the fig, tit to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the Airport which, in the opinion of Lessor, would limit the usefulness or safety of the Airport'or constitute a hazard to aircraft or to aircraft navigation. 5. This Lease Agreement shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States or agency thereof, AIRPORT LEASE AGREEMENT JVC LLC - Page 2 relative to the operation or maintenance of the Airport. tl. I,F,A,qED PRF. MI,qE,q Lessor, for and in consideration of the covenants and agreements herein contained, to be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease from Lessor, for the lease term described in Article 111, the following described land situated in Denton County, Texas: A. Laud. A tract of land, being approximately 180 feet by 300 feet, 54,000 square feet, or 1'.2396 acres, drawn and outlined, on Attachment "A", and legally described in Attachment "B," such .attachments being incorporated herein by reference (the "Leased Premises"). Together with the right of ingress and egress to the Leased Premises; and the right in. common with others so authorized of passage upon the Airport property generally, subject to reasonable regulations by the City of Denton and such rights shall extend to Lessee's employees, 'passengers, patrons and invitees. For purposes of this agreement, the term "Leased Premises" shall mean all property located within the metes and bounds described and identified within Attachment "B", including leasehold improvements constructed by the Lessee, but not including certain easements or property owned and/or controlled by the Lessor. A legal description of the leased premises is not currently attached as Attachment "B". Lessee shall deliver to Lessor no later then 30 days after the date of this Agreement a legal description of the leased premises accurately describing the leased premises that is acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this Agreement, in which case it will have no further force and effect. The approved legal description wilt be attached to this Agreement as Attachment "B". B. IMPROVEMENTS PROVIDED FIY I.ES~qOR: NONE: There will be no improvements provided by Lessor, except as set forth in Article II.E. "Access to Utilities" below. For the purpose of this Lease Agreement, the term "Lessor improvements" shall mean those things on or adjacent to the Leased Premises belonging to, constructed by, or to be constructed by the Lessor, which enhance or increase, the value or 'quality of the Leased Premises. Unless otherwise noted herein, all Lessor improvements are and will remain the property of Lessor. All Lessor improvements must be described in detail above, or above referenced and attached to this Agreement in an exhibit approved by Lessor. C.: IMPROVEMENTS PROVIDED FlY I.ESSEE~ ' On the Leased Premises, Lessee shall construct a hangar/office complex totaling not less than 27,000 square feet with taxiway access and appropriate culverts or drainage as required by City ordinances in the utility right of way south and north of the proposed hangar as welt as other improvements as determined necessary by City ordinances (the "Lessee's Improvements"). Lessee shall AIRPORT LEASE AGREEMENT JVC LLC - Page 3 provide a minimum of 7 (seven) auto parking spaces on the proposed lease premises and 9 (nine additional auto parking spaces at agreed locations outside of the lease boundary. Lessee's hnprovements shall be commenced no later than 270 days and completed no later than 720 days from the effective date of this Lease Agreement as evidenced by the issuance of a Certificate of Occupancy (the "Construction Period"). Notwithstanding anything contained in this Lease Agreement to the contrary, a failure to complete the Lessee's Improvements within the Construction Period may, at the sole option and discretion of the Lessor, result in the immediate termination and cancellation of this Lease Agreement upon 30 days written notice of cancellation to Lessee. In such case Lessee's rights under the Lease Agreement will immediately cease and be forfeited, and all .of Lessee's Improvements shall immediately become the property of Lessor at no cost, expense or other compensation paid by Lessor to Lessee; and Lessee shall immediately vacate the Leased Premises. D. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the Leased Premises, easements for public access on roads and taxiways. E. ACCESS TO IITIIJTIF, S. Lessor represents that there are water, 'sewer and 3- phase electricity lines within close proximity to the Leased Premises available to "tap-in" by Lessee, and that the same are sufficient for usual and customary service on the Leased Premises. m. TERM The term of this Lease Agreement shall be for a period of thirty (30) years, com- mencing on the 21st day of September, 2004 and continuing through the 20th day of September of 2034, unless earlier terminated under the provisions of the Lease Agreement (the "Lease Term"). Any attempt by Lessee to renegotiate this Lease Agreement shall be in writing addressed to the City Manager or his designee at least one hundred eighty (180) days before the expiration of the Lease Term, and at least 180 days before the expiration of any additional renegotiated period. Lessee has the option to renew for two (2) additional ten (10) year terms. The rental and terms to be negotiated shall be reasonable and consistent with the then value, rentals and terms of similar property on the Airport. AtRPORT LEASE AGREEMENT JVC LLC - Page 4 IV. PAYMENTS, RENTAI,S AND FREES Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement, the following payments, rentals and fees: A. I,AND RENTAL shall be due and payable in the sum of $0. t2 per square foot or $6,480 per year (the "Ot4ginal Rent"), payable in twelve (12) equal monthly installments in the sum of Five Hundred and Forty Dollars and no cents ($540.00) in advance, on or before the 1 st day of each and every month during the term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in whole on or before the 1st day of October, at the beginning of the City's fiscal year, each and every year of this Lease Agreement. Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease rate per square foot, as adjusted by the CPI-U referenced in Section 1V.C., times the number of square feet comprising all easements established in accordance with Article 1I (D). B. I,ESSOR IMPROVEMENTS RENTALS. NONE: improvements on the Leased Premises. There are no Lessor C. PAYMF, NT: PENAl ,TY~ ADJt ISTMENTS, All payments due Lessor from Lessee shall be made to Lessor at the offices of the Finance Department of the City of Denton, Customer Service Division, 601 West Hickory, Denton, Texas, unless otherwise designated in writing by the Lessor. If payments are not received on or before the 15th day of the month, a five percent (5%) penalty will be due as of the 16th. If payments are not received by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid rental/fee amount will be due. A one percent (1%) charge will be added on the first of each subsequent month until the unpaid rental/fee payment is made. The Original Rent for the Leased Premises shall be' readjusted at the end of each one year period during the Lease Term on the basis of the proportion that the then current United State's Consumer Price Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics bears to the previous odd month 2004 index, which was 179_ 1 (1982-84 = 100). Each rental adjustment, if any, shall occur on the ist day of October, beginning 2006, and every other year thereafter on such date. The adjustments in the yearly rent shall be determined by multiplying the Original Rent by a fraction, the numerator of which is the index number for the last month prior to the adjustment, and the denominator of which is the index number applicable at the execution of this Lease Agreement. If the product of this multiplication is greater than the Original Rent, Lessee shall pay this greater an~ount as the yearly rent until the time of the next rental adjustment as called for in this section. If the product of this multiplication is less than the Original Rent there shall be no adjustment in the annual rent at that time, and Lessee shall pay the previous year's annual rent until the time of the next rental adjustment as called for in this section. In no event shall any rental adjustment called for in this section result in an annual rent less than the previous year's annual rent. The adjustment shall be limited so that the annual rental payment determined for any given two-year period shall not exceed the annual rental payment calculated for the previous AIRPORT LEASE AGREEMENT JVC LLC - Page 5 CPI adjustment by more than twenty percent (20%) percent. If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort Worth geographical region, as compiled by the U.S~ Department of Labor, Bureau of Labor Statistics, is discontinued duririg the Lease Term, the remaining rental adjustments called for in this section shall be made using the formula set forth above, but by substituting the index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For All Items For All Urban Consmers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas- Fort Worth geographical region and the U.S. City Average are discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the United States Department of Labor that are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics concerning the purchasing power of the consumer dollar during the Lease Term, the remaining rental adjustments called for in this section shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor. V. RIGHTS AND OFII.IGATIONS OF I,ESSEE A. 11SE OF T;EASED PREMISES. Lessee is granted the non-exclusive privilege to engage owner/operator activities providing the following aviation services: I. lqangar SpaceLeaqing. Lessee is granted the non-exclusive right to rent hangar space. 2. Office Space l,ea.qing. Lessee is granted the non-exclusive right to rent office space. 3. Tie-Down Services. Lessee is granted the non-exclusive fight to charge for fie- down services on Lessee's property. Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct any services not specifically listed in this Lease Agreement. The use of the Leased Premises by Lessee, its tenants, employees, invitees or guests shall be limited to only those private, commercial, retail or industrial activities having to do with or related to airports and avia- tion. No person, business or corporation may operate a commercial, retail or industrial business upon the Leased Premises or upon the Airport without a lease or license from Lessor authorizing such commercial, retail or industrial activity. The Lessor shall not unreasonably withhold authorization to conduct aeronautical or related services. B. STANDAI~DS. Lessee shall meet or exceed the following standards: 1. Address. Lessee shall file with the Airport Manager and keep current its mailing addresses, telephone numbers and contacts where it can be reached in AlP, PORT LEASE AGREEMENT JVC LLC - PaTe 6 an emergency. 2. l,ist. Lessee shall file with the Airport Manager and keep current a list of its tenants and sublessees. 3. Ccmdnct. Lessee shall contractually require its employees and Sublessees (and sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee shall promptly enforce its contractual rights in the event of a default of such covenants. 4. l ltilitie.% Taxes and Fees. Lessee shall meet all expenses and payments in connection with the use of the Leased Premises and the rights and privileges herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed. 5. I~ws. Lessee shall comply with all current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, including roles, regulations and ordinances promulgated by Lessor, and Lessee shall-keep in effect and post in a prominent place all necessary and/or required licenses or permits. 6. Maintenance of Properly. Lessee shall be responsible for the maintenance, repair and upkeep of all property, buildings, structures and improvements, including the mowing or elimination of grass and other vegetation on the Leased Premises, and shall keep the Leased Premises neat, clean and in respectable condition, free from any objectional matter or thing, including trash or debris. Lessee agrees not to utilize or permit others to utilize areas on the Leased Premises which are located on the outside of any hangar or building for the storage of wrecked or permanently disabled aircraft, aircraft parts, automobiles, vehicles of any type, or any other equipment or items which would distract from the appearance of the leased premises. Lessee agrees that at no time shall the Leased Premises be used for a flea market type sales operation. pMntin£ of Buildings. During the Lease Term of'this Lease Agreement and during each extension, Lessor shall have the right to require, not more than once every five years, that the metal exteriOr of hangar(s) or building(s) located on the Leased Premises be repainted. The Lessor may require Lessee to repaint said exteriors according to Lessor's specifications (to specify color of paint, quality of workmanship and the year and month in which the hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete the. painting in .accordance with such specifications within one (1) year of receipt of notice from Lessor. Lessee agrees to pay all costs and expense involved in the hangar or building .painting process. Failure of Lessee to complete the painting required by Lessor, within the one (1) year period shall constitute Lessee's default under this Lease Agreement. AIRPORT LEASE AGREEMENT JVC LLC - Page 7 8. lInanthc~dzed u.qe oft,ea.qed Premises, Lessee may not use any of the Leased Premises for any use not authorized herein unless Lessor gives Lessee prior written approval of such additional use. Without limiting the foregoing the Leased Premises shall not be used for the operation of a motel, hotel, restaurant, private club or bar, apartment house, storage of recreational vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail, or other purposes, except as authorized herein. Dwelling.q, It is expressly understood and agreed that no dwelling or domicile may be built, moved to or established on or within the Leased Premises nor may lessee, its tenants, employees, invitees, or guests be permitted to reside or remain as a resident on or within the Leased Premises or other Airport premises. Lessee may have a pilot lounge, including restroom and shower facilities for use by flight crew and passengers. 10. Quit Pos.qe.~sion. Lessee shall quit possession of the Leased Premises at the end of the Lease Term or any renewal or extension thereof, or upon cancellation or termination of the Lease Agreement, and deliver up the Lease Premises to Lessor in as good condition as existed when possession was taken by Lessee, reasonable wear and tear excepted. 11. r~demnity. Lessee must indemnify, h0Id harmless and defend the Lessor, its officers, agents and employees, from and against liability for any and alt claims, liens, suits, demands and/or actions for damages, injuries to persons (including death), property damage, (including loss of use), and expenses, including court costs, attorneys' fees and other reasonable costs, occasioned by or incidental to the Lessee's occupancy or use of the Leased Premises or the Airport and/or activities conducted in connection with or incidental to this Lease Agreement, including all such causes of action based on common, constitutional or statutory law, or based in whole or in part upon the negligent or intentional acts or omissions of Lessee, its Officers, agents employees, invitees or other persons. Lessee must at alt times exercise reasonable precautions on behalf' of, and be solely responsible for, the safety of its officers, employees, agents, customers, visitors, invitees, licensees and other persons, as well as their property, while in, on, or involved in any way with the use of the Leased Premises. The Lessor is not liable or responsible for the negligence or intentional acts or omissions of the Lessee, its officers, agents, employees, agents, customers, visitors and other persons. The Lessor shall assume no responsibility or liability for harm, injury, or my damaging events which are directly or indirectly attributable to premise defects, whether real or alleged~ which may now exist or which may hereafter arise upon the Leased Premises, responsibility for all such defects being expressly assumed by the .Lessee. The Lessee agrees that this indemnity provision applies to all claims, suits, demands, md actions arising from all premise defects or conditions. AIRPORT LEASE AGREEMENT JVC LLC - ?age 8 THE LESSOR AND THE I,ESSEE EXPRESSt,¥ INTEND THIS INDEMNITYPROVISION TO REQIIIRE LESSEE TO INT)EMNIFY AND PROTECT THE I,ESSOR FROM THE CONgEQI IENCES CIE THE I.ESSOR'S OWN NEGI,IGENCE WHII.E I,ESSOR IS PARTICIPATING tN THIS LEASE AGREEMENT WHERE THAT NEGI,IGENCE IS A CONCIPRRING CAtISE OF THE INJI~R¥; DEATH, .OR DAMAGE. NOTWITHSTANDING THE TERMS OF THE PRECEDING SENTENCES: THLq 1N-DEMNIT¥ PROVISION DOES NOT APPI.Y TO ANY CT.AIM: T.OSS~ DAMAGE: CAIISE OF ACTION: SIJIT AND I.IAlqlIJTY WHERE THE 1N]IJRY, DEATH: OR DAMAGE REStll FROM THE SOI.E NEGI,IGENCE OF THE I.ESSOR OR ANY OF ITS EMPI~OYF, ES: CONTRACTORS: OR AGENTS; IINMIXED WITH THE FAI III .T OF ANY OTHER PERSON OR ENTITY_ t2. Chemicals. Lessee agrees to properly store, collect and dispose of all chemicals and chemical residues; to properly store, confine, collect and dispose of all paint, including paint spray in the atmosphere, and paint products; and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints. Further, the Lessee shall be solely responsible for all discharges, whether accidental or intentional, of any chemical and for the costs associated with the cleanup, remediation and disposal of said chemicals. 13. H~ardous Aclivities. Should Lessee violate any law, rule, restriction or regulation of the City of Denton or the Federal Aviation Administration, or any other regulatory authority, or should the Lessee engage in or penrdt other persons or agents to engage in activities which could produce hazards or obstruction to air navigation, obstructions to visibility or interference with any aircrafi navigational aid station or device, whether airborne or on the ground, then Lessor shall state such violation in writing and deliver written notice to Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the Leased Premises who are causing said violation(s), and upon delivery of such written notice, Lessor shall have the right to demand that the person(s) responsible for the violation(s) cease and desist from ail such activity creating the violation(s). In such event, Lessor shall have the right to demand that corrective action, as required, be commenced immediately to restore the Leased Premises into conformance with the particular law, rule or aeronautical regulation being violated. Should Lessee, Lessee's agent, or the person(s) responsible for the violation(s) fail to cease and desist from said violation(s) and to immediately commence correcting the violation(s), and to complete said corrections within twenty-four (24) hours following written notification, then Lessor shall have the right to enter onto the Leased Premises and correct the violation(s) at the sole cost and expense of Lessee, and Lessor shall not be responsible for any damages incurred to any improvements on the Leased Premises as a result of the corrective action process: In addition, such violation shall be considered a material default by Lessee authorizing Lessor, at its sole AIRPORT LEASE AGREEMENT JVC LLC - pacje 9 option and discretion, to immediately terminate and cancel this Lease Agreement. C. SIGNS. No signs, posters, or other similar devices ("Signage") shall be placed on the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport property without the prior written approval of Lessor. Lessee, at its sole expense, shall be responsible for the creation, installation and maintenance of all such Signage. Lessee shall pay to Lessor any and all damages, injuries, or repairs resulting from the installation, maintenance or repair of any such Signage. Any Signage placed on the Leased Premises shall be maintained at all times in a safe, neat, sightly and good physical condition. All signage shall be removed from the Leased Premises by Lessee immediately upon receipt of instructions for removal of same from Lessor, including without limitation, upon expiration or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor may do so at the sole cost and expense of Lessee. Lessee shall be permitted the right to place two wall signs, no greater than thirty-two square feet each, identifying the commercial hangar operation. All signage shall comply with all applicable ordinances including the City of Denton sign ordinance." D. ENTRY. Lessor and its designees shall have the right to enter the Leased Premises upon reasonable advance notice (written or oral) and at any reasonable times for the purposes of inspecting the Leased Premises, performing any work which Lessor elects to perform under this Lease Agreement, and exhibiting the Leased PremiseS for sale, lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any work, which -under any other proviSion of this Lease Agreement Lessee is required to perform, and any performance by Lessor shall not constitute a waiver of Lessee's default. VI. COVENANTS BY I,F. qSOR Lessor hereby agrees as follows: A. PEACEF[ ltJ ENJC)YMF. NT_ Upon on payment of all rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the Leased Premises and all rights and privileges herein granted. B. COMPI,IANCE. Lessor warrants and represents that in the establishment, construction and operation of the Airport, that Lessor has heretofore and at this time is complying with all existing rules, regulations, and criteria distributed by the' Federal Aviation Administration, or any other governmental authority relating to and including, but not limited to, noise abatement, air rights and easements over adjoining and contiguous areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for any action of trespass or similar cause of action by virtue of any aerial operations of adjoining .property in the course of normal take, off and landing procedures from the Airport; Lessor further warrants and represents that at all times during the Lease Term, or any renewal or extension of same, that it will continue to comply with the foregoing. AIRPORT LEASE AGREEMENT JVC LLC - Page ~.0 VII. ,qPECIAT, CONDITIONS It is expressly understood and agreed by and between Lessor and Lessee that this Lease Agreement is subject to the following special terms and conditions. RIJNWAYS AND TAXIWAYS. Because of the present twenty thousand (20,000) pound continuous use weight bearing capacity of the taxiway of Lockheed, Lessee herein agrees to limit all aeronautical activity including landing, take-off and taxiing, to aircraft having an .actual weight, including the weight of its fuel, of twenty thousand (20,000) pounds or tess, until such time that the runway and designated taxiways on the Airport have been improved to handle aircraft of such excessive weights. It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that Lessee agrees to abide by any such changes or revisions as such studies may dictate. "Aeronautical activity" referred to in this clause shall include any activity of the Lessee or its agents or subcontractors, and its customers and invitees, but shall not include those activities over which it has no solicitory part or control, such as an unsolicited or unscheduled or emergency landing. A pattern of violating the provisions of this section on two or more occasions shall be sufficient to cause the immediate termination of this entire Lease Agreement and subject Lessee to liability for any damages to the Airport that might result. VIII. I.EASEIrIOI D IMPROVEMENTS A. REQI IIRF, MENTS: Before commencing the construction of any improvements on the Leased Premises including Lessee's Improvements (the "Lease Improvements"), Lessee shall submit: Documentation, specifications; or design work, to be approved by the Lessor, which shall establish that the improvements to be built or constructed upon the Leased Premises are in conformance with the overall size, shape, color, quality and design, in appearance and structure of the program established by Lessor on the Airport. 2. All plans and specifications showing the location upon the Leased Premises of the proposed construction and improvements; 3. The estimated cost of such construction. No construction may commence until Lessor has approved the plans and specifications and the location of the Lease Improvements, and the estimated costs of such construction. Approval by the Lessor shall not be unreasonably withheld. Documentary evidence of the actual cost of construction on public areas only (such as taxiways) shall be delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy AIRPORT LEASE AGREEMENT JVC LLC - Paue 11 of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he shall have found to have been paid by Lessee, and the findings of the City Manager when endorsed by him upon said contract shall be conclusive upon alt parties for all purposes of this Lease Agreement. No later than 30 days after completion of the 'Lease Improvements, Lessee shall submit to Lessor detailed as built plans of the Lease Improvements and documentary evidence acceptable to Lessor evidencing the total cost to cor~struct the Lease Improvements ("Cost to Construct Lease Improvements"). B. ADDITIONAL CONSTRIICTtON OR 1MPROVF. MF. NTS: Lessee is hereby authorized to construct upon the Leased Premises, at its own cost and expense, buildings, hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this Lease Agreement, provided however, Lessee shall comply with all of the requirements of Section vm.A., above. Such additional improvements shall be a part of the Lease Improvements. C. OWNERSHIP OF IMPROVEMENTS: Except as otherwise provided in this Lease Agreement, the Lease Improvements constructed upon the Leased Premises by Lessee shall remain the property of Lessee during the Lease Term subject to the following conditions, terms and provisions: 1. Removal of Buildings. No building or permanent fixture may be removed from the Leased premises. A,qsumption. The Lease Improvements shall automatically become the property of Lessor' absolutely free, without any cost to Lessor, at the end of the Lease Term, or any extension thereof. Failure to Complete l.essee's Improvements. The Lease Improvements shall immediately become the property of Lessor at no cost, expense, or compensation to Lessee should Lessee fail to complete the Lessee's Improvements within the Construction Period as provided in Section II.C of this Lease Agreement. Cancellation or Termination. Should this Lease Agreement be cancelled or terminated before the end of the Lease Term, or extension thereof, LeSsor shall have the right to purchase all of the Lease Improvements. In the event of a cancellation or termination, other then due to a default by Lessee that has not been cured as provided below, the purchase price shall be equal to the most recent value of the Lease Improvements as determined by the Denton County Central Appraisal District ("Value of the Lease Improvements") reduced by 1/30 for each year of the Lease Term that has expired as of the date of termination (the "Purchase Price"). Should the Denton County Central Appraisal District not determine a separate value for the Lease Improvements then the Purchase Price will be detemfined taking the Cost to Construct the AIRPORT LEASE AGREEMENT JVC LLC - Page 12 Lease Improvements reduced by 1/30 for each year the Lease Term has expired as of the date of termination, if the termination or' cancellation is due to a default by Lessee that has not been cured within 30 days after written notice of default to Lessee, then the Purchase Price as determined above shall be reduced by 50%. IX. SI FBRC)GATtON OF MORTGAGEE. Any person, corporation or institution that lends money to Lessee for construction of any hangar, structure, building or improvement and retains a security interest in said hangar, structure, building or improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon the Leased Premises and operate or manage said hangar, structure, building or improvement according to the terms of this Lease Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid in full, whichever comes first, but in no event longer than the Lease Term. It is expressly understood and agreed that the right of the mortgagee referred to herein is limited and restricted to those improvements constructed with funds borrowed from mortgagee, those improvements purchased with the borrowed funds, and those improvements pledged to secure the refinancing of the improvements. X. RIGHT OF EASEMENT Lessor shall have the right to establish easements, at no cost to Lessee, upon the Leased Premises for the purpose of providing underground utility services to, from or across the Airport property or for the construction of public facilities on the Airport. However, any such easements shall not interfere with Lessee's use of the Leased Premises and Lessor shall restore the property to the original condition as is reasonable practicable upon the installation of any utility services on, in, over or under any such easement at the conclusion of such construction. Construction in or at the easement shall be completed within a reasonable time. XI. ASSIGNMENT OF I,EA,qE Lessee expressly covenants that it will not assign this Lease Agreement, convey more than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise, trm~sfer, license, nor sublet the whole or any part of the Leased Premises for any purpose, except for rental of hangar space or tie-down space for storage of aircraft only, w/~thout the written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approvaI of such sale, sublease, transfer, license, or assignment of the facilities for Airport related purposes; provided however, that no such assiglrment, sublease, transfer, license, sale or otherwise shall be approved if the rental, fees or payments, received or charged are in excess of the rental or. fees paid by Lessee to Lessor under the terms of this lease, for such portion of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or otherwise. The provisions of this Lease Agreement shall remain binding upon the assignees, if any, of Lessee. AIRPORT LEASE AGREEMENT JVC LLC - Pac3e 13 Xff. INRI IR ANCE A. RF, QI Il-RED 1NSIIRAhICE: Regardless of the activities contemplated under this Lease Agreement, Lessee shall maintain continuously in effect at all times during the term of this agreement, at Lessee's sole expense, the following minimum insurance coverages: Commercial (Public) General Liability covering the Lessee or its company, its employees, agents, tenants and independent contractors, and its operations on the airport. Coverage shall be in an amount not less than $1,000,000 per occurrence and provide coverage for premises/operations and contractual liability AND where exposure exists, coverage for: products/completed operations; explosion, collapse and underground property damage. All risk property insurance on a replacement cost basis covering loss or damage to all facilities used by the Lessee, either as a part of this agreement or erected by the Lessee subsequent to this agreement. Under no circumstances shall the Lessor be liable for any damages to fixtures, merchandise or other personal property of the Lessee or its tenants. 3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non- Owned Autos and Hired Cars: For operation in aircraft movement areas the limit of liability shall be $1'00,000 per occurrence. For other operations the limit of liability shall be consistent with the amount set by State Law. B. ADDITIONAl, COVFJ~AGE,q: In addition t° the above referenced coverages, the following insurance is required if the activity or exposure exists or is contemplated: Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public) General Liability shall include coverage or separate coverage shall be provided for Environmental Impairment Liability. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of $1,000,000 per occurrence to include' Hull Coverage and Liability. In addition, Passenger Liability in an amount of $100,000 per person (per passenger seat) shall be provided. o Aircral~ Rental or Flight Training - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability, Passenger Liability in the amount of $100,000 per person (per passenger seat) and Student/Renter Liability covering all users in the amount of $500,000 per occurrence. AIRPORT LEASE AGR.EEMENT JVC LLC - Page 14 4. Specialized Commercial Flying (including crop dusting, seeding, and spraying, banner towing and aerial advertising, aerial photography and surveying, fire fighting, power line or pipe line patrol) - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an amount of $100,000 per person (per passenger seat) shall be provided. 5. Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Hanger Keepers Liability in the amount of $500,000 per occurrence shall be provided. This requirement shall not apply to individual owner/operators who provide minimal incidental aircraft storage with or without a fee. C. COVER AGE REQI)TREMENTS: All insurance coverages shall comply with the following requirements: All liability policies shall name the City of Denton, and its officers and employees as an additional named insured and provide for a minimum of 30 days written notice to the City of any cancellation or material change to the policy. All insurance required by this Lease Agreement must be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas. All policies are subject to the examination and approval of the City's office of Risk Management for their adequacy as to content, form of protection and providing company. Required insurance naming the City as an additional insured must be primary insurance and not contributing with any other insurance available to the City whether from a third party liability policy or other. Said limits of insurance shall in no way limit the liability of the Lessee hereunder. The Lessor shall be provided with a copy of all such policies and renewal certificates. Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease Agreement. During the Lease Term, or any extension thereof, Lessor herein reserves the right to, with 60 days notice, adjust or increase the liability insurance amounts required of the Lessee, and to require any additional rider, provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by:Lessor; provided however, that any requirements shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal Airport in size and in scope of aviation activities, located in the southwestern region of the United States. AIRPORT LEASE AGREEMENT JVC LLC - Page 15 X]11. CANCEI,T,ATION BY ~,ES~OR In the event that Lessee shall file a voluntary petition in bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any Federal reorganization act, or Lessee shall be divested of its estate herein by other operation of law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or conditions herein contained, or on its part to be performed, the Lessor may give Lessee written notice to correct such condition or cure such default and, if any condition or default shall continue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may terminate this Lease Agreement by written notice to Lessee. In the event of default, Lessor has the right to purchase any or all of the Lease Improvements under the provisions of Section VII/.C.4. hereof. XIV. CANCEl J,ATION BY 1 ,F,R,qEF, Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of its obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of any one of the following events: (1) issuance by any court of competent juris- diction of a permanent injunction in any way preventing or restraining the use of the Airport or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or agreements contained herein and the failure of Lessor to remedy such breach for a period of ninety (90) days after receipt of a written notice of the existence of such breach; (3) the inability of Lessee to use the Lease Premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, role or regulation of any appropriate governmental authority having jurisdiction over the operations of Lessor or due to war, earthquake or other casualty; or (4) the assumption or recapture by the United States Government, or any authorized agency thereof, of the maintenance and operation of said airport and facilities or any substantial part or parts thereof. Upon the happening of any of the four events listed in the preceding paragraph, such that the Leased Premises cam~ot be used for aviation purposes, then the Lessee may cancel this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its terms, except, however, that the use of the Leased Premises shall not be limited to aviation purposes, their use being only limited by such laws and ordinances as may be applicable at that time. XV. MISCFJ J JANE~OI Y,q PR OVTRION,q A. ENTIRE AGREEMENT. This Lease Agreement constitutes the entire understanding between the parties and as of its Effective Date supersedes all prior or independent Agreements between the parties covering the subject matter hereof. Any change or modification hereof shall be in writing signed by both parties. B. BINDING EFFECT. All covenants, stipulations and agreements herein shall AIRPORT LEASE AGREEMENT JVC LLC - Page 16 extend to, bind and inure to the benefit of the legal representatives, successors and assigns of the respective parties hereto. C. SEVER Al:Ill JTY. If a provision hereof shalI be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Lease Agreement shall not be void; but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. D. NOTICE. Any notice given by one party to the other in connection with this Lease Agreement shall be in writing and shall be sent by certified mail, return receipt requested, with postage fees prepaid or via facsimile as follows: 1. If to Lessor, addressed to: · City Manager City of Denton 215 E. McKirmey Street Denton, Texas 76201 Fax No.940.349.8596 2. If to Lessee, addressed to: JVC Real Estate L.L.C. John A. Varm, Ph.D, President 1424 ·Gables Court Piano, Texas 75075 Phone (972) 599-9550 Fax No. (972) 964-1928 E. IqF, ADINGS. The headings used in this Lease Agreement are intended for convenience of reference only and do not define or limit the scope or meaning of any provision of this Agreement. F. GOVF, RNING I,AW AND VF, NI1-E~. This Lease Agreement is to be construed in accordance with the laws of the State of Texas and is fully performable in Denton County, Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease Agreement shall be a court of competent jurisdiction in Denton County, Texas. G. NO WAWER. No waiver by Lessor or Lessee of any default or breach of covenant or term of this Lease Agreement may be treated as a waiver of any subsequent default or breach of the same or any other covenant or term of this Lease Agreement. H. BIO AGENCY. During all times that this Lease Agreement is in effect, the parties agree that Lessee is and shall not be deemed an agent or employee of the Lessor. AIRPORT LEASE AGREEMENT JVC LLC - Page 17 IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the Effective Date first above written. C1TY OF DENTON, TEXAS, LESSOR BY: MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: JVC Real Estate, L.L.C. BY:~ ident AIRPORT LEASE AGREEMENT JVC LLC - Page 18 ACKNOWLEDGMENTS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the __ day of Michael A. Conduff, City Manager of the City of Denton, Texas, municipality. ., 2004, by on behalf of said NOTARY PUBLIC, STATE OF TEXAS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the [0 day of ~A0, ~.~: 2004 by John A. Vann, President, JVC Real Estate L.L.C. · NO~FA~Y PU~ITIe, S'TA'T~OF TEXAS AIRPORT LEASE AGREEMENT JVC LLC - Page 19 Attachment A - Sk¥1ane .570 ULTIMATE IBUILDINGS/F ACILITIE8 AIRPORr 'SPONSOR TERMINAL AREA DRAWING "~-- DENTON AIRPORT DENTON, TEXAS ~ .......... SHEET f ~ OF' AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute on behalf of the City of Denton Amendment No. 1 to an airport project participation agreement with the Texas Department of Transportation dated January 8, 2002 relating to the construction of improvements at the Denton Municipal Airport; and declaring an effective date. BACKGROUND As part of cominued airport developmem and following recommendations outlined in the 2003 Airport Master Plan, TxDOT is offering an opportunity to amend the current Tower Terminal Gram in order to provide an additional $100,000 dollars in funding for the construction of auto parking. The currem gram agreemem is a 50:50 match with a local participation of $500,000 for the Tower and $300,000 for the Terminal, for a leveraged total of $1.60 million. Accepting TxDOT's offer for additional dollars for auto parking will require the City to increase it's Terminal match by $100,000 dollars for a total local participation amoum of $400,000 dollars on the Terminal project. This will increase the leveraged total for the Tower Terminal Gram to $1.8 million dollars. TxDOT officials have requested that the City of Denton provide documentation of support and acceptance of the proposed amendment through the attached proposed ordinance and amendment. PRIOR ACTION/REVIEW The Airport Advisory Board has been briefed and unanimously recommends approval of the proposed amendment. Staff recommends approval of the proposed grant amendment. ESTIMATED SCHEDULE OF PROJECT Upon receipt of signed amendment, the Director of TxDOT will sign the amendment and approve the increase in gram assistance. The project is curremly in the design phase and completion and occupation of the terminal is estimated late calendar year 2005. FISCAL INFORMATION This is a 50:50 match grant for design and construction services related to the proposed airport terminal building, parking lot. The total terminal project participation by TxDOT will be $400,000. This will require the City to contribute an additional $100,000 to increase total local participation to a total of $400,000. Funds are available through CIP bonds. EXHIBITS Ordinance Amendment Respectfully submitted: Mark Nelson, Director Airport and Transit Operations S:\Our Documents\Ordinances\04\TxDOT Grant Agreement Amendment. 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. 1 TO AN AIRPORT PROJECT PARTICIPATION AGREEMENT WITH THE TEXAS DEPARTMENT OF TRANSPORTATION DATED JANUARY 8, 2002 RELATING TO THE CONSTRUCTION OF IMPROVEMENTS AT THE DENTON MUNICIPAL AIRPORT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Pursuant to Ordinance No. 2002-005 the City of Denton entered into an Airport Project Participation Agreement, dated January 8, 2002 with the Texas Department of Transportation ("TxDot") related to the construction of improvements at the Denton Municipal Airport (the "Existing Agreement"); and WHEREAS, TxDot and the City desire to enter into Amendment No. 1 to the Existing Agreement, a copy of which is attached hereto and made a part hereof by reference ("Amendment No. 1") calling for an increase 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. 1 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 receive the funds provided under Amendment No. 1, including payment of the City's share of the estimated construction costs. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS T~LEG~L FORM: BY: ~~ EULiNE BROCK, MAYOR TEXAS DEPARTMENT OF TRANSPORTATION GRANT AGREEMENT (State Assisted Airport Development Grant) Amendment No. 01 to the Agreement TxDOT CSJ No.: 0218DENTN TxDOT Contract No.: 2XXAV018 TxDOT Project Name: AP DENTON 3 Part I - Identification of the Project TO: The City of Denton, Texas FROM: The State of Texas, acting through the Texas Department of Transportation The City of Denton, Texas, referred to as the "Sponsor", and the Texas Department of Transportation, referred to as the "State," have entered into a Grant Agreement TxDOT CSJ Number 0218DENTN, executed by the Sponsor on January 8, 2002 and by the State on January 22, 2002, for the development of the Denton Municipal Airport. The project is described as follows: design and construction an airport terminal building and an air traffic control tower at the Denton Municipal Airport as approved by the Texas Transportation Commission on September 27, 2001. Part II - Offer of Financial Assistance, estimates total project costs to be $1,600,000; and financial assistance is currently limited to $800,000 in state funds and $800,000 in local sponsor funds. It is in the mutual interest of the Sponsor and the State to amend the Grant Agreement at this time to increase the agreement by $200,000 for the design and construction of an auto parking Itt; and In consideration of the parties' mutual promises, the following amendment to the Grant Agreement shall become effective upon execution of this Amendment by the Sponsor and the State. The Grant Agreement is amended as follows: 1. Part II, paragraph 1 of the Agreement, change Amount A, estimated eligible project costs, and any further references in the Agreement to Amount A, to $1,800,000. Page 1 of 3 2. Part II, paragraph 1 of the Agreement, change Amount B, State's share of eligible project costs, and any further references in the Agreement to Amount B, to $900,000. 3. Part II, paragraph 1 of the Agreement, change Amount C, Sponsor's share of eligible project costs, and any further references in the Agreement to Amount C, to $900,000. 4. Part I, paragraph 3 of the Agreement, the project description should read as follows: design and construction an airport terminal building, an air traffic control tower and auto parking lot at the Denton Municipal Airport as approved by the Texas Transportation Commission on September 27, 2001. All other terms and conditions of the agreement are unchanged and remain in full force and effect. The above amendment to the Grant 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 Sponsor Title APPROVED AS TO FORM: CITY ATTORNEY~ CITY BY:- Page 2 of 3 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: September 21, 2004 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistant City Manager SUBJECT Consider an ordinance authorizing the City Manager, or his designee to execute an amendment of the Interlocal Agreement between the City of Denton dated effective August 1, 2004 between the City of Demon, the University of North Texas and McDonald Transit Associates, INC. to provide for motor carrier passenger service for UNT Students, Staff and Faculty and providing for an effective date. BACKGROUND On June 15, 2004 the City Council approved Ordinance 2004-178 providing for the acquisition of 15 transit vehicles to be acquired from Dallas Area Rapid Transit (DART) via a pass through funding agreemem with the University of North Texas (UNT). The agreement required UNT to provide the funds necessary for the purchase of the vehicles and provided for an additional $75,000 to be applied toward make ready improvemems to the vehicles. To expedite the improvements of the 15 vehicles, DART offered to provide the majority of these improvemems prior to transferring the vehicles. This reduced the time, labor and coordination required in relocating the vehicles to separate paint and maimenance facilities, thereby enhancing the efficiency of the make ready process. To ensure the vehicles would be ready for start of service outlined in the Agreemem as August 23, 2004, UNT Parking and Transportation staff agreed to pay a higher amount than originally outlined in the agreement. However, it was later determined that changes to the original agreement would be necessary to formally invoice UNT for the additional charges for make ready improvemems. OPTIONS Approve the proposed amendment to the Interlocal Agreement for the acquisition of the DART vehicles and associated make ready improvemems. II. Provide staff direction with other alternatives to the proposal. RECOMMENDATION Staff recommends the approval of the proposed amendment. ESTIMATED SCHEDULE OF PROJECT The amendment would be retroactive to August 1, 2004. PRIOR ACTION/REVIEW The City Attorney's Office reviewed and prepared the proposed amendment. McDonald Transit has approved the proposed amendment and UNT staff has approved the format of the proposed amendment. FISCAL INFORMATION This is a pass through funding agreement where UNT will provide the additional funds. The amendment will allow for an increase of $24,782.92 to the original sum of $75,000 identified for interior refurbishment and exterior painting and markings of the vehicles acquired from DART. Upon approval, LINK will invoice UNT for expenses associated with the make ready improvements. EXHIBITS Ordinance Amendment Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Our DocumentskOrdinances\04\Intorlocal-UNT-Bus Service 2004-05-1 st amendment.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE AN AMENDMENT OF THE INTERLOCAL AGREEMENT DATED EFFECTIVE AUGUST 1, 2004 BETWEEN THE CITY OF DENTON, THE UNIVERSITY OF NORTH TEXAS AND MCDONALD TRANSIT ASSOCIATES, INC. TO PROVIDE FOR MOTOR CARRIER PASSENGER SERVICE FOR UNT STUDENTS, STAFF AND FACULTY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on August 1, 2004 the City, UNT and McDonald entered into that certain Intedocat Agreement to provide to UNT bus service through August 20, 2005 (the "Existing Agreement"); and WHEREAS, the City, UNT and McDonald desire to enter into an amendment to the Existing Agreement to amend Section 2.1 to increase the amount of the make ready costs for the 15 Additional Buses in substantially the same form as the Amendment to Interlocal Agreement attached hereto and made a part hereof by reference (the "Amendment"); and WHEREAS, the City Council fmds that the Amendment is in the public interest; NOW, THEREFOR; THE COUNCIL OF TIlE 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 the Amendment on behalf of the City and to exercise the City's rights and duties under the Amendment. SECTION 3. This ordhaance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FO : HERBERT~RNEYBy: ' Page 2 AMENDMENT OF INTERLOCAL AGREEMENT THIS AGREEMENT is made and entered into to be effective as of the 1 st day of August, 2004 (the "Effective Date"), by and between the City of Denton, Texas, a Texas municipal corporation, hereinafter referred to as City, University of North Texas, a Texas State University, hereinafter referred to as UNT and McDonald Transit Associates, Inc. a Texas Corporation, hereinafter referred to as McDonald. WHEREAS, on August 1, 2004 the City, UNT and McDonald entered into that certain Interlocal Agreement to provide to UNT bus service through August 20, 2005 (the "Existing Agreement"); and WHEREAS, the City, UNT and McDonald have entered into this agreement (the "Amendment") to amend Section 2.1 of the Existing Agreement to increase the amount of the make ready costs for the 15 Additional Buses; and WHEREAS, all payments for services under this agreement are made from current revenues of the paying party and fairly compensate the performing party for the services provided for herein; and WHEREAS, this Agreement is in the public interest; NOW, THEREFORE, the City, UNT, and McDonald in consideration of the mutual covenants hereinafter expressed, agree as follows: ARTICLE ONE The term of this Agreement shall be the same as the Existing Agreement. Section 2.1 of the Existing Agreement is hereby amended to add the following: "Notwithstanding the foregoing, the $75,000 to be paid by UNT for the initial repairs, maintenance and make ready for the Additional Buses is hereby increased to $113,495." All other terms and conditions of the Existing Agreement will remain the same. Signed as of the Effective Date as provided above. CITY OF DENTON, TEXAS BY: MICHAEL A CONDUFF CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: THE UNIVERSITY OF NORTH TEXAS ATTEST: By: Phillip Diebel VP Finance & Business Affairs By: APPROVED AS TO LEGAL FORM: ASSISTANT GENERAL COUNSEL By: MCDONALD TRANSIT ASSOCIATES, INC. BY: ROBERT T. BABBIT PRESIDENT Page 2 S:\Our Documents\Contracts\04\UNT-Bus Services-2004-05-1 st Amendment).DOC AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: CM/DCM/ACM: Police Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an Ordinance of the City of Demon, Texas amending Chapter 21, Article I of the Code of Ordinances of the City of Demon by adding a section establishing hours for the use of the Day Labor Site and regulating certain activities on the Day Labor Site; providing a savings clause; providing a severability clause; providing a penalty not to exceed five hundred dollars; and declaring an effective date. BACKGROUND The Day Labor Site has been located at 221 W. Collins St. for several years. However, there is no City ordinance regulating the use of the site. The proposed ordinance comains a definition of the Day Labor Site that is consistent with the definition contained in the recent revision of the Solicitor's Ordinance. It is included so that the area regulated by this ordinance is clearly delineated. The purpose of the Day Labor Site is to provide a location for the solicitation of employment. Currently, individuals gather at the site during the evening and at night for purposes other than the solicitation of employment. This increases the potential for disturbances and criminal activity at that location. The proposed ordinance restricts the hours of operation to 6:00 a.m. to 3:00 p.m., the primary hours for soliciting employment. This ordinance will provide police officers with a valuable tool with which to regulate activities at the site. The proposed ordinance also makes it unlawful to possess or consume alcoholic beverages at the Day Labor Site. Prohibiting alcohol in the Day Labor Site is consistent with ordinances prohibiting alcohol in City parks and facilities. Alcohol consumption often contributes to disorderly behavior and other criminal activity. Therefore, prohibiting alcohol in the Site should result in a safer environment for those using the facility. OPTIONS 1. The Council can adopt the proposed ordinance. 2. The Council can choose not to adopt the proposed ordinance. RECOMMENDATION Staff recommends adoption of the proposed ordinance. PRIOR ACTION/REVIEW The Legal Department has approved the ordinance as to form and content. FISCAL IMPACT The ordinance will not result in additional costs to the City. Prepared by: Joanie Housewright Captain Operations Bureau Respectfully submitted, Charles Wiley Chief of Police S:Our Doeunlmlt ~Ordhlmlce~04 Day Labor Site Restrictions doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING CHAPTER 21, ARTICLE I OF THE CODE OF ORDINANCES OF THE CITY OF DENTON BY ADDING A SECTION ESTABLISHING HOURS FOR THE USE OF THE DAY LABOR SITE AND REGULATING CERTAIN ACTIVITIES ON THE DAY LABOR SITE; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 21 "Offenses" of the Code of Ordinances of Denton, Texas is hereby amended by adding Section 21-7 establishing the hours of operation of the day labor site and prohibiting the possession or consumption of any alcoholic beverage at the day labor site. Section 21-7 shall read as follows: Sec. 21-7. Day Labor Site Regulations. The following restrictions shall apply to the use of the Day Labor Site: (1) The Day Labor Site shall be open from the hours of 6:00 a.m. to 3:00 p.m. It shall be unlawful for any person to be at the Day Labor Site between 3:00 p.m. to 6:00 a.m. (2) It shall be unlawful to possess or consume any alcoholic beverage at the Day Labor Site. (3) It shall be unlawful to solicit employment or to remain on any portion of the property located at 221 W. Collins which is not designated as part of the Day Labor Site. The Day Labor Site shall not include any area within fifty feet of the intersection of the Day Labor Site driveway entrance and West Collins Street. Nor shall the Day Labor Site include any area within twenty feet of any curb-line of the city streets adjacent to the property at 221 W. Collins Street. Additionally, if any fencing, shrubbery, or other physical barrier is added to the property at 221 W. Collins Street, then the Day Labor Site shall only include the area of the property inside of the physical barrier. SECTION 2. That all provisions of the ordinances of the City of Denton in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Denton, not in conflict with the provisions of this ordinance, shall remain in full force and effect. S:Our Doeunlmlt ~Ordhlmlce~04 Day Labor Site Restrictions doc SECTION 3. That if any provision of this ordinance or application thereof to any person or circumstance is held invalid, such invalidity shall not affect the other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. Any person adjudged guilty of violating this ordinance shall be guilty of a misdemeanor and punished by a fine not to exceed Five Hundred Dollars ($500.00). SECTION 5. That this Ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this Ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of .,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 City Manager's Office Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance of the City of DeNon authorizing an agreemem between the City of DeNon, Texas and the Black Chamber of Commerce for arts and emertainmem at the Blues Festival; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND: Councilmember Raymond Redmon made a request for $750.00 of his comingency funds be expended to help pay for the arts and emertainmem of the 2004 Blues Festival. An additional $662.75 was requested by Mayor Brock and $500 by Councilmember Pete Kamp for this same purpose. RECOMMENDATION Staff recommends approval of this ordinance ratifying the agreemem between the City and the Denton Black Chamber for support provided to the 2004 Blues Festival. PRIOR ACTION/REVIEW (Council~ Boards~ Commission) None FISCAL INFORMATION The comingency fund expenditure request is for $1912.75. Prepared by: Respectfully submitted: Betty Williams Director of Management and Public Information Ben Thatcher Management Assistant to the City Council S:\Our Documents\OrdinanccsX04kDenton Black Chamber-Blues Festival Or&doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON BLACK CHAMBER OF COMMERCE FOR ARTS AND ENTERTAINMENT AT THE BLUES FESTIVAL; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Program and the agreement between the City and the Denton Black Chamber of Commerce. attached hereto and made a part hereof by reference (the "Agreement") serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CiTY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PRO~T~ITY ATTORNEY BY: ~ '" 'Ci~3CUMF~i\user~LOCALS~I~Temp~)enton Black Chamber Agreement.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON BLACK CHAMBER OF COMMERCE This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and the Denton Black Chamber of Commerce, a Texas Non-Profit Corporation, hereinafter referred to as "Chamber": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest as it will promote tourism and economic development within the City, among other things; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES Chamber shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by the Chamber to offset the costs/expenses for arts and entertainment at the Blues Festival, which is open to the public. II. OBLIGATIONS OF CHAMBER In consideration of the receipt of funds from City, Chamber agrees to the following terms and conditions: A. One Thousand Nine Hundred Twelve Dollars and 75/100 ($1,912.75) shall be paid to Chamber by City to be utilized for the purposes set forth in Article I. B. Chamber will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the program. C. Chamber will permit authorized officials of City to review its books at any time. D. Chamber will reduce to writing all of its roles, regulations, and policies and file a copy with the City along with any amendments, additions, or revisions whenever adopted. E. Chamber will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. Chamber will appoint a representative who will be available to meet with City officials when requested. G. Chamber will submit to City copies of year-end audited financial statements. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: September 1, 2004 through September 30, 2004, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. P^YMENTS TO CH^M~R. City shall pay to Chamber the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. Chamber shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Chamber; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Chamber agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Chamber agrees to make available its financial records for review by City at City's discretion. In addition, Chamber agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. Chamber shalt submit a copy of the annual independent audit to City within ten (I 0) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in program services. D. To comply with this section, Chamber agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Chamber's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Chamber agrees to retain all books, Page 2 of 7 records, documents, reports, and written accounting procedures pertaining to the services provided and expendituxe of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve Chamber of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, Chamber shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Chamber understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Chamber's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Chamber violates any covenants, agreements, or guarantees of this Agreement, the Chamber's insolvency or filing of bankruptcy, dissolution, or receivership, or the Chamber's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Chamber shall comply with all applicable equal employment oppommity and affirmative action laws or regulations. B. Chamber will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Chamber's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Chamber may be barred from further contracts with City. Page 3 of 7 Chamber represents and warrants that: A. All information, reports and dam heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Chamber on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Chamber. C. No litigation or legal proceedings are presently pending or threatened against Chamber. D. None of the provisions herein contravenes or is in conflict with the authority under which Chamber is doing business or with the provisions of any existing indenture or agreement of Chamber. E. Chamber has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Chamber are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Chamber to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. Page 4 of 7 C. Chamber shall notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION To the extent authorized by law, the Chamber agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the Chamber or those services contemplated by this Agreement, including alt such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Chamber, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. Chamber covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Chamber further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its goveming body. B. Chamber further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to Chamber or City, as the case may be, at the following addresses: Page 5 of 7 CITY CHAMBER City of Denton, Texas Atto: City Manager 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8591 Elihu Gillespie, Chairman Denton Black Chamber of Commerce P.O. Box 51026 Denton, TX 76206 Fax No. 940.498.3234 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. Chamber shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is heldto be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to Chamber hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Chamber. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its fights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. Page 6 of 7 IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of ,2004. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: EUL1NEBROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT PROUTY, CITY ATTORNEY BY: ATTEST: DENTON BLACK CHAMBER OF COMMERCE BY: SECRETARY Page 7 of 7 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 City Manager's Office Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance of the City of DeNon authorizing an agreemem between the City of DeNon, Texas and the Historical Park Foundation of DeNon County, Inc. for the restoration of the Quakertown house to an African American historical museum; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND: Councilmember Jack Thomson made a request for $500.00 of his comingency funds be expended to help pay for the restoration of the Quakertown house. An additional $665 was requested by Mayor Brock, $500 by Councilmember Joe Mulroy, and $350 by Councilmember Pete Kamp for this same purpose. RECOMMENDATION Staff recommends approval of this ordinance ratifying the agreemem between the City and the Historical Park Foundation of Denton County, Inc. for support in restoring the Quakertown House project. PRIOR ACTION/REVIEW (Council, Boards, Commission) None FISCAL INFORMATION The comingency fund expenditure request is for $2015.00. Prepared by: Respectfully submitted: Betty Williams Director of Management and Public Information Ben Thatcher Management Assistant to the City Council S:\Our Documents\Ordinances\04XHistorical Park Foundation Ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE HISTORICAL PARK FOUNDATION OF DENTON COUNTY, INC. FOR THE RESTORATION OF THE QUAKERTOWN HOUSE TO AN AFRICAN AMERICAN HISTORICAL MUSEUM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Program and the agreement between the City and the Historical Park Foundation of Denton County, Inc. attached hereto and made a part hereof by reference (the "Agreement") serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBER~~RNEY BY: (-~-"'27~ SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE HISTORICAL PARK FOUNDATION OF DENTON COUNTY, INC. FOR THE QUAKERTOWN HOUSE MUSEUM This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and The Historical Park Foundation of Denton County, Inc., a Texas Non-Profit Corporation, hereinafter referred to as "Foundation": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreemem serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES Foundation shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by the Foundation to refurbish the Quakertown House as an African American Historical Museum. The Quakertown House has been moved to the Historical Park next to the Bayless-Selby House Museum. II. OBLIGATIONS OF FOUNDATION In consideration of the receipt of funds from City, Foundation agrees to the following terms and conditions: A. Two Thousand Fifteen Dollars ($2,015.00) shall be paid to Foundation by City to be utilized for the purposes set forth in Article I. B. Foundation will establish, operate, and maintain an account system for this program that wilt ailow for a tracing of funds and a review of the financial stares of the program. C. Foundation will permit authorized officials of City to review its books at any time. D. Foundation will reduce to writing all of its roles, regulations, and policies and file a copy with the City along with any amendments, additions, or revisions whenever adopted. E. Foundation will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. Foundation will appoint a representative who will be available to meet with City officials when requested. G. Foundation will submit to City copies of year-end audited financial statements. Ill. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time flame: October 1, 2004 through September 30, 2005, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO FOUNDATION. City shall pay to Foundation the sum specified in Article II after the effective date of this Agreement. B. Exc~.ss P^YM~NT. Foundation shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Foundation; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Foundation agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Foundation agrees to make available its financial records for review by City at City's discretion. In addition, Foundation agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. Foundation shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in program services. D. To comply with this section, Foundation agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Foundation's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Foundation agrees to retain alt books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve Foundation of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, Foundation shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Foundation understands and agrees that City's representatives shall be afforded access to alt meetings of its Board of Directors. Minutes of all meetings of Foundation's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Foundation violates any covenants, agreements, or guarantees of this Agreement, the Foundation's insolvency or filing of bankruptcy, dissolution, or receivership, or the Foundation's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Foundation shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Foundation will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Foundation's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Foundation may be barred from further contracts with City. Foundation represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, dam, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Foundation on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Foundation. C. No litigation or legal proceedings are presently pending or threatened against Foundation. D. None of the provisions herein contravenes or is in conflict with the authority under which Foundation is doing business or with the provisions of any existing indenture or agreement of Foundation. E. Foundation has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Foundation are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Foundation to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. Foundation shall notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION To the extent authorized by taw, the Foundation agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with. the performance by the Foundation or those services contemplated by this Agreement, including all such claims or causes o£action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Foundation, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. Foundation covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Foundation further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Foundation further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XIIi. NOTICE Any notice or other written insmnnent required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, remm receipt requested, or via hand-delivery or facsimile, addressed to Foundation or City, as the case may be, at the following addresses: CITY FOUNDATION City of Denton, Texas Atto: City Manager 215 E. McKirmey Denton, TX 76201 Rod Reeves, Chairman Historical Park Foundation of Denton County 110 W. Hickory St. Denton, TX 76201 Fax No. 940.349.859t Fax No. 90-349-285 t' Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, remm receipt requested. XIV. MISCELLANEOUS A. Foundation shall not transfer, pledgel or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to an~i party or parties, bank, trust company or other financial institution without the prior written approval of City. B. if any provision of this Agreement is hgld to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. ~ C. In no event shall any payment to Foundation hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Foundation. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the taws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the ~ day of ,2004. CITY OF DENTON, TEXAS BY: EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CiTY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERB~RNEY BY: ATTEST: //~ THE HISTORICAL PARK FOUNDATION OF DENTON COUNTY, INC. ROD RI~EVES, CHAIRMAN AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 City Manager's Office Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance of the City of DeNon authorizing an agreemem between the City of DeNon, Texas and the Greater DeNon Arts Council to assist in funding of the American Presidemial Comenders Exhibition; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND: Councilmember Bob Momgomery made a request for $400.00 of his comingency funds be expended to provide support to the American Presidemial Comenders Exhibition being displayed September 10 - October 24, 2004. RECOMMENDATION Staff recommends approval of this ordinance ratifying the agreemem between the City and the Greater Denton Arts Council for support to this exhibit. PRIOR ACTION/REVIEW (Council, Boards, Commission) None FISCAL INFORMATION The comingency fund expenditure request is for $400.00. Prepared by: Respectfully submitted: Betty Williams Director of Management and Public Information Ben Thatcher Management Assistant to the City Council S:\Our DocumentsSOrdinances\04~Denton Arts Council Ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE C1TY OF DENTON, TEXAS AND THE GREATER DENTON ARTS COUNCIL TO ASSIST IN FUNDING OF THE AMERICAN PRESIDENTIAL CONTENDERS EXHIBITION; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Program and the agreement between the City and the Greater Denton Arts Council. attached hereto and made a part hereof by reference (the "Agreement") serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: BY: C :\DOCUME- 1 \JERICHAR.000\LOCALS- 1 \Temp\DENTON~ 1 .DOC SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE GREATER DENTON ARTS COUNCIL This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and the Greater DeNon Arts Council, a Texas Non-Profit Corporation, hereinafter referred to as "Arts Council": WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreemem serves a valid municipal and public purpose and is in the public interest as it will promote tourism and economic development within the City, among other things; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES Arts Council shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by the Arts Council to help fund the American Presidemial Comenders 1850 - 2000 Exhibition. II. OBLIGATIONS OF ARTS COUNCIL In consideration of the receipt of funds from City, Arts Council agrees to the following terms and conditions: A. Four Hundred Dollars and no/100 ($400.00) shall be paid to Arts Council by City to be utilized for the purposes set forth in Article I. B. Arts Council will maimain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. Arts Council will permit authorized officials of City to review its books at any time. D. Upon request, Arts Council will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. Arts Council will not emer imo any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. Arts Council will appoim a represemative who will be available to meet with City officials when requested. G. Arts Council will submit to City copies of year-end audited financial statements. iii. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: September 10, 2004 through October 24, 2004, unless the contract is sooner terminated under Section VII "Suspension or Termination". IV. PAYMENTS A. PAYMENTS TO ARTS COUNCIL. City shall pay to Arts Council the sum specified in Article ii after the effective date of this Agreement. B. EXCESS PAYMENT. Arts Council shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Arts Council; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Arts Council agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Arts Council agrees to make available its financial records for review by City at City's discretion, in addition, Arts Council agrees to provide City the following data and reports, or copies thereofi A. All external or internal audits. Arts Council shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation of any major changes in program services. D. To comply with this section, Arts Council agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Arts Council's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Arts Council Page 2 of 7 agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve Arts Council of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI. DIRECTORS' MEETINGS During the term of this Agreement, Arts Council shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Arts Council understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Arts Council's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Arts Council violates any covenants, agreements, or guarantees of this Agreement, the Arts Council's insolvency or filing of bankruptcy, dissolution, or receivership, or the Arts Council's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Arts Council shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Arts Council will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Arts Council's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Arts Council may be barred from further contracts with City. Page 3 of 7 IX. WARRANTIES Arts Council represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Arts Council on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Arts Council. C. No litigation or legal proceedings are presently pending or threatened against Arts Council. D. None of the provisions herein contravenes or is in conflict with the authority under which Arts Council is doing business or with the provisions of any existing indenture or agreement of Arts Council. E. Arts Council has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Arts Council are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Arts Council to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. Page 4 of 7 C. Arts Council shall notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION To the extent authorized by law, the Arts Council agrees to indemnify, hold harmless, and defend the CITY, its officers, agents, and employees from and against any and all claims or suits for injuries, damage, loss, or liability of whatever kind or character, arising out of or in connection with the performance by the Arts Council or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Arts Council, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. Arts Council covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Arts Council further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Arts Council further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, addressed to Arts Council or City, as the case may be, at the following addresses: Page 5 of 7 CITY GREATER DENTON ARTS COUNCIL City of DeNon, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Fax No. 940.349.8591 Herbert Holl, Chairman Greater Denton Arts Council 207 South Bell Denton, TX 76201 Fax No. 940.566.1486 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. Arts Council shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreemem is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and cominue to conform to the original intent of both parties hereto. C. In no event shall any payment to Arts Council hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenam or default which may then or subsequently be committed by Arts Council. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreemem, together with referenced exhibits and attachmems, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreemem shall be imerpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreemem shall be in a court of competem jurisdiction sitting in Denton County, Texas. Page 6 of 7 IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the __ day of ,2004. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT PROUTY, CITY ATTORNEY BY: GREATER DENTON ARTS COUNCIL ATTEST: BY: RANDY ROBINSON, PRESIDENT BY: SECRETARY Page 7 of 7 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Parks and Recreation Department Howard Martin, 349-8232 ~ SUBJECT Consider approval of a resolution allowing Metzler's Food and Beverage to be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Event on October 9, 2004, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. BACKGROUND The fourth annual Fuego Y Alma Event is a Latino cultural festival, co-sponsored by the City of Denton's Parks and Recreation Department. It is held in Civic Center Park and includes local vendors, children's activities and entertainment. The Fuego Y Alma Committee, made up of community volunteers, voted for the fourth year to support the sale of alcohol at the event, allowing Metzler's Food and Beverage to be the sole proprietor of this product. Metzler's Food and Beverage will be responsible for rental of the booth space, obtaining the temporary license, and securing the temporary permit. All proceeds from the sale will support further Fuego Y Alma events. OPTIONS Council options include the approval or denial of the ordinance and agreement as submitted. Council may also opt to modify the agreement to include additional or modified requirements. RECOMMENDATION Staff recommends approval of the ordinance and agreement as consistent with agreements with other co-sponsored events. submitted, which is ESTIMATED SCHEDULE OF PROJECT The Fuego Y Alma Event is October 9, 2004, from 12:00 p.m. - 10:00 p.m. The sale of alcohol will be limited to the one-day event. PRIOR ACTION/REVIEW At the August 30, 2004, meeting the Parks, Recreation and Beautification Board recommended approval of this item. FISCAL INFORMATION This action has no impact on the City's General Fund budget. All costs and revenue from this action will be solely the responsibility of the Metzler's Food and Beverage. EXHIBITS 1. Resolution 2. Contract 3. Parks Board Minutes of August 30, 2004 RESPECTFULLY SUBMITTED: Janet Simpson, Director Parks and Recreation Department Prepared by: Janie McLeod, Community Events Coordinator Parks and Recreation Department S:\Our DocumentskResolutions\04~Fuego Y Alma alcohol sell.doc RESOLUTION NO. A RESOLUTION ALLOWING METZLER'S FOOD AND BEVERAGE TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE FUEGO Y ALMA ON OCTOBER 9, 2004, UPON CERTAIN CONDITIONS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEMENT IN CONFORMITY WITH THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Demon ("City") is the owner of the Civic Center Park and Senior Center and through the Park and Recreations Department co-sponsors a Fuego Y Alma Celebration at the Civic Center Park; WHEREAS, the consumption of alcoholic beverages is allowed in the Civic Center Park pursuant to City of Denton Code, §22-32 (b); WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages at the Fuego Y Alma; and WHEREAS, Roy Metzler, doing business as Metzler's Food and Beverage (called "Metzler's") has requested that they be sole participant allowed to sell alcoholic beverages at this year's Fuego Y Alma Celebration on October 9, 2004; and WHEREAS, the Parks and Recreation Board has recommended that Metzler's be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Celebration; and WHEREAS, the City agrees with the recommendation of the Parks and Recreation Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. Metzler's shall be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Celebration on October 9, 2004 at the Civic Center Park and Senior Center upon the following conditions: 1. They shall be responsible for rental of any booth space necessary; 2. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 3. They shall provide the security necessary for the sale of alcoholic beverages; 4. They shall provide general comprehensive liability insurance from a responsible carder, with the City as an additional insured, in the amount of $500,000.00. EXHIBIT 1 Agrees to indenmify the City of Denton against any liabihty incident to the selling of alcoholic beverages at the Fuego Y Alma Celebration. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ~ 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER .WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PR .~Y, C~Y ATTORNEY BY: '~~ CIVIC CENTER PARK AGREEMENT FOR THE FUEGO Y ALMA CELEBRATION STATE OF TEXAS COUNTY OFDENTON § This Agreement, made this ~,/ day of . ~,,~/'~'" ,2004, by and between the City of Denton, a municipal corporation, hereinafter ret~erred to as the "CITY" and Roy Metzler doing business as Metzler's Food and Beverage (called "Metzler's"). WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to Metzler's the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the Fuego Y Alma celebration on October 9, 2004, to be held at the Civic Center Park and Senior Center. Attached hereto and made a part hereof by is a copy of the resolution passed by the City Council of Denton, Texas authorizing this privilege. This privilege does not extend beyond the date of the Fuego Y Alma celebration set for the year 2004. ARTICLE 2 SCOPE OF SERVICES Metzler's in order to exercise the privilege to sell alcoholic beverages must perform the following: Metzler's shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the Fuego Y Alma Celebration. Metzler's shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the Fuego Y Alma Celebration. C. Metzler's shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the Fuego Y Alma Celebration. Metzler's failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the Fuego Y Alma Celebration. EXHIBIT 2 ARTICLE 3 LOCAL RULES AND REGULATION Metzler's agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, the Denton Civic Center Park Rules and Regulations, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. Metzler's shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. Metzler's will exercise reasonable care and due diligence in their sale of alcoholic beverages at the Fuego Y Alma Celebration. ARTICLE 4 INDEMNITY AGREEMENT Metzler's shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of Metzler's or it officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of acti°n, or litigation filed .by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, Metzler's shall maintain the following insurance with an insurance company licensed to .do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carders of at least an A- or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. Metzler's shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and Metzler's. In such event, Fuego Y Alma Celebration Agreement - Page 2 Metzler's shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing'same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To Metzler's: To CITY: Metzler's: Roy Metzler 628 Londonderry Lane Denton, Texas 76201 CITY OF DENTON: City Manager 215 E. McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and no exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention &the stricken provision. ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, Metzler's shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. Fuego Y Alma Celebration Agreement - Page 3 ARTICLE 10 PE~LSONNEL Metzler's represents that it has or witl secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY Metzler's shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS Ao The following exhibits are attached to and made a part of this Agreement: (list exhibits) Exhibit "A" Resolution No. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. Fuego Y Alma Celebration Agreement - Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and Metzler's 1)as executed this Agreement through its duly authorized undersigned officer on this the ~J day of ~,~r--* ~/~' , 2004. a CITY OF DENTON, TEXAS MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~~ :/~ WITNESS: Metzler's Food and Beverage Roy/~etzl~ '~ y Sole Proprieto~ BY: Fuego Y Alma Celebration Agreement - Page 5 Draft Parks, Recreation and Beautification Board Minutes Senior Center August 30, 2004 Members present: Teresa Andress, Geri Aschenbrenner, Ross Richardson, Members absent: Chuck Smith, Jo Kuhn, and Patrice Lyke. Staff present: Tickner, Janie McLeod, Emerson Vorel, and Kathy Schaeffer. and Reggie Heard. Janet Simpson, Bob Chairperson Teresa Andress called the meeting to order at 6:15 p.m. at the Senior Center. Awards and Recognition - None APPROVAL OF MINUTES. Ross made a motion to approve the August 2nd minutes as distributed. Reggie seconded the motion and it passed unanimously. ACTION ITEMS Proposed Fiber Optics Cable Route at South Lakes Park. Bob said the Denton Independent School District has requested the use of 4,300 linear feet, .0987 acres of parkland for the purpose of a new fiber optics cable to complete a communications network. The alignment is requested to connect McMath Middle School on the north end of the park and schools to the south part of the city. After reviewing all alternatives, staff recommends approval of option 3 to construct a 4,300 LF fiber optics communications line using a 0.098-acre portion of South Lakes Park. Reggie made a motion to approve the request and Geri seconded the motion. The motion passed unanimously. Proposed Gas Line Easement Airport Open Space Park. Bob said that Jerry Hess Operating Company has requested the use of parkland in order to locate a natural gas transmission line. After reviewing all other alternatives, staff recommends approval of the use of the Airport Open Space Park for the natural gas line easement. There would be no major impact on current park operations or programs. Ross made a motion to approve the request and Reggie seconded the motion. The motion passed unanimously. Strategic Plan. Janet reported that approximately every five years, the Parks and Recreation Department develops an operational Strategic Plan to guide decision-making in the department. The Board reviewed the Strategic Plan in detail at the July meeting and had requested that it be brought forward for approval. Geri made a motion to approve the Strategic Plan and Reggie seconded the motion. The motion was approved unanimously. Naming of Skate Park - Kathy reported that the Skate Park Committee is a group of adults and youth who have been involved in the creation and design of the skate park. There are currently EXHIBIT 3 Draft 10 members on the committee and an additional list of 20 email addresses were consulted. All four middle schools and the two high schools were asked to submit names. The committee recommended the name of the park to be: Skate Works. Ross made a motion to approve the recommendation and Geri seconded the motion. The motion passed unanimously. Request to Sell Alcoholic Beverages at Fuego Y Alma Event. Janet reported said that the Fuego Y Alma Committee requested to sale alcohol at the October 9th event. She added that it would be the organization's fourth year without incidents. Patrick Vasquez was there to represent the organization and gave a review of the activities to take place. Geri made a motion to approve the request to sale alcohol at Fuego Y Alma and Reggie seconded the motion. The motion passed unanimously. Discussion Items - None DIRECTOR'S REPORT Project Status Report. Bob reviewed the progress of the renovation on the Civic Center. Keep Denton Beautiful Newsletter was included in the packet and there were no questions. Geri commented that some benches at Avondale Park had been bent and wondered the cause. Janet explained that possibly some damage to the tables had occurred as a result of vandalism. The benches will be repaired. Teresa asked if the Water Works Park revenue had increased. Janet said that there had been three rounds of marking and that the weather was a deterrent to the attendance. Janet said the park would be closing after the Labor Day events. Teresa said she was very pleased that the Denton Boys Baseball Association had put together a league that will be playing at Roberts Field. She was pleased that the teams would be playing in Denton. Janet said that Patrice Lyke has joined the Board but was not able to attend tonight due attending a CIP meeting. There being no further business, the meeting was adjourned at 6:55 p.m. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Parks and Recreation Department Howard Martin, 349-8232 ~ SUBJECT: Consider adoption of an ordinance of the City of DeNon naming the City Hall Foumain located in Civic Cemer Park; and declaring an effective date. BACKGROUND The Denton South Rotary Club has approached the Parks and Recreation Department to renovate the fountain on the northeast corner of City Hall in Civic Center Park. The renovation is the Rotary Club's Cemennial Project, to which they have committed to comribute $15,000. The renovated foumain will include a monumem-style sign that will serve as a memorial to past Rotarians Howard L. Stone and Brandon Barnes. Additional names can be added to the sign as needed. The club is also requesting that the fountain be named to identify the Denton South Rotary Club in some way. The City of DeNon has a Naming Policy allows the naming and/or renaming of parks and park facilities. Section 2. d). provides that "The naming of a park, a facility or parts of a park or facility shall not be accepted as a condition of donation, unless the value of the donation exceeds $15,000 or 51% of the total project cost, whichever is greater. Improvements valued at less than $15,000 will not be affixed with names." The Parks, Recreation and Beautification Board is recommending that the fountain be named: "Denton South Rotary Club City Hall Memorial Fountain." OPTIONS City Council may accept the recommended name for the foumain, deny the recommendation or ask the Parks, Recreation and Beautification Board to submit an alternative name for the fountain. RECOMMENDATION Staff supports the Parks, Recreation and Beautification Board recommendation for the naming of the fountain. ESTIMATED PROJECT SCHEDULE Renovation of the fountain will occur this winter with a formal dedication in early 2005. PRIOR ACTION/REVIEW Parks, Recreation and Beautification Board unanimously recommended approval of this item at their August 2, 2004 meeting. FISCAL INFORMATION The Denton South Rotary Club will contribute $15,000 toward the renovation of the fountain. EXHIBITS: 1. Ordinance 2. Parks, Recreation and Beautification Board minutes Respectfully submitted: Janet Simpson, Director Parks and Recreation Department S:\Our Documents\Ordinances\04\City Hall Fountain Ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON NAM1NG THE CITY HALL FOUNTAIN LOCATED IN CIVIC CENTER PARK; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton desires to name the City Hall Fountain, located in Civic Center Park, in accordance with the Park and Facilities Naming Policy; and WHEREAS, the chairperson for the Park and Recreation Board appointed a committee to develop a recommendation for a name for the City Hall Fountain; and WHEREAS, the naming committee proposed that the City Hall Fountain be named the "Denton South Rotary Club City Hall Memorial Fountain"; and WHEREAS, the Parks and Recreation Board recommends that the City Hall Fountain be named the "Denton South Rotary Club City Hall Memorial Fountain"; and WHEREAS, the City Council has determined that the recommendation complies with the policy and guidelines regarding the naming of parks and park facilities and has also determined that it would be proper and fitting to name the City Hall Fountain the "Denton South Rotary Club City Hall Memorial Fountain"; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Hall Fountain shall now and hereafter be known and designated as the "Denton South Rotary Club City Hall Memorial Fountain". SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ~ 2004. EULINE BROCK, MAYOR EXHIBIT 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: -2- Parks, Recreation and Beautification Board Minutes City Hall Conference Room August 2, 2004 Members present: Teresa Andress, Jo Kuhn, Geri Aschenbrenner, Ross Richardson, and Reggie Heard. Members absent: Dale Yeatts and Chuck Smith. Staff present: Janet Simpson, Emerson Vorel, Janie McLeod and Bob Tickner. Others present: Gary Calmes. Chairperson Teresa Andress called the meeting to order at 6:03 p.m. Awards and Recognition - Staff had a plaque to present to retiring board member Dale Yeatts, but he wasn't available to attend the meeting. Approval of Minutes - Geri Aschenbrenner made a motion to approve the minutes as presented. Ross Richardson seconded the motion and it was passed unanimously. ACTION ITEM Denton South Rotary Club Request to Name City Hall Fountain. Ross said he had met with Alan Nelson, with the South Rotary Club, to discuss recommendations for the naming of the fountain. It was recommended that the fountain be named: Denton South Rotary Club City Hall Memorial Fountain Dedicated to Our Past Rotarians Howard L. Stone Brandon Barnes Ross made a motion to accept the proposed name for the fountain. Geri seconded the motion and it passed unanimously. DISCUSSION ITEMS Receive a Report and Discuss the 2005 Capital Improvement Program. Janet reviewed the needs assessment for the Parks and Recreation Department, based on information compiled from the 2000 Parks and Recreation Master Plan, individual park master plans and input from citizens. Receive a Report and Discuss the 2005-2010 Strategic Plan. Janet reviewed the Strategic Plan for 2005-2010. She asked for comments or suggestions from the board. The plan will be an Action Item at the next meeting. Naming of the Skate Park. Janet reviewed the Facility Naming Policy and the need to have a naming committee. Teresa asked for volunteers to serve on the committee. The board decided to have Kathy Schaeffer work with the skate park users and get suggestions from them for the name of the park. EXHIBIT 2 Janet said more equipment for the skate park was purchased due to another park selling its' equipment. The city was able to purchase additional equipment at a very reasonable cost. The park is to open late August. DIRECTOR'S REPORT Update on Department Budget - Janet reviewed some of the budget expenses including the renovation of the Civic Center, and the supplemental package for park maintenance. Two field service maintenance employees were budgeted but hiring has to be delayed in order to meet other budget obligations. The MLK Center recreation leader position will be filled and park maintenance will be getting a new trash compactor. Janet said the Aquatic Fund was originally projected to break even but due to 31 days affected by rain the Aquatic Fund will not be able to offset the natatorium costs. Through the end of July, there were 17 days that Water Works Park was closed a portion or all day due to rain. She added that additional marketing and promotions were implemented throughout the season. Project Status Report - Jo asked about the incomplete punch list items for the Water Works Park. Janet explained that the contractor has to do some repairs on the Lazy River after the season ends. Keep Denton Beautiful Report - There were no questions on the report. Items for Next Meeting - Strategic Plan - Action Item Naming of the Skate Park- Action Item Status of the Lazy River at Water Works - Director's Report The next meeting will be Monday, August 30th at 5:30 p.m. There being no further business, the meeting was adjourned at 7:22 p.m. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Parks and Recreation Department Howard Martin, 349-8232 ~ SUBJECT: Consider adoption of an ordinance of the City of Demon naming the Skate Park located adjacem to the Water Works Park; and declaring an effective date. BACKGROUND The Park Naming Policy allows for the naming of parts or areas within a park or recreation building that is different than the park or building itself. In this case, the skate park was constructed on the Water Works Park property as a separate facility, and therefore, staff requested that the Parks, Recreation and Beautification Board form a committee to recommend a formal name. At the August 2, 2004 meeting the Parks, Recreation and Beautification Board requested that staff form a Skate Park Committee to recommend a name for the park. The Skate Park Committee consisted of a group of adults and youth who have been involved in the creation and design of the skate park. There are currently 10 members on the committee and an additional list of 20 email addresses were consulted. All four middle schools and the two high schools were asked to submit names. The high schools and middle schools created names as a project in various English classes. In addition, staff went out to the skate park on four separate occasions soliciting names from the skate park users. 38 names were submitted. The list was reduced to ten names and the middle school and high schools were asked to narrow the field of names down to five. The final five names were submitted to members of the Skate Park Committee who recommended "Skate Works" as the name for the skate park. The Parks, Recreation and Beautification Board concurred with the committee recommendation. OPTIONS City Council may accept the recommended name for the skate park, deny the recommendation or ask the Parks, Recreation and Beautification Board to submit an alternative name. RECOMMENDATION Staff supports the Parks, Recreation and Beautification Board recommendation for the naming of the skate park. ESTIMATED PROJECT SCHEDULE The skate park opened to the public on August 14, 2004. If approved, the dedication of "Skate Works" will be held on Wednesday, September 29, 2004, at 5:00 p.m. PRIOR ACTION/REVIEW Parks, Recreation and Beautification Board unanimously recommended approval of this item at their August 30, 2004 meeting. FISCAL INFORMATION Funding for the skate park was provided from 1996 bond program and through private donations. EXHIBITS 1. Ordinance 2. Parks, Recreation and Beautification Board minutes Respectfully submitted: Janet Simpson, Director Parks and Recreation Department S:XOur Documents\Ordinances\04\Skate Park Name Ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON NAMING THE SKATE PARK LOCATED ADJACENT TO WATER WORKS PARK; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton desires to name the outdoor skate park, located adjacent to Water Works Park, in accordance with the Park and Facilities Naming Policy; and WHEREAS, the chairperson for the Park and Recreation Board appointed a committee to develop a recommendation for a name for the skate park; and WHEREAS, the naming committee proposed that the skate park be named "Skate Works"; and WHEREAS, the Parks and Recreation Board recommends that the skate park be named "Skate Works"; and WHEREAS, the City Council has determined that the recommendation complies with the policy and guidelines regarding the naming of parks and park facilities and has also determined that it would be proper and fitting to name the skate park "Skate Works"; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Works". SECTION 2. approval. The skate park shall now and hereafter be known and designated as "Skate This ordinance shall become effective immediately upon its passage and PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR EXHIBIT 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAJ.~ FORM: HERBERT ,L~P..4:~OUTY,/UV~ITY ATTORNEY -2- Draft Parks, Recreation and Beautification Board Minutes Senior Center August 30, 2004 Members present: Teresa Andress, Geri Aschenbrenner, Ross Richardson, Members absent: Chuck Smith, Jo Kuhn, and Patrice Lyke. Staff present: Tickner, Janie McLeod, Emerson Vorel, and Kathy Schaeffer. and Reggie Heard. Janet Simpson, Bob Chairperson Teresa Andress called the meeting to order at 6:15 p.m. at the Senior Center. Awards and Recognition - None APPROVAL OF MINUTES. Ross made a motion to approve the August 2nd minutes as distributed. Reggie seconded the motion and it passed unanimously. ACTION ITEMS Proposed Fiber Optics Cable Route at South Lakes Park. Bob said the Denton Independent School District has requested the use of 4,300 linear feet, .0987 acres of parkland for the purpose of a new fiber optics cable to complete a communications network. The alignment is requested to connect McMath Middle School on the north end of the park and schools to the south part of the city. After reviewing all alternatives, staff recommends approval of option 3 to construct a 4,300 LF fiber optics communications line using a 0.098-acre portion of South Lakes Park. Reggie made a motion to approve the request and Geri seconded the motion. The motion passed unanimously. Proposed Gas Line Easement Airport Open Space Park. Bob said that Jerry Hess Operating Company has requested the use of parkland in order to locate a natural gas transmission line. After reviewing all other alternatives, staff recommends approval of the use of the Airport Open Space Park for the natural gas line easement. There would be no major impact on current park operations or programs. Ross made a motion to approve the request and Reggie seconded the motion. The motion passed unanimously. Strategic Plan. Janet reported that approximately every five years, the Parks and Recreation Department develops an operational Strategic Plan to guide decision-making in the department. The Board reviewed the Strategic Plan in detail at the July meeting and had requested that it be brought forward for approval. Geri made a motion to approve the Strategic Plan and Reggie seconded the motion. The motion was approved unanimously. Naming of Skate Park - Kathy reported that the Skate Park Committee is a group of adults and youth who have been involved in the creation and design of the skate park. There are currently EXHIBIT 2 Draft 10 members on the committee and an additional list of 20 email addresses were consulted. All four middle schools and the two high schools were asked to submit names. The committee recommended the name of the park to be: Skate Works. Ross made a motion to approve the recommendation and Geri seconded the motion. The motion passed unanimously. Request to Sell Alcoholic Beverages at Fuego Y Alma Event. Janet reported said that the Fuego Y Alma Committee requested to sale alcohol at the October 9th event. She added that it would be the organization's fourth year without incidents. Patrick Vasquez was there to represent the organization and gave a review of the activities to take place. Geri made a motion to approve the request to sale alcohol at Fuego Y Alma and Reggie seconded the motion. The motion passed unanimously. Discussion Items - None DIRECTOR'S REPORT Project Status Report. Bob reviewed the progress of the renovation on the Civic Center. Keep Denton Beautiful Newsletter was included in the packet and there were no questions. Geri commented that some benches at Avondale Park had been bent and wondered the cause. Janet explained that possibly some damage to the tables had occurred as a result of vandalism. The benches will be repaired. Teresa asked if the Water Works Park revenue had increased. Janet said that there had been three rounds of marking and that the weather was a deterrent to the attendance. Janet said the park would be closing after the Labor Day events. Teresa said she was very pleased that the Denton Boys Baseball Association had put together a league that will be playing at Roberts Field. She was pleased that the teams would be playing in Denton. Janet said that Patrice Lyke has joined the Board but was not able to attend tonight due attending a CIP meeting. There being no further business, the meeting was adjourned at 6:55 p.m. AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: City Manager's Office CM/DCM/ACM: Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance authorizing the City Manager to execute a personal services agreement with Barbara T. McCall Associates, Inc. to provide certain information and services with regard to legislation of interest to the city. BACKGROUND: Since 1997, Demon has joined the cities of Austin and Dallas as part of the Texas Cities Legislative Coalition that contracts for Washington representation by Barbara T. McCall Associates, Inc. Ms. McCall provides representation assistance to local governments and their agencies. As our Washington representative, Ms. McCall provides information about legislative and executive action on issues of common interest, transmitting city positions on the issues to the Congressional delegation and to the Administration, and pursuing defined projects or individual legislative priorities for each city. This includes establishing and maimaining comact with the Texas Senators and the city's Representatives. As our Washington representative, she also maintains communications with the White House and many federal agencies and departments. The services of Barbara T. McCall Associates, Inc. have been beneficial to the City of Demon in keeping elected officials and staff aware of federal gram deadlines and pending legislation that could impact the city. During this last fiscal year, Ms. McCall's services have assisted with HUD funding, airport improvements, and transportation issues. The 2003-2004 contract provided thirty-six (36) hours of assured-usage hours, optional hours not to exceed one hundred fifty (150), and expenses not to exceed $5,000. As funding for local government initiatives has become more competitive, Ms. McCall's assistance in keeping Denton's priorities before our Congressional delegation has become increasingly important. RECOMMENDATIONS: Approve the ordinance allowing the City Manager to execute the contract. PRIOR ACTION/REVIEW (Council, Boards, Commission): Previous contracts have been approved in 1998-2003 with the adoption of Ordinance No. 98- 348, Ordinance No. 99-380, Ordinance No. 2000-356, Ordinance No. 2001-321, Ordinance No. 2002- 290 and Ordinance No. 2003-293. FISCAL INFORMATION: For the first time in four years, the contract and hourly rates are increasing. The service cost of the basic contract is $27,000 including a retainer of $18,220 per one-year period, thirty-six assured-usage hours of service at $105 per hour, and reimbursable costs not to exceed $5,000. We are also including optional hours of service not to exceed one hundred fifty hours at a cost of $105 per hour. The current contract is for an amount not to exceed $39,600. The 2004-2005 contract is not to exceed $42,750. This represents a little less than and eight percent increase over the current fiscal year. The funding for the contract has been included in the 2004-2005 fiscal year budget scheduled for approval on September 21, 2004. Respectfully submitted: Betty Williams Director of Management & Public Information Attachments: Ordinance Contract S:\Our Documents\Ordinances\04\McCall Contract Ordinance 2004.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PERSONAL SERVICES AGREEMENT WITH BARBARA T. MCCALL ASSOCIATES, INC. TO PROVIDE CERTAIN INFORMATION AND SERVICES WITH REGARD TO LEGISLATION OF INTEREST TO THE CITY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton wishes to employ Barbara T. McCall Associates, Inc. to provide personal services with regard to legislation which is of interest to the City; and WHEREAS, the City of Denton will be participating with a number of other cities that have entered into similar Personal Services Agreements with Barbara T. McCall Associates, Inc.; and WHEREAS, due to the concurrent participation of other Texas cities and that Barbara T. McCall has unique qualifications and experience that no other person can offer the City during this period of time as a Personal Services Contract, this Contract is exempt from competitive bidding in accordance with Tex. Loc. Gov't Code §252.002(a)(4); and WHEREAS, the City Council deems it in the public interest to authorize the City Manager to enter into a Personal Services Contract with Barbara T. McCall Associates, Inc. for the above-mentioned legislative services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to enter into a Personal Services Agreement with Barbara T. McCall Associates, Inc., substantially in the form of the attached Agreement, which is made a part of this ordinance for all purposes, to provide information about legislation and other related personal services to the City. SECTION 2. That the City Manager is hereby authorized to make the expenditures as outlined in the attached Agreement. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 PERSONAL SERVICES AGREEMENT Between the City of Denton, Texas State of Texas, County of Denton and BARBARA T. McCALL ASSOCIATES, INC. Washington, D.C. WHEREAS, the City of Denton, ("City"), in consultation with other major cities in Texas, has determined that there is a need for jointly sponsored Washington representation; and WHEREAS, this need is particularly pressing in relation to: 1. information about legislative and executive action on issues of common interest, transmitting City positions on these issues to the Congressional delegation and to the Administration, and obtaining individual City service to pursue defined projects or individual legislative priorities; and WHEREAS, Barbara McCall, due to the concurrent participation of other Texas cities has unique qualifications and experience that no other person can offer the city during this period of time; and WHEREAS, Barbara T. McCall is known to the Cities and is capable of and willing to undertake such representation in Washington as a personal services contract exempt from competitive bidding in accordance with Section 252.022 (a) of the Texas Local Government Code; NOW, THEREFORE, the City of Denton, in association with and recognizing the concurrent participation of the Cities of Austin and of Dallas (collectively, the "Cities"), enters into this personal services agreement with Barbara T. McCall Associates, Inc. ("Consultant"). I. OBLIGATIONS OF THE CONSULTANT The Consultant will operate a unit to act as a Washington office for the Cities and head this unit and as Washington Assistant to the Cities. The Consultant will furnish requisite staff, office space, utilities, furnishings, and equipment, secretarial services, common-use office supplies and services, and general administrative support. The Consultant will consult with the "Committee" (see Section IIE) to determine issues of specific interest to the Cities and to determine policies and positions which the Cities as a group hold and wish to be pursued. In cases in which the City positions differ from or conflict with the Cities' group position, the Consultant will consult with the City and the Committee to determine the proper course of action. Information. The Consultant will provide regular information on Washington issues and events of interest to the Cities. This will be done by: a) a regular "Washington Report," b) written reports, bulletins, and memoranda on developments regarding Texas-specific issues, and c) direct phone contact. The Consultant will present federal affairs briefings for the Cities at times and places specified by the Committee. Congressional Relations. The Consultant will establish and maintain on a regular basis contact with the Texas Senators and the Cities' delegation in the House of Representatives. Administrative Relations. The Consultant will advise and consult on behalf of the City with the White House and the following federal agencies or departments: Commerce, SBA, Treasury, HUD, Labor, HHS, DOT, EPA, Interior, Justice, DOE, and such other agencies, departments and commissions as may be necessary to the performance of Washington service to the City. Individual City Services. The Consultant will initiate and pursue research, reports, meetings, consultation and other activities on matters of interest to the City and will respond to requests for similar actions from the City. She will inform the Administration and Congress of the needs of the City. Such services and activities will be provided at a cost of $105.00 per hour. Should billable costs for the contract period appear to exceed the costs specified in Sections II, B or C. The consultant will notify the City, together with her estimates of the extra amounts expected to be required, the reasons therefore, and her recommendation to the City. II. OBLIGATIONS OF THE CITY The City will contract with the Consultant for specified services for a period of one year, commencing October 1, 2004 and ending September 30, 2005. B. Service Costs t. The service cost of this Contract is composed of three elements: A retainer of eighteen thousand two hundred and twenty dollars ($18,220.00) per the one year period. b) Thirty-six assured-usage hours of service at one hundred and five dollars ($105.00) per hour, totaling three thousand seven hundred eighty dollars ($3,780.00). c) Optional use hours of service at the rate of one hundred five dollars ($105.00) per hour, not to exceed fifteen thousand seven hundred fifty dollars ($15,750.00). C. Reimbursable Costs--Not to Exceed five thousand dollars ($5,000.00). Costs incident to travel outside Washington, D.C. for long-distance telephone calls and for expedited communication services shall be reimbursed to the Consultant upon submission of its invoice to the City. It is understood that travel is to be pre-authorized by the City or the Committee. In the case of travel authorized by the Committee, the City agrees to pay its pro-rata share of the costs. Costs for the following items which exceed the allocation for such items in the basic contract cost shall, when authorized by the City and the Committee, be reimbursed to invoice: a) b) c) d) e) the Consultant upon presentation of an Subscription and dues. Printing and graphics. Supplies. Provision of local ground transportation in Washington. Rental of meeting facilities and other meeting expenses. If an expenditure under this section is authorized by the Committee, the City agrees to pay its pm-rata share. Contract costs are payable as follows: 1. The retainer and assured hourly costs of twenty two thousand dollars ($22,000) are payable, quarterly, in advance in these amounts: Octoberl, 2004 January 1,2005 Apdll, 2005 July 1, 2005 $5,500.00 $5,50O.OO $5,5OO.00 $5,5O0.OO The optional hourly costs above the first thirty-six hours of service are payable upon billing by the Consultant, after the assured hours of service have been exceeded. (Sec. II, B. 2) The Committee. The City will appoint a member to a Committee of the Cities associated in this effort. The Committee will appoint its own chairperson and determine the times and places of its meetings, The functions of the Committee are: a) to determine common positions on federal issues which the Consultant is to pursue on behalf of the Cities. b) to discuss apparent conflicts or differences on issues or projects which may arise among the Cities and to resolve them in terms of a course of action for the Consultant. 4 III. IV. to monitor the function and operation of the Washington office to determine if it is fulfilling the goals and objectives for which it was designed. d) to authorize travel and other reimbursable expenses to be incurred for the common purposes of the Cities. F. General. The City will inform the Consultant of the person(s) authorized to request services and to serve as the chief contact. The City will supply the Consultant with a summary of the federal programs in which the City is participating and other information necessary to an understanding of the City's purposes in relation to the federal govermnent. THE CITY AND THE CONSULTANT AGREE THAT CERTAIN EXCLUSIONS SHALL APPLY. The Consultant will not: A. Directly or indirectly participate in or intervene in any political campaign on behalf of or in opposition to any candidate for city office. B. Will not represent the interests of local constituents in pursuit of federal business. C. By virtue of this agreement, represent other local agencies in the City except those which are instrumentalities or agencies of the City. D. Perform any legal, engineering, accounting, or other similar professional services. E. Expend more than two thousand five hundred dollars ($2,500.00) provided by this contract in efforts to influence HUD directly, as specified in Sec 7 (d) and 13 (g) of the Department of Housing and Urban Development Act 42 USC 3535 (d) and 3537 b(g) and 24 CFR Sec. 86. t. THE CITY AND THE CONSULTANT AGREE Either party may terminate this agreement at any time by giving the other at least thirty days' written notice. VI. B. This agreement shall take effect on October 1, 2004. PROFESSIONAL COMPETENCY The Consultant agrees that in the performance of these personal services, Consultant shall be responsible to the level of competency and shall use the same degree of skill and care presently maintained by other practicing professionals performing the same or similar types of work. For the purpose of this Agreement, the key person who will be performing most of the work hereunder shall be Barbara T. McCall. However, nothing herein shall limit Consultant from using other qualified and competent members of her firm to perform the services required herein so long as they are working in a support role to Ms. McCall. Bo The City shall be able to make copies of any reports and documents prepared or obtained under the terms of this Agreement. The City shall be able to use copies of these reports and documents without restriction on their use and without further compensation to Consultant. ESTABLISHMENT AND MAINTENANCE OF RECORDS Full and accurate records shall be maintained by the Consultant at its place of business with respect to all matters covered by this Agreement. Such records shall be maintained for a period of at least three years after receipt of final payment under this Agreement. VII. AUDITS AND INSPECTION VIII. At any time during normal business hours and upon reasonable notice to the Consultant, there shall be made available to the City all of the Consultant's records with respect to all matters covered by this Agreement. The Consultant shall permit the City to audit, examine, and make excerpts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement. INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP Ao The Consultant shall perform all services as an independent contractor not under the direct supervision and control of the City. Nothing herein shall be construed as creating a relationship o f employer and employee between t he parties. T he City and Consultant agree to cooperate in the defense of claims, actions, suits, or proceedings of any kind brought by a third party which may result from or directly or indirectly arise from any negligence and/or errors or omissions on the part of the Consultant or from any breach of the Consultant's obligations under this Agreement. In the event of any litigation or claim under this Agreement in which the City is joined as a party, Consultant shall provide suitable counsel to defend City and Consultant against such claim, provided the Consultant shall have 6 the right to proceed with the competent counsel of its own choosing. The Consultant agrees to defend, indemnify, and hold harmless the City and all of its officers, agents, servants, and employees against any ail such claims to the extent of coverage by Consultant's commercial liability policy. The Consultant agrees to pay all expenses, including, but not limited to attorney's fees, and satisfy all judgments which may be incurred or rendered against the Consultant's commercial liability insurance policy. Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue under either law or equity, including, without limitation, a cause of action for specific performance or for damages, a loss to the City resulting from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. Consultant shall maintain and shall be caused to be in force at all times during the term of this Agreement, a legally binding policy of commercial liability insurance, with a rating of at least A- with Best Rated Carders. Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional a ct a nd/or error o r o mission, i n an amount not 1 ess than $ 500,000 combined single limit coverage occurrence. In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to forthwith advise the City thereof; and in such event, the consultant shall, prior to the effective date of change or cancellation, serve substitute policies furnishing the same coverage. The Consultant shall provide a copy of such policy o r the declarations page of the policy or a certificate of insurance, whichever is reasonably satisfactory, to the City through its City Manager simultaneously with the execution of this Agreement. IX. COMPLIANCE WITH LAWS The consultant shall comply with all applicable laws. X. GOVERNING LAW This agreement shall be govemed by the laws of the State of Texas, venue and jurisdiction of any suit or cause of action arising under this agreement shall lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas. 7 In wimess hereof, the City of Denton, Texas, has caused this agreement to be executed by/ts duly authorized City Manager and Consultant has executed this agreement through its duly authorized President, dated this __ day of 2004. FOR THE CITY OF DENTON, TEXAS Michael A. Conduff City Manager Attest: Jennifer Walters City Secretary Barbara T. McCall, President Barbara T. McCall Associates, Inc. 1212 New York Ave, NW Washington, DC 20005 202-842-5430 Federal Employer ID #: 52-1906049 Approved to legal form: Herb Prouty, City~ttomey AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: September 21, 2004 City Manager's Office Mike Conduff, City Manager SUBJECT Consider nominations/appointments to the City's Boards and Commissions. BACKGROUND Council Member Redmon has nominated Daniel Farmer for the vacant position on the Animal Shelter Advisory Committee. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 Planning and Development Jon Fortune, Assistant City Manager SUBJECT: SI03-0012 (Tree Preservation) Hold a public hearing and consider adoption of an ordinance amending Sub-Chapters 3 (Procedures), 13 (Site Design Standards), and 23 (Definitions) of the Development Code and amending the Application and Site Design Criteria Manuals associated with tree preservation. The Planning and Zoning Commission recommends approval (6-0). BACKGROUND: At the August 3, 2004 the City Council directed staff to make the following revisions to the regulations: 1. Remove the Agricultural exemption from the regulations. 2. Include the "Undesirable" tree list (now called "Secondary Trees") and mitigation ratios for secondary trees in the regulations. 3. Revised the Infill / Small Lot table to include Secondary Tree requirements at 50% of the Quality Tree requirements. 4. Add a non-activity clause as an exemption. 5. Clarify that the gas well mitigation (1:1) requirement applies to gas wells developing in the floodplain fringe. In addition to those revisions, the Tree Mitigation Table was revised as proposed by John Cooper, Denton County Extension Horticulturist. The revised regulations are contained in Attachments 1 (clean copy) and Attachment 2 (redline - strikeout copy). Those documents are in the same format as has been previously reviewed. However, that format had to be revised so the regulations could be incorporated into the Development Code (Attachment 6). One of the major format changes was the inclusion of two tables (Tables 35.13.7.A and B) identifying the majority of the preservation and mitigation requirements. Additionally, the street tree regulations were moved from to 35.13.6 to 35.13.7 to consolidate all landscape requirements in one location, Attachments 3, 4 and 5 included the additions and/or revisions to the Criteria Manuals associated with the new regulations. PRIOR ACTION/REVIEW (Council, Boards, Commissions) November 5, 2003 November 12, 2003. December 2, 2004 January 6, 2004 City January 28, 2004 City February 4, 2004 City February 11, 2004 City February 18, 2004 City February 25, 2004 City March 10, 2004 City April 5, 2004 City May 18, 2004 City July 1, 2004 City August 3, 2004 City Planning and Zoning Commission work session. Planning and Zoning Commission public hearing City Council work session. Council Council Council Council Council Council Council Council Council Council Council public hearing Tree Preservation Sub-committee meeting Tree Preservation Sub-committee meeting Tree Preservation Sub-committee meeting Tree Preservation Sub-committee meeting Tree Preservation Sub-committee meeting Tree Preservation Sub-committee meeting Tree Preservation Sub-committee meeting work session Tree Preservation Sub-committee meeting work session FISCAL INFORMATION It is likely that the requirements of the proposed regulations will increase the cost of development on properties with trees. The regulations will also increase air and water quality and property values. RECOMMENDATION The Planning and Zoning Commission recommends approval of the "original" ordinance 6-0, Roy absent. ATTACHMENTS 1. Revised Tree Preservation Regulations 2. Red line strike out copy of regulations 3. Changes/additions to Site Design Criteria Manual 4. Tree Inventory Plan Check List (added to Application Criteria Manual) 5. Tree Preservation / Replacement Plan Checklist ((added to Application Criteria Manual) 6. Draft Ordinance Prepar.ed b~: .~ Assist" A __,_.ant Director of Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development Attachmnet 1 DRAFT TREE PRESERVATION ORDINANCE Purpose and Intent The Denton Plan identifies the importance of environmental management. The purpose of these regulations is to promote the preservation of trees, tree stands, including but not limited to remnants of the Cross Timbers Forest and existing tree canopy, to protect trees during construction, to facilitate site design and construction that contribute to the long term viability of existing trees which improves environmemal conditions, specifically to comply with air and water quality regulations, to increase property values and to develop a process to control the removal of trees. It is the further purpose of this ordinance to achieve the following broader objectives: A. Prevent untimely and indiscriminate removal or destruction of trees. B. Maimain and enhance a positive image of the City. C. Protect trees and promote the ecological, environmental and aesthetic values of the City. D. Preserve historic trees. E. Provide for a permitting and enforcemem procedure. Applicability A. Unless exempt under Subsection C, this Subchapter shall apply to: 1. Undeveloped land. 2. All property to be redeveloped including additions or alterations, but not including interior alterations or exterior alterations that do not change the footprim of the building. 3. Gas Well Development including but not limited to gas well transmission lines. 4. Right of way, streets, parks, and other public property under the jurisdiction of the City of DeNon. To the extent there is a conflict between this Subsection and any other Subsection including but not limited to Subsection 35.17.9 (Upland Habitat Developmem Standards) the more stringent requirement shall apply that preserves the largest quantity of trees applies. To the extent there is a conflict between this Subsection and Subsection 35.22.5.A.8.c (Gas Well Drilling and Production), the gas well regulations, which requires 1:1 mitigation, shall apply. Exemptions: 1. Developments that have a completed application on file for a final or preliminary plat for a single-family developmem or a building permit, whichever is applicable, as of the effective date of this ordinance. 2. Any development for which construction has begun on infrastructure improvements pursuant to an approved three-way construction contract, including roads, as of the effective date of this ordinance. In the event that construction of all infrastructure improvements in such a development ceases for a continuous period of 180 days or longer, this exemption shall cease to apply on the 181st day DRAFT TREE PRESERVATION ORDINANCE Page 1 of 18 September, 2004 DRAFT TREE PRESERVATION ORDINANCE after cessation of construction unless the City accepts the infrastructure improvements. 3. Property on which a single-family or two-family residential dwelling unit(s) exists. 4. Trees located in the visibility triangle area, as defined in the Transportation Criteria Manual. 5. Public utility projects associated with a master plan, conducted by a public utility or a municipal owned utility. 6. Public Utilities have the right to trim, cut, and/or remove any and all trees that: a. Interfere with or encroach upon the operations of existing public utilities; or b. Create a safety issue for utility crews; or c. Create a safety issue for the public. 7. City Landfill and Airport. 8. Nursery trees that are planted and growing on the premises of a Wholesale Nursery that are intended for sale in the ordinary course of business. 9. Any tree determined to be diseased, dying or dead, by a qualified professional or creating a public nuisance or damaging a foundation. la. Any tree determined to be causing a danger or be in hazardous condition as a result of a natural event such as tornado, storm, flood or other act of God that endangers the public health, welfare or safety and requires immediate removal. 11. Clearing of understory necessary to perform soil borings, boundary surveying of real property or to conduct tree surveys or inventories As long as the clearing for surveying shall not exceed a width of two (2) feet for general survey (i.e. of easement boundary, etc.) and eight (8) feet for survey of property boundary lines and any tree having a ten (la) inch dbh or greater shall not be removed under this exemption during such boundary or general surveying. 12. Capital Improvement Projects awarded prior to the effective date of this Subsection. 13. Property zoned Rural Residential (RD-5) or Rural Commercial (RC) Permit required A. No person, directly, or indirectly, shall cut down, destroy, remove or move, or intentionally destroy or damage any Quality Tree, Protected Tree, or Historic Tree without first obtaining a tree removal permit and complying with the requirements of this Subsection. B. No grading shall take place on any undeveloped property that contains trees subject to this Subsection without obtaining a tree removal permit. C. No heavy equipment shall be moved onto a site prior to all applicable permits being issued. DRAFT TREE PRESERVATION ORDINANCE Page 2 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE D. Trees greater than 3 "dbh and not identified as a Quality Tree, Protected Tree, or Historic Tree within this Subsection may be removed with a permit. E. Trees less than 3" dbh and not identified as a Historic Tree may be removed without a permit. Permit Review and Approval Process A. The Director shall adopt rules establishing the requirements for the permitting and approval process in the Application Criteria Manual. The rules shall include information required by the Director to determine if the application is complete. B. A request for tree removal permit shall be submitted and approved prior to the removal of any Quality Tree, Protected Tree, or Historic Tree in the City. C. A complete application shall be submitted along with the application fee, if required. The fees shall be established by City Council and published in the Application Criteria manual. D. A Tree Inventory Plan and a Tree Replacement/Mitigation Plan, if required, must be submitted with the tree removal permit application. E. Permits for tree removal issued in connection with a building permit or clearing and grading permit shall be valid for the same period of time. Tree removal permits issued not in connection with a building permit or clearing and grading permit are valid for 180 days. F. After the tree removal permit is issued, the permit holder shall post a tree protection sign, supplied by the City, at each entrance to the property and at any other location designated by the City. G. Upon the request of the applicant, the Planning Director shall be authorized to work with the owners, developers, and builders to make non-substantive changes, within the scope of the ordinance, to plans, permits, and other requirements throughout the development and construction processes that will provide the greatest reasonable tree survival. The decision of the Planning Director may be appealed by the applicant to the Planning and Zoning Commission under Subsection 35.3.5. H. The applicant may file an application for relief from the Tree Preservation/Mitigation requirements in this Subsection pursuant to Subsection 35.3.11 on grounds therein specified to the City Council within ten (10) calendar days of the posting of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.3.11. DRAFT TREE PRESERVATION ORDINANCE Page 3 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Designations A. Protected Trees Any healthy tree with an eighteen (18) inch or greater dbh and not in a Quality Tree Stand or a Mesquite, Bols Arc, Locust Hackberry and/or Cottonwood species. All trees greater than eighteen (18) inches dbh shall be considered a Protected Tree unless a detailed tree inventory is submitted verifying the presence of Mesquite, Bois Arc, Locust Hackberry and/or Cottonwood species. Historic Trees 1. A Historic Tree is a healthy tree that stands at a place where an event of historic significance occurred that had local, regional, or national importance; or at the home of a citizen who is famous on a local, regional, or national basis. 2. A tree may also be considered historic if it has taken on a legendary stature to the community; mentioned in literature or documents of historic value; or considered unusual due to size, age or has landmark status. DRAFT TREE PRESERVATION ORDINANCE Page 4 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 3. The Historic Landmark Commission will make recommendations for Historic Tree designations to the Planning and Zoning Commission (which will conduct a public hearing and include property owner notification) for ultimate approval by the City Council. Upon designation, each tree shall be added to a Historic Tree Registry map to be maintained by the Planning and Development Department. Quality Trees All healthy trees that have a dbh that is greater than six (6) inches, but is less than eighteen (18)inches and not within a Quality Tree Stand. All trees shall be considered Quality Trees unless a detailed tree inventory is submitted identifying Secondary Trees. Quality Tree Stand Three or more contiguous Quality Trees whose canopies are generally clustered together. All Tree Stands shall be considered Quality Tree Stands unless a detailed tree inventory is submitted identifying the tree stand as an Secondary Tree Stand. Large Secondary Trees All healthy Mesquite, Bois Arc, Locust Hackberry and/or Cottonwood trees with an eighteen (18) inch or greater dbh.. Secondary Trees All healthy Mesquite, Bois Arc, Locust Hackberry and/or Cottonwood trees that have a dbh that is greater than six (6) inches, but is less than eighteen (18)inches. Secondary Tree Stand Three or more contiguous Secondary Trees whose canopies are generally clustered together. An Secondary tree stand must consist of a minimum eighty (80) percent of Secondary tree species. Preservation The following shall apply unless an application for relief is filed and approved under Subsection 35.3.11. A. Any tree designated as a Historic Tree shall be preserved. B. Any tree designated as a Protected Tree or a Large Secondary Tree shall be preserved unless mitigated under the requirements of Subsection 7. C. The minimum percentages of all dbh or percentage tree canopy of Quality Trees and Quality Tree Stands that must be preserved or mitigated are shown on Table 1. DRAFT TREE PRESERVATION ORDINANCE Page 5 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Table 1 Single-family & Multi-family and Mitigation Duplex Dwellings Non-Residential Uses Up to 50% of the percentage 20% within the 25% within the required to be preserved may Quality Trees and entire entire be mitigated under the Quality Tree Stands development, development, requirements of this Subsection. Up to 100% of the percentage Secondary Trees 10% within the 12.5% within the required to be preserved may and Secondary Tree entire entire be mitigated under the Stands development, development, requirements of this Subsection. Do mo All percentages relating to preservation stated within this section shall be based on the initial tree inventory plan. Any subsequent redevelopment of property must minimally preserve the applicable percentage of the total dbh of quality trees as indicated by the initial tree survey. A notation shall be placed on the Site Plan or Final Plat identifying each Quality Tree, Quality Tree Stand, Protected Tree and/or Historic Tree required to be preserved under this Subsection. The notation shall limit any future land disturbing activity or construction that would impact and/or damage the tree(s) to be preserved or protected and shall run with the land and be binding upon all successors and assigns of the current owner. Mitigation If preservation cannot be reasonably achieved, then the following mitigation standards shall apply. A. Protected Trees may be removed if mitigated at a ratio of 1:2 (every 1" removed requires 2" towards mitigation required under this Subsection). B. Large Secondary Trees may be removed if mitigated at a ration of 1:1. C. Quality Trees and Secondary Trees may be removed in excess of the minimum preservation requirement contained in Table 1 provided the excess removal is mitigated as identified in Table 2 DRAFT TREE PRESERVATION ORDINANCE Page 6 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Table 2, Mitigation (^) (B) (c) Method Description Restrictions 1. Establishment and The cumulative total of all Trees that are required to maintenance of new trees Quality Trees removed in be planted in compliance on site at the required ratio excess of the minimum with other development in Column B. preservation requirement regulations (parking lot contained in Table 1 shall canopy, buffers, street be mitigated at a ratio of trees) shall not be counted 1:1.5 (every 1" removed for the purpose of requires 1.5" towards satisfying mitigation mitigation), requirements. Only tree species The cumulative total of all identified on the Tree Secondary Trees removed Mitigation Replacement in excess of the minimum Table, located in the Site preservation requirement Design Criteria Manual, shall be planted for contained in Table 1 shall be mitigated at a ratio of mitigation purposes. 1:0.75 (every 1" removed If more than ten trees will requires 0.75" towards be planted for mitigation, mitigation), a minimum of four species, from the Tree Mitigation Replacement Table shall be planted. In such case no one specie may total more than 50% of the total number of trees planted. 2. Preservation of existing See Subsection 7.F. See Subsection 7.F. trees off-site within a Tree Bank. See Subsection 7.F. DRAFT TREE PRESERVATION ORDINANCE Page 7 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 3. Plant new trees on The cumulative total of all Off-site plantings shall Public Property at the Quality Trees removed in also include maintenance required ratio identified in excess of the minimum and irrigation for a period Column B. See preservation requirement of not less than three (3) Subsection 9. contained in Table 1 shall years. Security for the be mitigated at a ratio of cost of maintenance shall 1:1.5 (every 1" removed be in the form of a cash requires 1.5" towards bond, surety bond, or mitigation), letter of credit. The cumulative total of all Secondary Trees removed in excess of the minimum preservation requirement contained in Table 1 shall be mitigated at a ratio of 1:0.75 (every 1" removed requires 0.75" towards mitigation). 4. Payment to the tree See subsection E of this See subsection E of this mitigation fund. See Section. Section. Subsection E of this Section. 5. Any combination of Method 1, 2, 3 and 4. C. Each replacement tree shall be a minimum of 2" caliper measured 6" above grade and at least 5' in height when planted. D. Upon completion of the three-year landscape establishment period, for replacement trees, the City shall inspect the trees and determine whether ninety percent (90%) of the trees are healthy and have a reasonable chance of surviving to maturity. Upon such a finding, the City shall release the currency, bond or letter of credit. In the absence of such a finding, the Applicant shall be notified to replace any unhealthy or dead trees. If the applicant does not take remedial steps to bring the property into compliance, the City shall make demand for payment on the cash bond, surety bond, or letter of credit. The City may use all legal remedies to enforce this subchapter in addition to making demand on the security provided herein. E. Tree Fund 1. The City shall administer the Tree Fund. Tree funds shall be used to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a city-wide tree inventory and to educate citizens and developers on the benefits and value of trees. DRAFT TREE PRESERVATION ORDINANCE Page 8 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 2. The applicant shall pay the fees established by City Council and published in the Development Review Fee Schedule in the Application Criteria Manual. The fee shall be based on the fair market value of materials and labor at the time of planting and the the reasonable estimated cost for maintenance and irrigation for a period of three (3) years. 3. Fees contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and Grading Permit on all Commercial, Industrial, or Multi-Family Residential buildings, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat application for all Residential and Non-Residential Subdivisions as may be applicable. 4. Voluntary contributions for tree preservation shall be placed in the Tree Fund. F. Tree Banks 1. Areas of a minimum of one acre that have the characteristics of Cross Timber Forests are eligible to be classified as a Tree Bank. 2. Designation of a Tree Bank and transfer of tree credits shall be approved by the DRC Chairman. 3. Tree Banks shall be preserved with a permanent easement that shall limit any future land disturbing activity or construction that would impact and/or damage the tree(s) and shall run with the land and be binding upon all successors and assigns of the current owner. Methods for the long-term conservation of said trees may include permanent conservation easements, restrictive covenants, or other such legal mechanisms. 4. Only portions of a Tree Bank not designated towards tree credit may be used for mitigation as identified in this Subsection. 5. Trees that are required to be preserved in compliance with other development regulations shall not be credited towards the Tree Bank. G. Areas that are un-developable, including but not limited to floodplain, wetlands and riparian areas, shall not be designated as Tree Banks. DRAFT TREE PRESERVATION ORDINANCE Page 9 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 8. Small Lot / Infill Exclusion The following table identifies the required preservation and mitigation requirements for small lots and infill lots. Small Lot Infill Exclusions Table Size Preservation & Mitigation Requirement Less than ½ acre None Protected Trees mitigated at a 1:0.5 ratio. ½ acre to 1 acre Large Secondary Trees mitigated at a 1:0.25 ratio Protected Trees mitigated at a 1:1 ratio. 1 acre to 2.5 acres Infill Large Secondary Trees mitigated at a 1:0.5 ratio Protected Trees mitigated at a 1:1.5 ratio. Lots Large Secondary Trees mitigated at a 1:0.75 ratio Quality Tree requirements reduced by 50% (10% sf & 12.5%), may 2.5 acres to 5 acres mitigate an additional 50% at a 1:1 ratio. Secondary Tree requirements reduced by 50% (5% sf & 6.25%), may mitigate an additional 50% at a 1:0.5 ratio. Protected Trees mitigated at a 1:0.5 ratio. Less than ½ acre Large Secondary Trees mitigated at a 1:0.25 ratio Protected Trees mitigated at a 1:0.75 ratio. ½ acre to 1 acre Non- Large Secondary Trees mitigated at a 1:0.325 ratio Protected Trees mitigated at a 1:1.25 ratio. Infill Large Secondary Trees mitigated at a 1:0.625 ratio Lots Quality Tree requirements reduced by 50% (10% sf & 12.5%), may 1 acre to 2.5 acres mitigate an additional 50% at a 1:1 ratio. Secondary Tree requirements reduced by 50% (5% sf & 6.25%), may mitigate an additional 50% at a 1:0.5 ratio. Alternative Tree Preservation Plan An applicant may propose an Alternative Tree Preservation Plan which meets or exceeds the goals and objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Tree Preservation Plan provides the option to address the criteria through a flexible discretionary process reviewed by the Planning and Zoning Commission utilizing the Planning and Zoning Commission Procedure process outlined in Subchapter 3. A. Criteria for Approval. The goals and objectives which must be met, and by which the proposal will be judged are: 1. The proposed Alternative Tree Preservation Plan adequately achieves, or is an improvement on, the intent of the requirements of this Subsection.. 2. Assure quality development that fits in with the character of Denton. DRAFT TREE PRESERVATION ORDINANCE Page 10 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 10. Preservation Incentives A. Tree Credits 1. All Quality Trees and Quality Tree Stands that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements as identified in Table 3. 2. All Quality Tree Stands with existing understory that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements at a ratio of 1:2. 3. Unless trees preserved are an integral part of the parking lot design, they will not be credited towards parking lot canopy requirements. 4. Unless trees preserved are an integral part of a required buffer design, they will not be credited towards buffer requirements Table 3 Credit Received towards landscape canopy requirements for Preservation Beyond Minimum Requirements Identified in Table 1 Tree Classification Credit Ratio Quality Tree 1:1.3 Quality Tree - Oak Species 1:1.5 Quality Tree Stands without understory 1:1.55 Quality Tree Stands consisting of a minimum 90% Oak Species 1:1.75 Quality Tree Stands with understory 1:1.8 Quality Tree Stands consisting of a minimum 90% Oak Species 1:2 with understory B. Parking Spaces For every twelve (12) dbh of Quality Tree(s) that have been protected on site, beyond the minimum requirements identified in Table 1, one (1) parking space may be added to or subtracted from the required number of parking spaces up to a fifteen (15) percent increase or decrease. Upon the approval of the Director of Planning and Development, a waiver of up to thirty (30) percent may be granted. C. Parking Lot Design The Director of Planning and Development may allow parking lot design and parking lot landscaping requirements to vary from adopted standards to preserve existing trees. D. Subdivision Design The following incentives may be approved by the DRC Chairman and must be commensurate with the quality and character of the trees to be preserved: DRAFT TREE PRESERVATION ORDINANCE Page 11 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 1. Block Length may be increased up to twenty five (25) percent. 2. Cul De Sac Length may be increased up to twenty five (25) percent. 3. Alternative sidewalk locations. 4. Offset street location within a right-of-way. Other Incentives The employment of the following incentives must be approved by City Council and must be commensurate with the quality and character of the Trees to be placed within a conservation easement or otherwise conserved and the extent to which the preserved land contributes to the preservation of the remnants of the Cross Timber Forest. Incentives may include but are not limited to: 1. Fee waivers or credits, 2. Reduced open space/park land dedication requirements, 3. Reduction of monetary assessments relative to agricultural rollback taxes, 4. Tax abatements, 5. Tax Increment Financing, 6. Chapter 380 grant of money, 7. Transfer of Development Rights, and/or 8. Purchase of Development Rights - purchase by Government or Trust. 11. Enforcement A. The City Arborist, Building Official or an authorized representative of the City shall have the authority to place a Stop Work Order on any activity involving the removal of Protected Tree(s), Historic Tree(s) Quality Tree(s) or Quality Tree Stand(s) or that may otherwise endanger trees contrary to the provisions of this Subsection and applicable Criteria Manuals. The Building Official may deny all Permits and Certificates of Occupancy for any site which is not in compliance with this Subsection and applicable Criteria Manuals. B. Each tree removed in violation of this Subsection shall constitute a distinct and separate offense. C. Each tree preserved or planted under this Subsection that is removed, destroyed or dies within three (3) years of approval shall constitute a distinct and separate offense. D. It shall be a defense that trees are injured or destroyed by natural causes, natural disasters, including but not limited to tornadoes, straight-line winds, ice storms, fire, floods, hail, or lightning strikes, or through the independent unauthorized actions of third parties. E. The enforcement and penalty provisions of Subsection 35.1.10.4 shall apply to this Subsection. DRAFT TREE PRESERVATION ORDINANCE Page 12 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Plan Submissions (To be located in the Application Criteria Manual) A. Tree Inventory Plan. A tree inventory plan shall delineate site boundaries and site trees by type, size (dbh) and/or canopy and species. An inventory map shall be prepared by a registered landscape architect, urban forester, botanist, arborist or other qualified professional and be submitted with a preliminary plat and/or building permit application. B. Tree Preservation/Replacement Plan. A tree preservation plan shall be submitted before the approval of a final plat and/or building permit and shall contain sufficient detail to show the following: 1. The location of existing and proposed improvements; 2. The limits of clearing and grading; 3. The location, size and health of all existing trees to remain, including tree credit calculations (canopy coverage) and methods proposed to comply with tree protection requirements during construction; 4. The location of any and all permanent conservation easements, restrictive covenants, or other such legal mechanism to allow for the long-term conservation of any and all trees required to be preserved. 5. The location, size and health of all existing trees proposed to be removed, including calculations (total dbh removed in excess of minimum requirements) to determine the replacement requirements; 6. Identification of all trees eligible for preservation; 7. The location and dimensions of boundary lines. 8. If Tree Stand credits are proposed, the type and species of existing understory plants (if any). C. Simplified Survey. 1. An aerial photo of the property showing the tree coverage may be used to identify groups of trees that will be preserved if mitigation is not proposed. 2. Large tree stands (greater than 1,000 square feet), which will be mitigated, may be inventoried by performing a detailed study within a specified 100 foot by 100 foot area. The study area shall be a representative sample of the entire tree stand and must be approved by the City prior to performing the survey. The survey shall include the size, species and health of all existing trees within the area. The results of the survey will be applied to the total area of the tree stand to determine the total dbh within the tree stand. 3. If no Protected Trees, Historic Trees, Quality Trees or Quality Tree Stands exist on the property, a letter stating what does exist on the property may be submitted in lieu of a survey. D. The Tree Inventory Plan and the Tree Preservation Plan may be combined on one document. DRAFT TREE PRESERVATION ORDINANCE Page 13 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Protection (To be included in the Site Criteria Manual) Construction Plans shall include necessary notes and details to ensure the viability of Protected Tress, Historic Trees, Quality Trees and/or Quality Tree Stands (Trees) including their roots, during construction. A. All trees identified on the tree preservation plan required to be preserved shall be protected during construction. All tree protection measures shall be in place and approved prior to the commencement of any on-site construction. Protection measures such as fencing shall be maintained at all times during construction. B. The developer shall not establish and maintain a construction entrance that is within the critical root zone of any Tree unless the root zone is adequately protected. C. Material intended for the use in construction or waste materials accumulated due to excavations or demolition shall not be placed within the limits of the critical root zone. D. Equipment shall not be cleaned or other foreign materials deposited or allowed to flow overland within the critical root zone of a protected tree. This includes without limitation, paint, oil, solvents, asphalt, concrete, mortar or similar materials. E. Signs, wires or other objects, other than those of a protective nature shall not be attached to any Tree. However, lighting of a decorative nature may be attached to a Tree. The lighting shall be attached in a manner as not to damage the protected tree. F. Vehicular and or construction traffic or parking shall not take place within the limits of the critical root zone of any Tree other than on an existing paved surface. This restriction does not apply to access within the critical root zone for the purpose of clearing underbrush, which shall only be done by hand methods, vehicular traffic necessary for routine utility maintenance or emergency restoration of utility services or routine mowing operations. G. Grade changes shall be allowed within the limits of the critical root zone of any Tree only upon approval by the city. If approved, major grade changes (i.e. four inches [4"] or greater) within the critical root zone of a Tree will require additional measures to maintain proper oxygen and water exchange with the roots. Root pruning will be required when disturbance will result in root exposure. Root pruning shall be completed a minimum of two (2) weeks prior to any construction activity within the critical root zone of the protected tree. H. No paving with asphalt, concrete or other impervious materials shall occur within the critical root zone of a Tree. I. In those areas where a Tree is within 50 feet of a construction area, a protective fence, minimum of four feet (4') in height, shall be erected and maintained outside the critical root zone of each Tree. The protective fencing shall only be required on the subject site, if the critical root zone extends onto an adjacent property. J. Boring of utilities under Trees shall be required in those circumstances where it is not possible to trench around the critical root zone of a Tree. When required, the length DRAFT TREE PRESERVATION ORDINANCE Page 14 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Ko Lo of the bore shall be the width of the critical root zone plus two feet (2') on either side of the critical root zone and shall be at a minimum depth of 48 inches. Any physical damage to a Tree preserved for credit that is considered to place the survival of the Tree in doubt shall be eliminated as a credited tree and will require additional trees to be planted in its place at the required ratio. Where Tree removal is allowed through an exemption or by a tree removal permit and the root system is intertwined with the protected trees that are intended to be saved, the tree shall be removed by flush cutting with the natural level of the surrounding ground. Where stump removal is also desired, the stump grinding shall be allowed, or upon approval of the City, a trench may be cut between the two trees sufficient to cut the roots near the tree to be removed, thereby allowing removal of the remaining stump without the destruction of the root system of the saved tree. Tree Planting Restrictions A. Bo Co (To be included in the Site Criteria Manual) Overhead Lines: Any required replacement tree(s) shall not be planted within an area (both vertically and horizontally) such that the mature canopy will be within ten feet (10') of any overhead utility lines. Underground Utilities: Any required replacement trees or street trees shall not be planted within 5' of underground public utility lines, including water lines, sewer lines, transmission lines, or other utilities. No trees may be planted within 10' of a fire hydrant. Street Comers: No tree shall be planted in the visibility triangle area, as defined in the Transportation Criteria Manual. The Tree Mitigation Replacement Table will be incorporated into the Site Criteria Manual (Original Table replaced with J. Cooper's Table) DRAFT TREE PRESERVATION ORDINANCE Page 15 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Mitigation Replacement Table Mature Mature Common Name Botanical Name Height Spread Pecan Carya illinoensis 70' 70' White ash Fraxinus americana 70' 60' Shumard red oak Quercus shumardii 70' 50' American elm Ulmus americana 70' 70' Bur oak Quercus macrocarpa 60' 60' Bald cypress Taxodium distichum 60' 30' Cedar elm Ulmus crassifolia 60' 40' American sweetgum Liquidambar styraciflua 50' 30' Live oak Quercusfusiformis or Q. 50' 50' virginiana Chinkapin oak Quercus muehlenbergii 50' 40' Common persimmon Diospyros virginiana 40' 30' Texas ash Fraxinus texensis 40' 30' Afghan Pine Pinus eldarica 40' 30' Chinese pistache Pistacia chinensis 40' 40' Lacebark elm Ulmus parvifolia 40' 40' Winged elm Ulmus alata 30' 30' Eastern redbud Cercis canadensis 25' 25' Yaupon holly Illex vomitoria 20' 15' Crape myrtle Lagerstroemia indica 20' 15' Mexican plum Prunus mexicana 20' 20' Eve's necklace Sophora affinis 20' 15' Definitions (To be included in Subchapter 23 of the Code) Clear Cutting: The removal of all of the trees or a significant majority of the trees within an area. Critical Root Zone (CRZ): The area of undisturbed natural soil around a tree defined by a concentric circle with a radius equal to the distance from the trunk to the outermost portion of the drip line but not less than one foot radius for each one inch dbh. dbh: Diameter at breast height (dbh) is the tree trunk diameter measured in inches at a height of four and one-half (4 ½) feet above existing ground level. DRAFT TREE PRESERVATION ORDINANCE Page 16 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE For single-trunk trees, the width shall be measured at four and one-half feet (4 ½ ') above ground level. For multi-trunk trees, combine the diameter of largest stem or trunk with one-half of the diameter of each additional stem or trunk, all measured at four and one-half feet (4 ½ ') above ground level. Drip Line: A vertical line run through the outermost portion of the canopy of a tree and extended to the ground. Healthy Tree: A healthy tree is a tree that is vigorously growing and is free of structural problems such as hollows or voids, free of disease, or insect problems and has a root system that is large enough to support its above ground mass. Limits of Construction: Delineation on a graphic exhibit, which shows the boundary of the area within which all construction activity will occur. Public Utilities: For the purposes of tree preservation provisions of the Denton Development Code, the term, Public Utilities includes public sanitary sewers, public water mains, public streets, public storm sewers, public detention ponds municipally- owned electric utilities, electric cooperatives, investor- owned electric utilities, telephone companies, cable television companies, and other utilities defined under Texas law as "public utilities," as well as any contractor hired by these utilities. Protective Fencing: Temporary chain link fence, wire fence, orange vinyl construction fence, snow fencing or other similar fencing with a minimum four-foot (4') height. Qualified Professional: A qualified professional is a person with a minimum of a Bachelor of Science Degree in any of the following disciplines: Forestry, Horticulture, Botany and/or Plant / Soil Science or, an Arborist that has been certified by the International Society for Arboriculture, a Texas Certified Nursery Professional, a Texas Master Certified Nursery Professional certified by the Texas Nursery and Landscape Association or a Licensed Landscape Architect. Removal: Removal means an act that causes or may be reasonably expected to cause a tree to die including uprooting, severing the main trunk, damaging the root system and excessive pruning. Root Pruning: Shall mean to cut away, remove, cut off or cut back all or parts of the root. All root pruning shall be in accordance with approved methods set forth in the National Arborist Association Standards. Tree Protection Sign: A sign furnished by the City upon approval of a tree survey or tree permit that describes prohibited conduct detrimental to trees. Understory: A grouping of native, noninvasive low-level woody, herbaceous, or ground covers species with stems less than 1 inch dbh. 35.3.11 Tree Preservation Relief Provisions (This section will be added to Subchapter 3 (Procedures) of the Development Code. DRAFT TREE PRESERVATION ORDINANCE Page 17 of 18 July, 2004 DRAFT TREE PRESERVATION ORDINANCE mo Bo Co Do mo The purpose of this provision allows a determination of whether the application of the Demon Developmem Code as applied to a Tree Removal Application and related developmem applications, would if not modified or other relief grained, may unreasonably burden the developmem of the property. A property owner or his authorized agem may file an application for relief under this Subsection following a final decision to deny or conditionally gram an application for a Tree Removal Permit. The Director has the authority to establish requiremems for Applications for Tree Preservation Relief in the Application Criteria Manual. No application shall be accepted for filing umil it is complete and the fee established by the City Council has been paid. Upon approval of an application for relief in whole or in part by the City Council, the Director shall process the Tree Removal Permit and related development applications pursuam to the relief grained on the application for relief approved by the City Council. A denial of an application for relief by the City Council is a final determination. Criteria for Approval. In deciding whether to gram relief to the applicam, the City Council shall consider whether there is any evidence from which it can reasonably conclude that the application of all or a part of the provisions of the Denton Development Code that apply to tree preservation may deprive the applicant of all economically viable use of the property, based on the following factors: 1. Whether there is a unique physical circumstance on the property. 2. Whether the proposed design has minimized the loss of trees to the extent possible. 3. Whether preservation and/or mitigation unduly burdens the development of the property. (This will be added to Subsection 35.3.5) An Alternative Tree Preservation Plan may be approved by the Planning and Zoning Commission, which proposes an alternative to strict compliance with the provisions of this Subsection if the Planning and Zoning Commission finds that such plan adequately achieves, or is an improvement on, the intent of the requirements of this Subsection. DRAFT TREE PRESERVATION ORDINANCE Page 18 of 18 July, 2004 Attachment 2 DRAFT TREE PRESERVATION ORDINANCE Purpose and Intent The Denton Plan identifies the importance of environmental management. The purpose of these regulations is to promote the preservation of trees, tree stands, including but not limited to remnants of the Cross Timbers Forest and existing tree canopy, to protect trees during construction, to facilitate site design and construction that contribute to the long term viability of existing trees which improves environmental conditions, specifically to comply with air and water quality regulations, to increase property values and to develop a process to control the removal of trees. It is the further purpose of this ordinance to achieve the following broader objectives: A. Prevent untimely and indiscriminate removal or destruction of trees. B. Maintain and enhance a positive image of the City. C. Protect trees and promote the ecological, environmental and aesthetic values of the City. D. Preserve historic trees. E. Provide for a permitting and enforcement procedure. Applicability A. Unless exempt under Subsection C, this Subchapter shall apply to: 1. Undeveloped land. 2. All property to be redeveloped including additions or alterations, but not including interior alterations or exterior alterations that do not change the footprint of the building. 3. Gas Well Development including but not limited to gas well transmission lines. 4. Right of way, streets, parks, and other public property under the jurisdiction of the City of Denton. To the extent there is a conflict between this Subsection and any other Subsection including but not limited to Subsection 35.17.9 (Upland Habitat Development Standards) the more stringent requirement shall apply that preserves the largest quantity of trees applies. To the extent there is a conflict between this Subsection and Subsection 35.22.5.A.8.c (Gas Well Drilling and Production), the gas well regulations, which requires 1:1 mitigation, shall apply. Exemptions: 1. Developments that have a completed application on file for a final or preliminary plat for a single-family development or a building permit, whichever is applicable, as of the effective date of this ordinance. 2. ~xv;o~; .....;~,m .... ~ .........~ ~,~,, ~ .... m~ ..... Any development for which construction has begun on infrastructure improvements pursuant to an approved three-way construction contract, including roads, as of the effective date of this ordinance. In the event that construction of all infrastructure improvements in such a development ceases for a continuous period of 180 days or longer, this DRAFT TREE PRESERVATION ORDINANCE Page 1 of 1_~8 September, 2004 DRAFT TREE PRESERVATION ORDINANCE exemption shall cease to apply on the 181 st day after cessation of construction unless the City accepts the infrastructure improvements. 3. P-tatt-ed---pProperty on which a single-family or two-family residential dwelling unit(s) exists. 4. Trees located in the visibility triangle area, as defined in the Transportation Criteria Manual. 5. Public utility projects associated with a master plan, conducted by a public utility or a municipal owned utility. 6. Public Utilities have the right to trim, cut, and/or remove any and all trees that: a. Interfere with or encroach upon the operations of' .... existing public utilities; or b. Create a safety issue for utility crews; or c. Create a safety issue for the public. 7. City Landfill and Airport. 8. Nursery trees that are planted and growing on the premises of a Wholesale Nursery that are intended for sale in the ordinary course of business. 9. Any tree determined to be diseased, dying or dead, by a qualified professional or creating a public nuisance or damaging a foundation. la. Any tree determined to be causing a danger or be in hazardous condition as a result of a natural event such as tornado, storm, flood or other act of God that endangers the public health, welfare or safety and requires immediate removal. 11. Clearing of understory necessary to perform soil borings, boundary surveying of real property or to conduct tree surveys or inventories As long as the clearing for surveying shall not exceed a width of two (2) feet for general survey (i.e. of easement boundary, etc.) and eight (8) feet for survey of property boundary lines and any tree having a ten (la) inch dbh or greater shall not be removed under this exemption during such boundary or general surveying. 12. Capital Improvement Projects awarded prior to the effective date of this Subsection. 13. Property zoned Rural Residential (RD-5) or Rural Commercial (RC) Permit required A. No person, directly, or indirectly, shall cut down, destroy, remove or move, or intentionally destroy or damage any Quality Tree, Protected Tree, or Historic Tree without first obtaining a tree removal permit and complying with the requirements of this Subsection. B. No grading shall take place on any undeveloped property that contains trees subject to this Subsection without obtaining a tree removal permit. C. No heavy equipment shall be moved onto a site prior to all applicable permits being issued. DRAFT TREE PRESERVATION ORDINANCE Page 2 of 1_~_8~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE D. Trees greater than 3 "dbh and not identified as a Quality Tree, Protected Tree, or Historic Tree within this Subsection may be removed with a permit. E. Trees less than 3" dbh and not identified as a Historic Tree may be removed without a permit. Permit Review and Approval Process A. The Director shall adopt rules establishing the requirements for the permitting and approval process in the Application Criteria Manual. The rules shall include information required by the Director to determine if the application is complete. B. A request for tree removal permit shall be submitted and approved prior to the removal of any Quality Tree, Protected Tree, or Historic Tree in the City. C. A complete application shall be submitted along with the application fee, if required. The fees shall be established by City Council and published in the Application Criteria manual. D. A Tree Inventory Plan and a Tree Replacement/Mitigation Plan, if required, must be submitted with the tree removal permit application. E. Permits for tree removal issued in connection with a building permit or clearing and grading permit shall be valid for the same period of time. Tree removal permits issued not in connection with a building permit or clearing and grading permit are valid for 180 days. F. After the tree removal permit is issued, the permit holder shall post a tree protection sign, supplied by the City, at each entrance to the property and at any other location designated by the City. G. Upon the request of the applicant, the Planning Director shall be authorized to work with the owners, developers, and builders to make non-substantive changes, within the scope of the ordinance, to plans, permits, and other requirements throughout the development and construction processes that will provide the greatest reasonable tree survival. The decision of the Planning Director may be appealed by the applicant to the Planning and Zoning Commission under Subsection 35.3.5. H. The applicant may file an application for relief from the Tree Preservation/Mitigation requirements in this Subsection pursuant to Subsection 35.3.11 on grounds therein specified to the City Council within ten (10) calendar days of the posting of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.3.11. DRAFT TREE PRESERVATION ORDINANCE Page 3 of 1_~_8~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Designations A. Protected Trees Any healthy tree with an eighteen (18) inch or greater dbh and not in a Quality Tree Stand or a Mesquite, Bols Arc, Locust Hackberry and/or Cottonwood species. All trees greater than eighteen (18) inches dbh shall be considered a Protected Tree unless a detailed tree inventory is submitted verifying the presence of Mesquite, Bois Arc, Locust Hackberry and/or Cottonwood species. Historic Trees 1. A Historic Tree is a healthy tree that stands at a place where an event of historic significance occurred that had local, regional, or national importance; or at the home of a citizen who is famous on a local, regional, or national basis. 2. A tree may also be considered historic if it has taken on a legendary stature to the community; mentioned in literature or documents of historic value; or considered unusual due to size, age or has landmark status. DRAFT TREE PRESERVATION ORDINANCE Page 4 of 1_~_8~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 3. The Historic Landmark Commission will make recommendations for Historic Tree designations to the Planning and Zoning Commission (which will conduct a public hearing and include property owner notification) for ultimate approval by the City Council. Upon designation, each tree shall be added to a Historic Tree Registry map to be maintained by the Planning and Development Department. Quality Trees All healthy trees that have a dbh that is greater than six (6) inches, but is less than eighteen (18)inches and not within a Quality Tree Stand. All trees shall be considered Quality Trees unless a detailed tree inventory is submitted identifying ......... -,~Seconda _ry Trees. Quality Tree Stand Three or more contiguous Quality Trees whose canopies are generally clustered together. All Tree Stands shall be considered Quality Tree Stands unless a detailed tree inventory is submitted identifying the tree stand as an UndesirableSecondary Tree Stand. Large Undesirable-Secondary Trees All healthy Mesquite, Bois Arc, Locust Hackberry and/or Cottonwood trees with an eighteen (18) inch or greater dbh.. Ttnd,~;,..,1,~,~.~ ..,.~,~o...~,,,.,~ Secondary Trees All healthy Mesquite, Bois :irc, Locust Hackberry and/or Cottonwood trees that have a dbh that is greater than six (6) inches, but is less than eighteen (18)inches. Un--able-Secondary Tree Stand Three or more contiguous LtadesimbteSeconda _ry Trees whose canopies are generally clustered together. An undesirab!eSecondary tree stand must consist of a minimum eighty (80) percent of undesirabteSecondary tree species. Preservation The following shall apply unless an application for relief is filed and approved under Subsection 35.3.11. A. Any tree designated as a Historic Tree shall be preserved. B. Any tree designated as a Protected Tree or a Large ~Secondary Tree shall be preserved unless mitigated under the requirements of Subsection 7. C. The minimum percentages of all dbh or percentage tree canopy of Quality Trees and Quality Tree Stands that must be preserved or mitigated are shown on Table 1. DRAFT TREE PRESERVATION ORDINANCE Page 5 of 1_~_8~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Table 1 Single-family & Multi-family and Mitigation Duplex Dwellings Non-Residential Uses Up to 50% of the percentage 20% within the 25% within the required to be preserved may Quality Trees and entire entire be mitigated under the Quality Tree Stands development, development, requirements of this Subsection. Up~esimb!eSecond Up to 100% of the percentage 10% within the 12.5% within the required to be preserved may ary Trees and entire entire be mitigated under the UndesimbteSecond ary Tree Stands development, development, requirements of this Subsection. All percentages relating to preservation stated within this section shall be based on the initial tree inventory plan. Any subsequent redevelopment of property must minimally preserve the applicable percentage of the total dbh of quality trees as indicated by the initial tree survey. A notation shall be placed on the Site Plan or Final Plat identifying each Quality Tree, Quality Tree Stand, Protected Tree and/or Historic Tree required to be preserved under this Subsection. The notation shall limit any future land disturbing activity or construction that would impact and/or damage the tree(s) to be preserved or protected and shall run with the land and be binding upon all successors and assigns of the current owner. Mitigation If preservation cannot be reasonably achieved, then the following mitigation standards shall apply. A. Protected Trees may be removed if mitigated at a ratio of 1:2 (every 1" removed requires 2" towards mitigation required under this Subsection). B. Large LT-ndesivabteSecondary Trees may be removed if mitigated at a ration of 1:1. C. Quality Trees and Up~es/rableSecondary Trees may be removed in excess of the minimum preservation requirement contained in Table 1 provided the excess removal is mitigated as identified in Table 2 DRAFT TREE PRESERVATION ORDINANCE Page 6 of 1_~_8~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Table 2, Mitigation (^) (B) (c) Method Description Restrictions 1. Establishment and The cumulative total of all Trees that are required to maintenance of new trees Quality Trees removed in be planted in compliance on site at the required ratio excess of the minimum with other development in Column B. preservation requirement regulations (parking lot contained in Table 1 shall canopy, buffers, street be mitigated at a ratio of trees) shall not be counted 1:1.5 (every 1" removed for the purpose of requires 1.5" towards satisfying mitigation mitigation), requirements. Only tree species The cumulative total of all identified on the Tree · T,,~o;~,~q .... ,~,~ Mitigation Replacement Table, located in the Site Trees removed in excess of the minimum Design Criteria Manual, shall be planted for preservation requirement contained in Table 1 shall mitigation purposes. be mitigated at a ratio of If more than ten trees will 1:0.75 (every 1" removed be planted for mitigation, requires 0.75" towards a minimum of four mitigation), species, from the Tree Mitigation Replacement Table shall be planted. In such case no one specie may total more than 50% of the total number of trees planted. 2. Preservation of existing See Subsection 7.F. See Subsection 7.F. trees off-site within a Tree Bank. See Subsection 7.F. DRAFT TREE PRESERVATION ORDINANCE Page 7 of 1_~_848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 3. Plant new trees on The cumulative total of all Off-site plantings shall Public Property at the Quality Trees removed in also include maintenance required ratio identified in excess of the minimum and irrigation for a period Column B. See preservation requirement of not less than three (3) Subsection 9. contained in Table 1 shall years. Security for the be mitigated at a ratio of cost of maintenance shall 1:1.5 (every 1" removed be in the form of a cash requires 1.5" towards bond, surety bond, or mitigation), letter of credit. The cumulative total of all U~sirableS econda _ry Trees removed in excess of the minimum preservation requirement contained in Table 1 shall be mitigated at a ratio of 1:0.75 (every 1" removed requires 0.75" towards mitigation). 4. Payment to the tree See subsection E of this See subsection E of this mitigation fund. See Section. Section. Subsection E of this Section. 5. Any combination of Method 1, 2, 3 and 4. C. Each replacement tree shall be a minimum of 2" caliper measured 6" above grade and at least 5' in height when planted. D. Upon completion of the three-year landscape establishment period, for replacement trees, the City shall inspect the trees and determine whether ninety percent (90%) of the trees are healthy and have a reasonable chance of surviving to maturity. Upon such a finding, the City shall release the currency, bond or letter of credit. In the absence of such a finding, the Applicant shall be notified to replace any unhealthy or dead trees. If the applicant does not take remedial steps to bring the property into compliance, the City shall make demand for payment on the cash bond, surety bond, or letter of credit. The City may use all legal remedies to enforce this subchapter in addition to making demand on the security provided herein. E. Tree Fund 1. The City shall administer the Tree Fund. Tree funds shall be used to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a city-wide tree inventory and to educate citizens and developers on the benefits and value of trees. DRAFT TREE PRESERVATION ORDINANCE Page 8 of 1_~_8~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 2. The applicant shall pay the fees established by City Council and published in the Development Review Fee Schedule in the Application Criteria Manual. The fee shall be based on the fair market value of materials and labor at the time of planting and the the reasonable estimated cost for maintenance and irrigation for a period of three (3) years. 3. Fees contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and Grading Permit on all Commercial, Industrial, or Multi-Family Residential buildings, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat application for all Residential and Non-Residential Subdivisions as may be applicable. 4. Voluntary contributions for tree preservation shall be placed in the Tree Fund. F. Tree Banks 1. Areas of a minimum of one acre that have the characteristics of Cross Timber Forests are eligible to be classified as a Tree Bank. 2. Designation of a Tree Bank and transfer of tree credits shall be approved by the DRC Chairman. 3. Tree Banks shall be preserved with a permanent easement that shall limit any future land disturbing activity or construction that would impact and/or damage the tree(s) and shall run with the land and be binding upon all successors and assigns of the current owner. Methods for the long-term conservation of said trees may include permanent conservation easements, restrictive covenants, or other such legal mechanisms. 4. Only portions of a Tree Bank not designated towards tree credit may be used for mitigation as identified in this Subsection. 5. Trees that are required to be preserved in compliance with other development regulations shall not be credited towards the Tree Bank. G. Areas that are un-developable, including but not limited to floodplain, wetlands and riparian areas, shall not be designated as Tree Banks. DRAFT TREE PRESERVATION ORDINANCE Page 9 of 1_~_848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 8. Small Lot / Infill Exclusion The following table identifies the required preservation and mitigation requirements for small lots and infill lots. Small Lot Infill Exclusions Table Size Preservation & Mitigation Requirement Less than ½ acre None Protected Trees mitigated at a 1:0.5 ratio. ½ acre to 1 acre Large Undes;.rab!eSecondary Trees mitigated at a 1:0.25 ratio Protected Trees mitigated at a 1:1 ratio. 1 acre to 2.5 acres Large U~desi~abteSeconda~ Trees mitigated at a 1:0.5 ratio Infill Protected Trees mitigated at a 1:1.5 ratio. Lots Large U~desimbleSecondary Trees mitigated at a 1:0.75 ratio Quality Tree requirements reduced by 50% (10% sf & 12.5%), may 2.5 acres to 5 acres mitigate an additional 50% at a 1:1 ratio. Undes;.rab!eSecondar¥ Tree requirements reduced by 50% (5% sf & 6.25%), may mitigate an additional 50% at a 1:0.5 ratio. Protected Trees mitigated at a 1:0.5 ratio. Less than ½ acre Large Undes;.rab!eSecondary Trees mitigated at a 1:0.25 ratio Protected Trees mitigated at a 1:0.75 ratio. ½ acre to 1 acre Non- Large td~desimbteSeconda~ Trees mitigated at a 1:0.325 ratio Infill Protected Trees mitigated at a 1:1.25 ratio. Lots Large Undesi~aMeSecondarv Trees mitigated at a 1:0.625 ratio Quality Tree requirements reduced by 50% (10% sf & 12.5%), may 1 acre to 2.5 acres mitigate an additional 50% at a 1:1 ratio. Un~es;.ra~!eSecondar¥ Tree requirements reduced by 50% (5% sf & 6.25%), may mitigate an additional 50% at a 1:0.5 ratio. Alternative Tree Preservation Plan An applicant may propose an Alternative Tree Preservation Plan which meets or exceeds the goals and objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Tree Preservation Plan provides the option to address the criteria through a flexible discretiona _ry process reviewed by the Planning and Zoning Commission utilizing the Planning and Zoning Commission Procedure process outlined in Subchapter 3. A. Criteria for Approval. The goals and objectives which must be met, and by which the proposal will be judged are: 1. The proposed Alternative Tree Preservation Plan adequately achieves, or is an improvement on, the intent of the requirements of this Subsection.. 2. Assure quali _ty development that fits in with the character of Denton. DRAFT TREE PRESERVATION ORDINANCE Page 10 of 1848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 10. Preservation Incentives A. Tree Credits 1. All Quality Trees and Quality Tree Stands that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements as identified in Table 3. 2. All Quality Tree Stands with existing understory that are preserved beyond the minimum requirements identified in Table 1 shall be credited towards landscape canopy requirements at a ratio of 1:2. 3. Unless trees preserved are an integral part of the parking lot design, they will not be credited towards parking lot canopy requirements. 4. Unless trees preserved are an integral part of a required buffer design, they will not be credited towards buffer requirements Table 3 Credit Received towards landscape canopy requirements for Preservation Beyond Minimum Requirements Identified in Table 1 Tree Classification Credit Ratio Quality Tree 1:1.3 Quality Tree - Oak Species 1:1.5 Quality Tree Stands without understory 1:1.55 Quality Tree Stands consisting of a minimum 90% Oak Species 1:1.75 Quality Tree Stands with understory 1:1.8 Quality Tree Stands consisting of a minimum 90% Oak Species 1:2 with understory B. Parking Spaces For every twelve (12) dbh of Quality Tree(s) that have been protected on site, beyond the minimum requirements identified in Table 1, one (1) parking space may be added to or subtracted from the required number of parking spaces up to a fifteen (15) percent increase or decrease. Upon the approval of the Director of Planning and Development, a waiver of up to thirty (30) percent may be granted. C. Parking Lot Design The Director of Planning and Development may allow parking lot design and parking lot landscaping requirements to vary from adopted standards to preserve existing trees. D. Subdivision Design The following incentives may be approved by the DRC Chairman and must be commensurate with the quality and character of the trees to be preserved: DRAFT TREE PRESERVATION ORDINANCE Page 11 of 1848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 1. Block Length may be increased up to twenty five (25) percent. 2. Cul De Sac Length may be increased up to twenty five (25) percent. 3. Alternative sidewalk locations. 4. Offset street location within a right-of-way. Other Incentives The employment of the following incentives must be approved by City Council and must be commensurate with the quality and character of the Trees to be placed within a conservation easement or otherwise conserved and the extent to which the preserved land contributes to the preservation of the remnants of the Cross Timber Forest. Incentives may include but are not limited to: 1. Fee waivers or credits, 2. Reduced open space/park land dedication requirements, 3. Reduction of monetary assessments relative to agricultural rollback taxes, 4. Tax abatements, 5. Tax Increment Financing, 6. Chapter 380 grant of money, 7. Transfer of Development Rights, and/or 8. Purchase of Development Rights - purchase by Government or Trust. 11. Enforcement A. The City Arborist, Building Official or an authorized representative of the City shall have the authority to place a Stop Work Order on any activity involving the removal of Protected Tree(s), Historic Tree(s) Quality Tree(s) or Quality Tree Stand(s) or that may otherwise endanger trees contrary to the provisions of this Subsection and applicable Criteria Manuals. The Building Official may deny all Permits and Certificates of Occupancy for any site which is not in compliance with this Subsection and applicable Criteria Manuals. B. Each tree removed in violation of this Subsection shall constitute a distinct and separate offense. C. Each tree preserved or planted under this Subsection that is removed, destroyed or dies within three (3) years of approval shall constitute a distinct and separate offense. D. It shall be a defense that trees are injured or destroyed by natural causes, natural disasters, including but not limited to tornadoes, straight-line winds, ice storms, fire, floods, hail, or lightning strikes, or through the independent unauthorized actions of third parties. E. The enforcement and penalty provisions of Subsection 35.1.10.4 shall apply to this Subsection. DRAFT TREE PRESERVATION ORDINANCE Page 12 of 1848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Plan Submissions (To be located in the Application Criteria Manual) A. Tree Inventory Plan. A tree inventory plan shall delineate site boundaries and site trees by type, size (dbh) and/or canopy and species. An inventory map shall be prepared by a registered landscape architect, urban forester, botanist, arborist or other qualified professional and be submitted with a preliminary plat and/or building permit application. B. Tree Preservation/Replacement Plan. A tree preservation plan shall be submitted before the approval of a final plat and/or building permit and shall contain sufficient detail to show the following: 1. The location of existing and proposed improvements; 2. The limits of clearing and grading; 3. The location, size and health of all existing trees to remain, including tree credit calculations (canopy coverage) and methods proposed to comply with tree protection requirements during construction; 4. The location of any and all permanent conservation easements, restrictive covenants, or other such legal mechanism to allow for the long-term conservation of any and all trees required to be preserved. 5. The location, size and health of all existing trees proposed to be removed, including calculations (total dbh removed in excess of minimum requirements) to determine the replacement requirements; 6. Identification of all trees eligible for preservation; 7. The location and dimensions of boundary lines. 8. If Tree Stand credits are proposed, the type and species of existing understory plants (if any). C. Simplified Survey. 1. An aerial photo of the property showing the tree coverage may be used to identify groups of trees that will be preserved if mitigation is not proposed. 2. Large tree stands (greater than 1,000 square feet), which will be mitigated, may be inventoried by performing a detailed study within a specified 100 foot by 100 foot area. The study area shall be a representative sample of the entire tree stand and must be approved by the City prior to performing the survey. The survey shall include the size, species and health of all existing trees within the area. The results of the survey will be applied to the total area of the tree stand to determine the total dbh within the tree stand. 3. If no Protected Trees, Historic Trees, Quality Trees or Quality Tree Stands exist on the property, a letter stating what does exist on the property may be submitted in lieu of a survey. D. The Tree Inventory Plan and the Tree Preservation Plan may be combined on one document. DRAFT TREE PRESERVATION ORDINANCE Page 13 of 18~8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Protection (To be included in the Site Criteria Manual) Construction Plans shall include necessary notes and details to ensure the viability of Protected Tress, Historic Trees, Quality Trees and/or Quality Tree Stands (Trees) including their roots, during construction. A. All trees identified on the tree preservation plan required to be preserved shall be protected during construction. All tree protection measures shall be in place and approved prior to the commencement of any on-site construction. Protection measures such as fencing shall be maintained at all times during construction. B. The developer shall not establish and maintain a construction entrance that is within the critical root zone of any Tree unless the root zone is adequately protected. C. Material intended for the use in construction or waste materials accumulated due to excavations or demolition shall not be placed within the limits of the critical root zone. D. Equipment shall not be cleaned or other foreign materials deposited or allowed to flow overland within the critical root zone of a protected tree. This includes without limitation, paint, oil, solvents, asphalt, concrete, mortar or similar materials. E. Signs, wires or other objects, other than those of a protective nature shall not be attached to any Tree. However, lighting of a decorative nature may be attached to a Tree. The lighting shall be attached in a manner as not to damage the protected tree. F. Vehicular and or construction traffic or parking shall not take place within the limits of the critical root zone of any Tree other than on an existing paved surface. This restriction does not apply to access within the critical root zone for the purpose of clearing underbrush, which shall only be done by hand methods, vehicular traffic necessary for routine utility maintenance or emergency restoration of utility services or routine mowing operations. G. Grade changes shall be allowed within the limits of the critical root zone of any Tree only upon approval by the city. If approved, major grade changes (i.e. four inches [4"] or greater) within the critical root zone of a Tree will require additional measures to maintain proper oxygen and water exchange with the roots. Root pruning will be required when disturbance will result in root exposure. Root pruning shall be completed a minimum of two (2) weeks prior to any construction activity within the critical root zone of the protected tree. H. No paving with asphalt, concrete or other impervious materials shall occur within the critical root zone of a Tree. I. In those areas where a Tree is within 50 feet of a construction area, a protective fence, minimum of four feet (4') in height, shall be erected and maintained outside the critical root zone of each Tree. The protective fencing shall only be required on the subject site, if the critical root zone extends onto an adjacent property. J. Boring of utilities under Trees shall be required in those circumstances where it is not possible to trench around the critical root zone of a Tree. When required, the length DRAFT TREE PRESERVATION ORDINANCE Page 14 of 18t8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Ko Lo of the bore shall be the width of the critical root zone plus two feet (2') on either side of the critical root zone and shall be at a minimum depth of 48 inches. Any physical damage to a Tree preserved for credit that is considered to place the survival of the Tree in doubt shall be eliminated as a credited tree and will require additional trees to be planted in its place at the required ratio. Where Tree removal is allowed through an exemption or by a tree removal permit and the root system is intertwined with the protected trees that are intended to be saved, the tree shall be removed by flush cutting with the natural level of the surrounding ground. Where stump removal is also desired, the stump grinding shall be allowed, or upon approval of the City, a trench may be cut between the two trees sufficient to cut the roots near the tree to be removed, thereby allowing removal of the remaining stump without the destruction of the root system of the saved tree. Tree Planting Restrictions (To be included in the Site Criteria Manual) A. Overhead Lines: Any required replacement tree(s) shall not be planted within an area (both vertically and horizontally) such that the mature canopy will be within ten feet (10') of any overhead utility lines. B. Underground Utilities: Any required replacement trees or street trees shall not be planted within 5' of underground public utility lines, including water lines, sewer lines, transmission lines, or other utilities. No trees may be planted within 10' of a fire hydrant. C. Street Comers: No tree shall be planted in the visibility triangle area, as defined in the Transportation Criteria Manual. The Tree Mitigation Replacement Table will be incorporated into the Site Criteria Manual Olgx!ginal Table replaced with J. Cooper's Table) Pecan DRAFT TREE PRESERVATION ORDINANCE Page 15 of 1848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Mitigation Replacement Table Mature Mature Common Name Botanical Name Height Spread Pecan Carya illinoensis 70' 70' White ash Fraxinus americana 70' 60' Shumard red oak Quercus shumardii 70' 50' American elm Ulmus americana 70' 70' Bur oak Quercus macrocarpa 60' 60' Bald cypress Taxodium distichum 60' 30' Cedar elm Ulmus crass~folia 60' 40' American sweetgum Liqttidambar sTracifltta 50' 30' Live oak Qttercttsfttsiformis or Q. 50' 50' virginiana Chinkapin oak Qtterctts mttehlenbergii 50' 40' Common persimmon Diospvros virginiana 40' 30' Texas ash Fraximts texensis 40' 30' Afghan Pine Pimts eldarica 40' 30' Chinese pistache Pistacia chinensis 40' 40' Lacebark elm Ulmus parv~folia 40' 40' Win~ed elm Ulmtts alata 30' 30' Eastern redbud Cercis canadensis 25' 25' Yaupon holly Illex vomitoria 20' 15' Crape myrtle Lagerstroemia indica 20' 15' Mexican plum Prunus mexicana 20' 20__] Eve's necklace Sophora qffinis 20' 15' Definitions (To be included in Subchapter 23 of the Code) Clear Cutting: The removal of all of the trees or a significant majority of the trees within an area. Critical Root Zone (CRZ): The area of undisturbed natural soil around a tree defined by a concentric circle with a radius equal to the distance from the trunk to the outermost portion of the drip line but not less than one foot radius for each one inch dbh. dbh: Diameter at breast height (dbh) is the tree trunk diameter measured in inches at a height of four and one-half (4 ½) feet above existing ground level. DRAFT TREE PRESERVATION ORDINANCE Page 16 of 18t8 July, 2004 DRAFT TREE PRESERVATION ORDINANCE For single-trunk trees, the width shall be measured at four and one-half feet (4 ½ ') above ground level. For multi-trunk trees, combine the diameter of largest stem or trunk with one-half of the diameter of each additional stem or trunk, all measured at four and one-half feet (4 ½ ') above ground level. Drip Line: A vertical line run through the outermost portion of the canopy of a tree and extended to the ground. Healthy Tree: A healthy tree is a tree that is vigorously growing and is free of structural problems such as hollows or voids, free of disease, or insect problems and has a root system that is large enough to support its above ground mass. Limits of Construction: Delineation on a graphic exhibit, which shows the boundary of the area within which all construction activity will occur. Public Utilities: For the purposes of tree preservation provisions of the Denton Development Code, the term, Public Utilities includes public sanitary sewers, public water mains, public streets, public storm sewers, public detention ponds municipally- owned electric utilities, electric cooperatives, investor- owned electric utilities, telephone companies, cable television companies, and other utilities defined under Texas law as "public utilities," as well as any contractor hired by these utilities. Protective Fencing: Temporary chain link fence, wire fence, orange vinyl construction fence, snow fencing or other similar fencing with a minimum four-foot (4') height. Qualified Professional: A qualified professional is a person with a minimum of a Bachelor of Science Degree in any of the following disciplines: Forestry, Horticulture, Botany and/or Plant / Soil Science or, an Arborist that has been certified by the International Society for Arboriculture, a Texas Certified Nursery Professional, a Texas Master Certified Nursery Professional certified by the Texas Nursery and Landscape Association or a Licensed Landscape Architect. Removal: Removal means an act that causes or may be reasonably expected to cause a tree to die including uprooting, severing the main trunk, damaging the root system and excessive pruning. Root Pruning: Shall mean to cut away, remove, cut off or cut back all or parts of the root. All root pruning shall be in accordance with approved methods set forth in the National Arborist Association Standards. Tree Protection Sign: A sign furnished by the City upon approval of a tree survey or tree permit that describes prohibited conduct detrimental to trees. Understory: A grouping of native, noninvasive low-level woody, herbaceous, or ground covers species with stems less than 1 inch dbh. 35.3.11 Tree Preservation Relief Provisions (This section will be added to Sttbchapter 3 (Procedures) of the Development Code. DRAFT TREE PRESERVATION ORDINANCE Page 17 of 1848 July, 2004 DRAFT TREE PRESERVATION ORDINANCE mo Bo Co Do mo The purpose of this provision allows a determination of whether the application of the Demon Developmem Code as applied to a Tree Removal Application and related developmem applications, would if not modified or other relief grained, may unreasonably burden the developmem of the property. A property owner or his authorized agem may file an application for relief under this Subsection following a final decision to deny or conditionally gram an application for a Tree Removal Permit. The Director has the authority to establish requiremems for Applications for Tree Preservation Relief in the Application Criteria Manual. No application shall be accepted for filing umil it is complete and the fee established by the City Council has been paid. Upon approval of an application for relief in whole or in part by the City Council, the Director shall process the Tree Removal Permit and related development applications pursuam to the relief grained on the application for relief approved by the City Council. A denial of an application for relief by the City Council is a final determination. Criteria for Approval. In deciding whether to gram relief to the applicam, the City Council shall consider whether there is any evidence from which it can reasonably conclude that the application of all or a part of the provisions of the Denton Development Code that apply to tree preservation may deprive the applicant of all economically viable use of the property, based on the following factors: 1. Whether there is a unique physical circumstance on the property. 2. Whether the proposed design has minimized the loss of trees to the extent possible. 3. Whether preservation and/or mitigation unduly burdens the development of the property. (This will be added to Subsection 35.3.5) An Alternative Tree Preservation Plan may be approved by the Planning and Zoning Commission, which proposes an alternative to strict compliance with the provisions of this Subsection if the Planning and Zoning Commission finds that such plan adequately achieves, or is an improvement on, the intent of the requirements of this Subsection. DRAFT TREE PRESERVATION ORDINANCE Page 18 of 18;8 July, 2004 Attachment 3 Section City of Denton Site Design Criteria Manual Section 2 - Tree Preservation The following are examples of how to apply tree preservation under different scenarios. See Section 35.13.7 of the Development Code for detailed information on Tree Preservation requirements. ESA Onl PRESERVATION REQUIREMENTS: Site Features: · 20 Acres of ESA Upland Habitat on site. By definition, ESA ~j)land Habitat Trees would be classified as a Quality Tree Stand/ · No Historic Trees on site. Preservation Requirements Single-Family Multi-Family Non-Single Family Required to Preserve 50% Required to Preserve 50% (10 acres) of ESA. (10 acres) of ESA. Not subiect to ESA Preservation must be Preservation must be Upland Habitat ESA contiguous to off-site ESA contiguous tooff-site ESA regulations. .......................................................................................... and remain predominantly and remain predominantly in its natural state, in its natural state. Required to Preserve 25% (5 acres) of Quality Trees. Preservation does A minimum of 20% A minimum of 25% not have to be contiguous preserved. Up to 50% of preserved. Up to 50% of to off-site ESA. the percentage required to the percentage required to Allowed to mitigate up to be preserved may be be preserved may be mitigated miti.qated 12.5 acres (50%) of Quality Trees (required to Tree The 50% ESA The 50% ESA be preserved) at a ratio of Preservation requirement is greater requirement is greater 1:1.5 (Mitigation requires than the 25% Tree than the 25% Tree a detailed Tree Survey). Preservation Preservation Mitigation replacement is requirement, therefore requirement, therefore in addition to landscape no additional tree no additional tree requirements, preservation required preservation required Credit towards landscape bevond ESA regulations, bevond ESA regulations, requirements allowed for all Quality Tress preserved beyond the minimum 25% required. Section 2 City of Denton Site Design Criteria Manual ESA & Other Trees PRESERVATION REQUIREMENTS: Site Features: · 20 Acres of ESA Upland Habitat 1 Protected Tree (24" dbh) Qualit~ Trees o 6 trees @ 6" dbh o 4 trees @ 8" dbh o 6 trees @12" dbh o Total 140" dbh Preservation Requirements Single-Family Multi-Family Non-Single Family Required to Preserve 50% Required to Preserve 50% (10 acres) of ESA. (10 acres) of ESA. Not subiect to ESA Preservation must be Preservation must be Upland Habitat ESA conti.quous to off-site ESA conti.quous to off-site ESA re.qulations. .......................................................................................... and remain predominantly and remain predominantly in its natural state, in its natural state. Required to Preserve Required to Preserve Protected Tree or mitigate Protected Tree or mitigate Required to Preserve at a ratio of 1:2. (48") at a ratio of 1:2. (48") Protected Tree or mitigate Required to Preserve 20% Required to Preserve 25% at a ratio of 1:2. (28") of all non-ESA (35") of all non-ESA Required to Preserve Quality Trees in addition to Quality Trees in addition to 25% of all Quality Trees the ESA Upland Habitat the ESA Upland Habitat (includes ESA Upland requirement - could requirement - could Habitat Trees). preserve additional ESA preserve additional ESA Upland Habitat to fulfill Upland Habitat to fulfill Allowed to mitigate up to requirement), requirement). 50% of Quality Trees (required to be preserved) Tree Allowed to mitigate up to Allowed to mitigate up to at a ratio of 1:1.5 Preservation 14" (50%) of Quality Trees 18" (50%) of Quality Trees (Mitigation requires a (required to be preserved) (required to be preserved) detailed Tree Survey). at a ratio of 1:1.5 at a ratio of 1:1.5 Mitigation replacement is (Mitigation requires a (Mitigation requires a in addition to landscape detailed Tree Survey). detailed Tree Survey). requirements. Mitigation replacement is Mitigation replacement is Credit towards landscape in addition to landscape in addition to landscape requirements allowed for requirements, requirements, all Quality Tress Credit towards landscape Credit towards landscape preserved beyond the requirements allowed for requirements allowed for minimum 25%. all Quality Tress preserved all Quality Tress preserved beyond the minimum 20%. beyond the minimum 25%. Section City of Denton Site Design Criteria Manual Non-ESA Trees PRESERVATION REQUIREMENTS: Site Features: 5 Acres of Quality Tree Stand o 100' x 100' Sample Area identifies 72 trees and a total dbh of 722". o The 5 acre stand would then e ual 15 682 trees with a total dbh of 157,251" 1 Protected Tree (24" dbh) outside the limits of the Quality Tree Stand Quality_ Trees o 6 trees @ 6" dbh o 4 trees ¢_, 8" dbh o 6 trees @12" dbh o Total 140" dbh 15 699 total Qualit Trees ~.a total dbh of 157,391". Preservation Non-Sin.qle Familv Requirements Sin.qle-Familv (Includes Multi-family) ESA Not Applicable Not Applicable Required to Preserve Protected Tree or miti.qate Required to Preserve Protected Tree or at a ratio of 1:2. (48") miti.qate at a ratio of 1:2. (48") Required to Preserve 20% of all Quality Trees Required to Preserve 25% of all Quality Trees (equals 31,478" of existing Quality Trees). (equals 39,348" of existing Quality Trees) Allowed to miti.qate up to 15,739" (50%) of Allowed to miti.qate up to 19,674" (50%) of Quality Trees (required to be preserved) at a Quality Trees (required to be preserved) at a ratio of 1:1.5 (23.609"). Miti.qation requires a ratio of 1:1.5 (29,511"). Miti.qation requires a Tree detailed Tree Survey. Miti.qation replacement is detailed Tree Survey. Miti.qation replacement in addition to landscape requirements, is in addition to landscape requirements. Preservation If the entire 50% was miti.qated, a total of If the entire 50% was miti.qated, a total of 23,608" of new trees (approximately 14,756 2" 23,608" of new trees (approximately 14,756 2" trees) would be planted or a fee paid to the tree trees) would be planted or a fee paid to the tree fund), fund). Credit towards landscape requirements allowed Credit towards landscape requirements for all Quality Tress preserved beyond the allowed for all Quality Tress preserved beyond minimum 20% required at a ration of 1:1.5 the minimum 25% required at a ration of 1:1.5 (Credit only requires canopy coverage (Credit only requires canopy coverage information - simplified Tree Survey). information - simplified Tree Survey). Section 2 City of Denton Site Design Criteria Manual Tree Mitigation Replacement Table Mature Mature Common Name Botanical Name Height Spread Pecan Ca~a illinoensis 70~' 70~' White ash Fraxinas americana 70~' 60~' Shumard red oak ~aercas shamardii 70~' 50~' American elm U/mas americana 70~' 70~' Bur oak O~aercas macroca~a 60~' 60~' Bald c)~press Taxodiam dis~icham 60~' 30~' Cedar elna U/mas crassifo/ia 60~' 40~' American s~veetgum Liqaidambar sO,ra~£/aa 50~' 30~' Live oak ~aercas?siformis or~. vi(e?iana 50~' 50~' Chinkapin oak ~aercas maehlenbe~ii 50~' 40~' Common persimmon Dio~j,ms vi(giniana 40~' 30~' Texas ash Fraxinas/exensis 40~' 30~' Afghan Pine P/nas e/da~ica 40~' 30~' Chinese pistache Pis/acia chinensis 40~' 40~' Lacebark elna Ulmasparvifo/ia 40~' 40~' Winged elna U/mas a/a~a 30~' 30~' Eastern redbud Cerds canadensis 25~' 25~' Yaupon holly 1~lex vomi~o~ia 20~' 15~' Crape myrtle La?rstroemia indica 20' 15' Mexican plum Pranas mexicana 20__~' 20__~' Eve's necklace Sophora a~ff/nis 20~' 15~' Section City of Denton Site Design Criteria Manual Section 23- Landscaping and Buffering A tree survey and landscape plan xvill be submitted at the early stages of land development. The oxvner, developer, and occupant of the property are jointly responsible for ensuring the installed landscape continues to thrive. The trees and shrubs must be healthy and alive at the time of certificate of occupancy inspection and issuance. The final field inspection is the transition date of the landscape maintenance responsibility from the general contractor to the property oxvner. The irrigation system must be installed prior to or concurrent xvith the plantings. Trees and shrubs under transplant shock xvill not be accepted or approved. All landscaping xvill be maintained in a healthy and vigorous 1Mng condition. Single-family development only have to comply xvith the Street Tree requirements. A. Street Trees All development fronting on public or private streets, excepting alleys, shall be required to plant street trees in accordance xvith the folloxving standards. The Director may approve alternative plans due to special site conditions, xvhich may, for reasons such as safety, affect the ability to meet these regulations. i. Location. Street trees sh~Jl be located betxveen the street and sidexvalk, except in cases xvhere there is a designated planting strip in the right-of-xvay, or the sidexvalk is ~eater than 8 feet xvide and designed to accept trees in tree xvells. 2. Number and Spacing. Street trees shall be planted at the rate of one tree for every 30 feet, or major fraction thereof, of street frontage. Street trees shall be planted at a regular interval along the street frontage, and shall be of the same species xvitNn any specific block. 3. Planting Completion. The required landscaping planting shall be installed prior to the issuance of a final inspection. TNs requirement may be xvaived by the Landscaping Administrator to alloxv flexibility for a preferred planting seasons or xvith a approval of a multi-lot plan. B. Canopy and Landscape percentages Ail development shall meet the percentages of Landscape and Tree Canopy requirements are listed in the table entitled Landscape and Tree Canopy Requirements. The folloxving may count toxvards meeting the Landscape and Tree Canopy requirements: i. Undisturbed vegetative areas. 2. Environmentally Sensitive Areas. 3. Landscaping in the adjacent public right of xvay. 4. Plazas and pedestrian circulation areas if constructed xvith pervious material. 5. A percentage of parkSng areas if constructed xvith brick pavers or pervious pavement systems as approved by the Director of Planning and Development. Section 2 City of Denton Site Design Criteria Manual Landscape and Tree Canopy Requirements RD-5 Rural Residential 75% 25% RC Rural Commercial 65% 350% NR-1 Neighborhood Residential 1 70% 50% NR-2 Neighborhood Residential 2 70% 50% NR-3 Neighborhood Residential 3 55% 50% NR-4 Neighborhood Residential 4 40% 50% NR-6 Neighborhood Residential 6 40% 50% NRMU-12 Neighborhood Residential Mixed Use 12 40% 45% NRMU Neighborhood Residential Mixed Use 20% 40% DR-1 Downtown Residential 40% 45% DR-2 Downtown Residential 25% 25% DC-N Downtown Commercial Neighborhood 20% 25% DC-G Downtown Commercial General 15% 20% CM-G Community Mixed Use General 20% 30% CM-E Community Mixed Use employment 15% 30% RCR-1 Regional Center Residential 1 45% 45% RCR-2 Regional Center Residential 2 25% 30% RCC-N Regional Center Commercial Neighborhood 15% 30% RCC-D Regional Center Commercial Downtown 10% 20% EC-C Employment Centers Commercial 20% 30% EC-I Employment Centers Industrial 15% 30% IC-E Industrial Centers Employment 20% 20% IC-G Industrial Centers General 10% 20% Landscape Areas. Landscape area is the portion of a site xvNch is not defined as "lot cover%e . Section City of Denton Site Design Criteria Manual Tree Canopy. Tree canopy is measured by computing the area that the mature canopy ~vill encompass, based on the Tree List. The mature canopies shall be estimated for existing trees on site. Any tree not on the Tree List shall be estimated by use of standard landscaping references. Calctflation i The canopy for each species ~vas estimated by computing the area the canopy ~vill encompass xvhen trees are mature. ii Due to restricted root space in t~pical urban planting sites, for the purposes of estimating mature tree canopy coverage, no tree xvidth xvill be calculated at a xvidth ~eater than 40'. nl The combination of root space, soil preparation, sufficient irrigation, good drainage, absence of xveed, grass, and groundcover competition, mulcNng the root zone, fertilization, and correct pruning are all critical factors in determiaing the mature coverage of a tree. Plantings. All landscape designers and landscape contractors are strongly encouraged to plan and plant for healthy tree groxvth. All trees must plant out a miaimum 2" caliper measured 6" above grade. These tree lists are a guide and not meant to be exclusive. Any other native or xvell-adapted tree may be used ~vith approval from the Landscape Admirfistrator. Buffering A buffer is required based on the folloxving uses being adjacent: 1. Non-residential Uses adjacent to residential uses or zoaing districts. 2. Multi-family Uses adjacent to single-family residential uses or zoning chstricts. 3. Manufactured Home Parks adjacent to single-fan~ly residential uses or zoning districts. 4. A parkSng lot adjacent to a right-of-xvay, excluding local streets and alleys in accordance xvith Section Any of the folloxving or combination may be used to Design Requirements (for buffers 1-3 above). create a miaimum six foot (6') Ngh screen: i. Fencing a. Wood fence constructed xvith steel posts and a decorative cap xvith the good side facing the residential use or zoning district. b. A miaimum of i 0 foot landscaped area xvith one tree for every 30 linear feet. 2. Vegetative buffer a. The buffer xvidth is a miaimum of 30 foot xvide and, b. Existing and proposed vegetation is a miaimum 50% opaque. 3. Berms a. A maximum of a i on 4 side slope facing the residential use or zoning district xvith a miaimum of an 8' xvide top. b. The minimum quantity of plant material shall be calculated as folloxvs: i i large tree per 30 1/near foot, plus ii 2 sm~Jl trees per 30 I/near foot, plus ii/ i0 shrubs per 30 I/near foot Section 2 City of Denton Site Design Criteria Manual D. Screening. The folloxving ~pes of screening shall be provided: 1. Refuse Container Screen. Refuse containers or disposal areas shall be screened from viexv by placement of a solid xvood fence or masonry xvall as tall as the refuse containers, but no less than 5 feet in height. All refuse materials shall be contained xvitNn the refuse area. 2. Service Corridor Screen. When adjacent to residential uses, commerci~J and industrial service corridors shall be screened. Siting and design of such service areas shall reduce the adverse effects of noise, odor and visual clutter upon adjacent residenti~J uses. 3. Mechanical Equipment Screen. Ail mechanical equipment shall be screened from any public right-of- xvay or adjacent to residential use or zoning district. 4. Outdoor Storage. All outside storage shall comply xvith the folloxving design criteria in conjunction xvith any use xvhen the outdoor storage is accessory to the main use: a. Is screened from any right-of-xvay or adjoining property in accordance xvith the buffeting provisions. b. Is located to the rear or side of the structure. c. Does not contain viexvs of interior storage over the six-foot fence height xvithin the outdoor storage area. In such circumstances, a buffer xvill be required in accordance xvith the buffering provisions. d. The definition of outdoor storage does not include retail planting stock and landscape stone or similar landscape materials, associated xvith a nursery. Hoxvever, storage of soils, load piles of gravel and other landscape installation equipment and similar materials sh~il be required to comply xvith tNs limitation xvhen they are stored outside. Exceptions to Buffering and Screening Requirements. The buffeting and screening requirements may be xvaived by the Director subject to the folloxving provisions: 1. Prescribed fences or xvalls may be xvaived if a building, fence, or xvall of at least equivalent height, opacity, and maintenance exists immechately abutting and on the opposite side of the lot line. 2. Prescribed buffers may be xvaived xvhere the design of the site is in conjunction xvith a master planned development or xvitNn a mixed use district. Parking Lots Ail parking lots, xvNch for purposes of this section, include areas of veNcle maneuvering, parkSng, and loading, shall be landscaped and screened as folloxvs: 1. Landscape Standards. a. A minimum of 7% of the total parking area shall be landscaped. b. A minimum of 15% of the required parking sh~il be covered by tree canopy. c. The tree species shall be an appropriate shade tree and shall be selected from the Tree List. d. The landscaped and end cap areas shall be planted xvith trees, shrubs or groundcover. Landscaped areas should be evenly distributed throughout the parking area and parkSng perimeter. Section City of Denton Site Design Criteria Manual 2. Screening at Right of Way. Any combination of the folloxving may be used: a. A 3 foot high xvall made of any combination of wrought iron, masonry, stone or decorative concrete panels. b. A minimum 10 foot wide landscape area planted with one large tree for ever7 40 linear feet. Tree Planting Restrictions 1. Overhead Lines: Any required replacement tree(s) shall not be planted within an area .Oooth vertically and horizontally) such that the mature canopy will be within ten feet (10') of any overhead utility lines. 2. Under~ound Utilities: Any required replacement trees or street trees shall not be planted within 5' of underground public utiliD~ lines, including water lines, sewer lines, transmission lines, or other utilities. No trees may be planted within 10' of a fire hydrant. 3. Street Corners: No tree shall be planted in the visibility triangle area, as defined in the Transportation Criteria Manual Section 2 City of Denton Site Design Criteria Manual Section City of Denton Site Design Criteria Manual Section 34- Landscape Plan A. Irrigation. All properties shall install automatic irrigation systems. The Director may waive the irrigation system requirement if a landscaping plan is approved that includes drought tolerant plants or a xeriscape design. B. Artificial Lot Line. An artificial lot is intended to provide admirfistrative relief for large sites that will achieve planting areas that exceed substantially more than 20% of gross platted lot area after development is completed. The use of artificial lots are limited by the following: If the platted property is over two acres in size, the applicant may request permission to create an "artificial lot" to satisfy the requirements of this Subchapter. i. The Director of Planaing and Development shall approve the creation of an artificial lot only if the spirit and intent of th/s chapter will not be violated. If approved by the Director, artificial lot lines shall be indicated on the proposed Landscape Plan and shall contain, at miaimum, the total anaount of impervious surface coverage, plus 20% of the area inside the artificial lot reserved for required planting area. 2. The area with/n the artificial lot lines shall provide trees and landscaping in compliance with the requirements of th/s section, and may not extend beyond the property boundaries of a single platted lot. 3. The area outside the artificial lot shall be maint~Sned as planting area with live vegetation determined by the applicant. No trees located outside the artificial lot lines may be used for tree credits. 4. The artificial lot lines shall include areas that are adiacent to a public right-of-way or are necessary to accomplish buffering of adiacent properties. C. Landscape Plan Checklist The folloxving items must be included for an application to be considered to be complete: i. Project name 2. Vicinity map 3. Scale 4. Date 5. North Arroxv 6. Street names and locations of all existing and proposed streets 7. Lot layout ~vith dimensions for all lot lines 8. Zorfing designations of the proposed development 9. Zorfing designations adjacent to the proposed development 10. Location and use of all proposed and existing buildings 11. Indicate buildings to remain and buildings to be removed 12. Label public easements, ROW, and sidexvalks 13. Label underground and overhead utility lines 14. Location of all parking areas and parking spaces 15. Indicate existing trees to remain, including their species and size 16. Details of nexv plantings to shoxv location, species, and size Section 3 City of Denton Site Design Criteria Manual 17. A xvritten summary to shoxv: a. Total gross lot area in the development in square feet b. The area and percentage of the lot covered by structures and impervious surfaces c. The area and percentage of the lot covered by existing tree canopy d. The area and percentage of the lot covered by new tree canopy e. The total area and percentage of all landscaped open space areas f. The total area and percentage of all parking and driveway areas g. Irrigation notes to show intent to comply with code requirements 18.If any e~sfing trees are to be used for credit the apphcafion also shall include: a. Tree Sun~ey b. Tree Protection Plan D. Tree Su~ey Chec~ist See Tree Sun, ev. Chec~st in the Apphcafion Criteria Manual for submission requirements. . 2, Sc-a~ E. Tree Protection Plan Chec~st Construction Plans sha~ include necessa~- notes and details to ensure the viab~iD- of a~ trees req~red to be preset, ed including their roots, during construction. The folloxving items must be included for a Tree Protecfion/Prese~,ation Plan to be considered ~o--~-complete: i. Tree flagging: ~1 e~sfing trees chosen by the properU- oxvner to be presen, ed for credit xvi~ be flagged by the site supe~qsor xvith brightly colored tape xvrapped around the main trunk at appro~mately 4.5 ft. above ~ade. 2. Protective fencing: ~1 preset,ed trees for credit to remain on site xv~l have protective fencing located appro~mately at the tree's driphne. The fencing xvill be brightly colored construction fencing xvith a 4- foot n~nimum height. Section City of Denton Site Design Criteria Manual 3. Posting tree protection sign: After the protective fencing is in place, the property oxvner xvill post a tree protection sign at each entrance to the property. The sign xvill be in English and Spanish. The signs are supplied by the City of Denton. 4. Cut/Fill: No chsturbance of the soil greater than 4" shall be located closer to the tree trunk than half the distance of the drip line to the tree trunk. A minimum of 75% of the drip line and root zone shall be preserved at natural ~ade. 5. The design and trencNng for irrigation systems should not cross the critical root zones of the existing trees. The irrigation trenches should be located outside of the critical root zone and designed to throxv xvater into the area xvithin the drip line of the tree. Any trencNng that must be done xvitNn the critical root zone should be dug by hand and enter the area in a radial manner, such as a bicycle spoke configuration. 6. All trees identified on the tree preservation plan required to be preserved shall be protected during construction. All tree protection measures shall be in place and approved prior to the commencement of any on-site construction. Protection measures such as fencing shall be maintained at all times during construction. 7. The developer sh~Jl not establish and maintain a construction entrance that is xvitNn the critical root zone of any Tree unless the root zone is adequately protected. 8. Materi~J intended for the use in construction or xvaste materials accumulated due to excavations or demolition shall not be placed xvitbSn the limits of the critical root zone. Equipment shall not be cleaned or other foreign materials deposited or alloxved to floxv overland xvitNn the critical root zone of a protected tree. TNs includes xvithout limitation, paint, oil, solvents, asphalt, concrete, mortar or similar materials. i0. Signs, xvires or other objects, other than those of a protective nature shall not be attached to any Tree. Hoxvever, lighting of a decorative nature may be attached to a Tree. The lighting shall be attached in a manner as not to damage the protected tree. i i. VeNcular and or construction traffic or parking shall not take place xvithin the limits of the critical root zone of any Tree other than on an existing paved surface. TNs restriction does not apply to access xvitNn the critical root zone for the purpose of clearing underbrush, xvNch shall only be done by hand methods, veNcular traffic necessauT for routine utiliD~ maintenance or emergency restoration of utility services or routine moxving operations. i2. Grade changes shall be ~21oxved xvitNn the limits of the critical root zone of any Tree only upon approval by the cid~. If approved, major grade changes (.i.e. four inches [4"] or ~eater) xvithin the critical root zone of a Tree xvill require addition~2 measures to maintain proper oxygen and xvater exchange xvith the roots. Root pruning xvill be required xvhen disturbance xvill result in root exposure. Root pruning shall be completed a minimum of txvo (2) xveeks prior to any construction activity xvithin the critical root zone of the protected tree. i3. No paving xvith asphalt, concrete or other impervious materials shall occur xvithin the critical root i4. i5. zone of a Tree. In those areas xvhere a Tree is xvitNn 50 feet of a construction area, a protective fence, minimum of four feet (.4') in height, shall be erected and maintained outside the critical root zone of each Tree The protective fencing shall only be required on the subject site, if the critical root zone extends onto an adjacent proper~~. Boring of utilities under Trees shall be required in those circumstances xvhere it is not possible to trench around the critical root zone of a Tree. When required, the length of the bore shall be the width of the critical root zone plus two feet (2') on either side of the critical root zone and shall be at a minimum depth of 48 inches. Section 3 City of Denton Site Design Criteria Manual 16. Any physical damage to a Tree preserved for credit that is considered to place the survival of the Tree in doubt shall be eliminated as a crechted tree and xvill require additional trees to be planted in its place i7. at the required ratio. Where Tree removal is alloxved through an exemption or by a tree removal pemait and the root system is intertxvined xvith the protected trees that are intended to be saved, the tree sh~Jl be removed by flush cutting xvith the natural level of the surrounding ground. Where stump removal is also desired, the stump grinding shall be alloxved, or upon approval of the City, a trench may be cut betxveen the txvo trees sufficient to cut the roots near the tree to be removed, thereby alloxving removal of the remaining stump without the destruction of the root system of the saved tree. Appendix A2- City of Denton Site Design Criteria Manual Tree Protection Zone t The tree protection zone is the area around the tree or ~oroups of trees in xvh/ch no grading or construction activity may occur. Tree Fencinq Pro erl fenced tree durin construction Same tree after construction Appendix B City of Denton Site Design Criteria Manual Tree Protection - Grade Changes_ Grade Chanq~ · 2" - 4" of fill kills roots. · Fine "feeder" roots are near the soil surface. Any_"cut" removes roots. Draina eg~patterns change. Use retaining walls if unavoidable. Tree Protection - Root Borinq / Tunneling Why tunneling saves trees Trench Root Tunnel Trenching~ond CRZ only=. Tunnel under roots within CRZ. No Assure "clean cuts" of lar e severed roots. Kee el~e~posed roots moist until Attachment 4 PLANNING AND DEVELOPMENT DEPARTMENT City Hall West - 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cityofdenton.com Tree Inventory Plan Checklist Failure of applicant to provide required information constitutes grounds for refusal of site plan acceptance for processing. Please note that this checklist is intended to assist developers and design professionals in the preparation of submittals for DRC reviexv and are generally xvhat is needed to facilitate the reviexv of the tree inventor5, plan. Under special circumstances, additional items may be required through the Development Reviexv Committee process prior to approval. [] Draxvn on a sheet size of 18" X 24" or 24" x 36"(smaller of larger sheet size may be accepted only if approved by Development Reviexv Committee Chair). [] Draxvn to an engineer scale not smaller than 1" = 60' (smaller of larger scale ma}, be accepted only if approved by Development Reviexv Committee Chair). [] Submitted ~vith a total of t~vo copies individually) folded set ~vith name of project in louver right corner. [] The date, xvritten and graphic scale, north arroxv, proposed name of the development. Unless part of another application (prdiminary or final plat) a key map showing the location of the development in relation to existing streets and highways and dates of preparation and revisions. [] The name and address of the properU, oxvner or oxvners, and registered landscape architect, urban forester, botanist, arborist or other qualified professional processing the inventor5,. [] Title Block containing: Project name, Street address or project, project scale, original date and last revision date. [] Property boundaries plotted to scale. [] Location, diameter (dbh) and/or canopy coverage, and common name of all trees greater than 6-inch dbh. [] All trees ~vill be considered Quality Trees if not identified by spedes type. [] Aerial photography ma}, be utilized to determine canopy coverage. [] If preservation requirements will not be met, dbh of trees is required. [] Date of survey. Aerial photography of the proper~ may be ut~ized to identify existing tree stands and to determine canopy coverage. Large tree stands (greater than 1,000 square fee0, xvNch xvi~ be ~figated, may be inventoried by perfor~ng a deta~ed study xvitNn a spedfied 100 foot by 100 foot area. The study area shall be a representative sample of the entire tree stand and must be approved by the CiU, prior to perfor~ng the suwey. The suwey shall include the size, spedes and health of a~ e~sting trees xvithin the area. The resets of the suwey xvi~ be applied to the total area of the tree stand to deter~ne the total dbh xvitNn the tree stand. · A Tree Inventor5, Plan and the Tree Preservation Plan ma}, be combined on one document. · If no Protected Trees, Historic Trees, Quality Trees, Quality Tree Stands, or Secondars, Trees exist on the property, a letter stating xvhat does exist on the property ma}, be submitted in lieu of a survey. Page i of i Form Updated: 9/2004 Attachment 5 PLANNING AND DEVELOPMENT DEPARTMENT City Hall West - 221 N Elm - Denton, Texas 76201 voice: (940) 349-8350 fax: (940) 349-7707 www.cityofdenton.com Tree Preservation/Replacement Plan Checklist Failure of applicant to provide required information constitutes grounds for refusal of site plan acceptance for processing. Please note that this checklist is intended to assist developers and design professionals in the preparation of submittals for DRC reviexv and are generally xvhat is needed to facilitate the reviexv of the tree inventory plan. Under special circumstances, additional items may be required through the Development Reviexv Committee process prior to approval. A tree preservation plan shall be submitted before the approval of a final plat and/or building permit and shall contain sufficient detail to shoxv the folloxving: [] Draxvn on a sheet size of 18" X 24" or 24" x 36"(smaller of larger sheet size may be accepted only if approved by Development Review Committee Chair). [] Drawn to an engineer scale not smaller than 1" = 60' (smaller of larger scale may be accepted only if approved by Development Review Committee Chair). [] Submitted with a total of two copies individually) folded set with name of proiect in lower right corner. [] The date, xvritten and graphic scale, north arroxv, proposed name of the development. Unless part of another application (prdiminary or final plat) a key map shoxving the location of the development in relation to existing streets and highxvays and dates of preparation and revisions. [] The name and address of the propert7 oxvner or oxvners, and registered landscape architect, urban forester, botanist, arborist or other qualified professional processing the inventory. [] Tide Block containing: Project name, Street address or project, project scale, original date and last revision date. [] Propert7 boundaries plotted to scale. [] Location, diameter (dbh) and/or canopy coverage, and common name of all trees greater than 6-inch dbh. [] All trees xvill be considered Quality Trees if not identified by species type. [] Aerial photography may be utilized to determine canopy coverage. [] If preservation requirements xvill not be met, dbh of trees is required. [] The location of existing and proposed improvements; [] The limits of clearing and grading [] The location, size and health of all existing trees to remain, including tree credit calculations (canopy coverage) and methods proposed to comply xvith tree protection requirements during construction [] The location of any and all permanent conservation easements, restrictive covenants, or other such legal mechanism to alloxv for the long-term conservation of any and all trees required to be preserved. [] The location, size and health of all existing trees proposed to be removed, including calculations (total dbh removed in excess of minimum requirements) to determine the replacement requirements; [] Identification of all trees eligible for preservation; [] If Tree Stand credits are proposed, the type and species of existing understory plants (if any). · A Tree Inventory Plan and the Tree Preservation Plan may be combined on one document. Page i of i Form Updated: 9/2004 S:\Our Documents\Ordinances\04\SI03-0012 ORDINANCE .doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF SUBCHAPTER 3 (PROCEDURES), SUBCHAPTER 13 (SITE DESIGN STANDARDS AND SUBCHAPTER 23 (DEFINITIONS) OF THE DENTON DEVELOPMENT CODE ASSOCIATED WITH TREE PRESERVATION, PROVIDING FOR A PENALTY CLAUSE WITH A MAX//vlUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (SI03-0012) WHEREAS, pursuant to Ordinance No. 2002-040 the .City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, after providing notice and after conducting a public heating as required by law on November 12, 2003, the Planning and Zoning Commission recommended approval of certain changes to Subchapters 3, t3, and 23; and WHEREAS, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Comprehensive Plan and are in the public interest; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Subchapter 3 of the Development Code is hereby amended in part as particularly described in Exhibit "A" attached hereto and made part hereof by reference. All other provisions of subchapter 3 not inconsistent with the amendment shall remain in full force and effect. SECTION 2. Subchapter 13 of the Development Code is hereby amended in part as particularly described in Exhibit "B" attached hereto and made part hereof by reference. All other provisions of subehapter 13 not inconsistent with the amendment shall remain in full force and effect. SECTION 3. Subchapter 23 of the Development Code is hereby amended in part as particularly described in Exhibit "C" attached hereto and made part hereof by reference. All other provisions of subchapter 23 not inconsistent with the amendment shall remain in full force and effect. 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. If any section, subsection, paragraph, sentence, phrase or word in this ordinance, or application there of to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. PAGE 1 S:\Our Documents~Ordinances\04\SI03-0012 ORDINANCE.doc SECTION 6. This ordinance shall become effective fourteen (14) days fi:om the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 2 Attachment A Subchapter 3 - Procedures Sections: 35.3.1 35.3.2 35.3.3 35.3.4 35.3.5 35.3.6 35.3.7 35.3.8 35.3.9 35.3.10 Purpose. Procedures and Application Requirements. Denton Plan Amendment Procedure. Zoning Amendment Procedure. Planning and Zoning Commission Procedure. Board of Adjustment Procedure. Staff' Revie~v Procedure. Local Permit Procedure. Religious Freedom Procedures. Gas Well Permit Relief Provisions. 35.3.1 Purpose. The purpose of this Subchapter shall be to establish procedures for the processing of planning actions that affect the development and use of property subject to the planning jurisdiction of the City. 35.3.2 Procedures and Application Requirements. All planning actions shall be processed by one of the folloxving procedures: 1. Denton Plan Amendment: requiring action by the City Council after recommendation from the Planning and Zoning Commission. 2. Zoning Amendment: requiring action by the City Council after recommendation from the Planning and Zoning Commission. 3. Planning and Zoning Commission: requiring action by the Planning and Zoning Commission. 4. Board of Adjustment: requiring action by the Board of Adjustment. 5. Staff Review: requiring action by City Staff: 6. Local Permit: requiring action by the Director of Planning and Development. 7. Religious Freedom: requiring action by City Council. Application and Approval Requirements: 1. A record oxvner or the record oxvner's agent may file an application for a planning action required by tNs Chapter. The Director or Building Official may require an applicant to provide documentation of the applicant's authority to file an application. 2. The Director may adopt rules establisNng the requirements for any application required under tNs Chapter. The rules shall be published in the Application Criteria Manual. The rules shall include the information required by the Director or the Building Official to determine if the application is complete. 3. A complete application shall be submitted along xvith the application fee. The fees shall be established by the City Council and be published in the Application Criteria Manual. 4. The Director or the Building Official shall disapprove an application and shall not accept an application unless the application is complete. An application is complete if the application contains the information required by the Application Criteria Manu~J. 5. The applicant may resubmit the application for approval by the Director or the Building Official along xvith the resubmittal fee according to the Application Criteria Manual. 6. An Applicant may appeal the disapproval of an application to the Board of Adjustment. 35.3.3 Denton Plan Amendment Procedure. A. The follo~ving actions shall follo~v the Denton Plan Amendment Procedure: 1. Consider adoption of a ne~v comprehensive plan or amendment to The Denton Plan. 2. Consider adoption of a ne~v development code. 3. Consider an application for a zoning change that does not conform to the Future Land Use element of The Denton Plan. A. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. The application shall address the impact of the proposed change on the follo~ving: a. The Goals and Objectives of The Denton Plan, b. The Future Land Use element of The Denton Plan, c. The balance of land uses in the City; d. Adequate Public Facility elements of the Denton Plan, and ho~v the proposed change ~vill affect the provision of the services anticipated in The Denton Plan. 3. The actions in Section 35.3.3.A shall be further evaluated under the follo~ving factors to balance the interest in promoting the public health, safety, morals, or general ~velfare against the right to the use of the property in issue: a. The existing land use pattern surrounding the property and the possible impact on existing or future development or uses that are in accordance ~vith existing regulations; b. The possible creation of an isolated district unrelated to adjacent and nearby districts; c. The population density in order to facilitate the adequate provision of transportation, ~vater, server, schools, parks, public convenience, and other public requirements; d. The cost to the City and other governmental entities in providing, improving, increasing or maintaining public utilities, schools, streets and other public safety measures; e. The possible impact on the environment, including but not limited to, drainage, soil erosion and sedimentation, flooding, air quality and water quantity; f. Whether there are substantial reasons why the property cannot be used in accordance with existing zoning or that proposed by the Future Land Use Map; and g. The action shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of buildings and encoura~ng the most appropriate use of land throughout the City. B. Procedure: 1. Initiation may be made by: a. Recommendation of the CiD- Council. b. Recommendation of the Planning and Zoning Commission. c. Recommendation of the CiD- Manager. d. Application by the property oxvner(s). As outlined in the Application Criteria Manual, the application shall be executed by all property oxvners, or their authorized agents. 2. If initiated by the property oxvner, the application must be submitted at least ninety (90) days prior to the first meeting of the Planning and Zoning Commission in January, April, July or October. A public hearing shall be held before the Planning and Zoning Commission in accordance xvith state laxv. 3. Following the public hearing before the Planning and Zoning Commission, the Planning and Zoning Commission shall make a report and forward the report to the City Council in accordance with the City Charter and state law. 4. A public hearing sh~Jl be held before the City Council as required by state law. a. Notice of such hearing shall be given by publication in a newspaper of general circulation in the City stating the time and place of such hearing, which time shall not be earlier than fifteen (15) days from the date of publication. b. The adoption or anaendment of a new comprehensive plan or the adoption of a new development code shall become effective by a simple majority vote of all members of the City Council qu~Jified to vote. c. The adoption of a zoning change that does not conform to the Future Land Use element of the Denton Plan to folloxv the procedures oudined in Section 35.3.4.C. d. After closing the public hearing, the City Council naa}- take action consistent with The Denton Plan. 5. If an application is denied, then the subject property shall not be eligible for resubmittal for twelve (12) months unless the applicant can show a substantial change in circumstances to justify a resubmittal. D. Appeals: 2. The City Council decision is a final action and naa}- not be appealed. 75:,3,,4 ...................... Zenin.g?~endmee,t?roc,e,du.re.: A. The Gllowing actions shall follow the Zoning Amendment Procedure: 1. Consider an anaendment to the Denton Development Code. 2. Consider an application for a zoning change that conforms to the Future Land Use element of the Denton Plan, 3. Consider an application for a Specific Use Permit. 4. Consider an application Gr an Exaction Variance from the SubdMsion Regulations. 5. Consider an application to expand a Special Exception. 6. Consider an application Gr an Alternative Development Plan. B. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. Applications naa}- be approved xvhen the folloxving standards are met: a. The proposed rezonlng conforms to the Future Land Use element of The Denton Plan. b. The proposed Specific Use Permit meets the criteria set forth in Subchapter 6, and conforms to the purpose and intent of The Denton Plan. c. The proposed rezoning or Specific Use Permit facilitates the adequate provision of transportation, xvater, sexvers, schools, parks, other public requirements and public convenience. d. The proposed Exaction Variance is appropriate based on a finding that the imposition of the regulation(s) exceeds an}- reasonable benefit to the property oxvner or is so excessive as to constitute confiscation of the tract to be platted. e. The proposed Special Exception (or expansion) to the zoning regulations is appropriate based on the character and use of adjoining buildings and those in the vicinity, the number of persons residing or xvorking in such building or upon such land, traffic conditions in the vicinity, and conformance of such area to the Zoning Map and The Denton Plan. In granting a special exception the board may designate conditions that, in its opinion, xvill secure substantially the purpose and intent of this Chapter. A special exception shall only be ~anted upon a finding that: i The exception is in ham~ony ~vith this Chapter; ii The public ~velfare and convenience are substantially sensed; iii Neighboring property is not substantially injured; iv The exception ~vill not alter essential character of the district and immediate neighborhood; and v The exception ~vill not ~veaken the general purposes of this Chapter. f. The proposed Alternative Development Plans meet the intent of the Denton Plan and Development Code. C. Procedure: 1. Initiation of a Zoning Amendment procedure may be made by: a. Recommendation of the City Council. b. Recommendation of the Planning and Zoning Commission. c. Recommendation of the City Manager. d. Application by the property o~vner, or their authorized agent. 2. A public hearing shall be held before the Planning and Zoning Commission in accordance ~vith state la~v. 3. Follo~ving the public hearing before the Planning and Zoning Commission, the Planning and Zoning Commission shall make a report and for~vard the report to the City Council in accordance ~vith the City Charter and state la~v. 4. A public hearing sh~Jl be held before the City Council as required by state la~v. a. Notice of such hearing shall be given by publication in a ne~vspaper of general circulation in the City stating the time and place of such hearing, ~vhich time shall not be earlier than fifteen (15) days from the date of publication. b. If a proposed amendment has been denied by the Planning and Zoning Commission, such amendment shall not become effective except by a three-fourths (3/4) vote of all members of the City Council qualified to vote. c. If a proposed rezonlng of property has been protested in ~vriting by the o~vners of at least t~venty percent (20%) of the area ~vitNn t~vo hundred feet (200'), such amendment shall not become effective except by a three-fourths (3/4) vote of all members of the City Council qualified to vote. 4. After closing the public hearing, the City Council may take action consistent ~vith The Denton Plan and the Development Code. 5. If an application is denied, then the subject property shall not be eligible for resubmittal for t~velve (12) months unless the applicant can sho~v a substantial change in circumstances to justify a resubmittal. D. Appeals: 1. The City Council decision is fin~J and may not be appealed. ,,,3,5:,3,,5. A. The follo~ving actions shall follo~v the Planning and Zoning Commission Procedure: 1. Consider an application for a Plat. 2. Consider an application for a Hardship Variance from the Subdivision Regulations. 3. An Alternative Tree Preservation Plan. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. Applications may be approved ~vhen the follo~ving standards are met: a. The proposed Plat meets the requirements of Subchapter 16 and state la~v. b. The proposed Hardship Variance is appropriate based on a finding that unreasonable hardships or difficulties may result from strict compliance ~vith the subdMsion regulations or the purposes of the regulations may be served to a greater extent by an alternative proposal. A variance may be approved so that substantial justice may be done and the public interest secured; provided that the variance shall not have the effect of nulli~ing the intent and purpose of these regulations; and further provided the Planning and Zoning Commission shall not approve variances unless it shall make findings based upon the evidence presented to it in each specific case that: i The granting of the variance ~vill not be detrimental to the public safety, health, or welfare or injurious to other property; ii The conditions upon xvhich the request for a variance is based are unique to the property for ~vhich the variance is sought and are not applicable generally to other property; iii Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the oxvner xvould result, as distinguished from a mere inconvenience, if the strict letter of the subdivision regulations is carried out; iv The variance ~vill not in any manner vary the provisions of The Denton Plan, the Development Code, and the Denton Mobility Plan, except that those documents may be anaended in the manner prescribed by law; and v The special or peculiar conditions upon which the request is based did not result from or were not created by the act or commission of the owner or any prior owner, subsequent to the date of creation of the requirement from wh/ch a variance is sought. Procedure: i. Initiation of a Planning and Zoning Commission procedure may be made by: a. Recommendation of the City Manager. b. Application by the property oxvner, or their authorized agent. 2. A public hearing shall be held before the Planning and Zoning Commission in accordance xvith state laxv related to residential Replats and Variance applications. 3. A public meeting shall be held before the Planning and Zoning Commission in accordance xvith state laxv related to Plats and Alternative Development Plan applications. 4. After closing the public meeting, the Planning and Zoning Commission may take action consistent xvith The Denton Plan and the Development Code. Appeals: 1. The Planning and Zoning Commission decision on Plats is final and may not be appealed. 2. The Planning and Zoning Commission decision on a Hardship Variance may be appealed to the City Council by the applicant. ,.3,5~3',6 ..................... Bo.ard?f A~djus=tmen=t ?rocedu re~ The follo~ving actions shall follo~v the Board of Adjustment Procedure: 1. Consider an application for a Variance from the zoning regulations. 2. Consider an application for a Variance from the sign regulations. 3. Consider an application to change, reestablish or tem~inate a Nonconforming Use. 4. Consider an appeal of an Administrative Decision. Criteria for approval - Generally: 1. A complete application and fee shall be submitted. 2. The board may ~ant a variance from the front yard, side yard, rear yard, lot xvidth, lot depth, coverage, minimum setback standards, and landscaping regulations xvhere literal enforcement of the regulations xvill result in an unnecessary hardship and xvhere the variance is necessary to develop a specific parcel of land, xvhich because of site's shape, size or topograpahy differs from other parcels in the same district, and that it can not be developed in a manner commensurate xvith the development alloxved for the other parcels. A variance shall not be granted to relieve a self-created or personal hardship or to relieve a purely financial hardship. In granting any variance, the board may designate conditions, xvhich, in its opinion, xvill secure substantially the purpose and intent of the Development Code. A variance shall only be granted upon a finding that: a. Special circumstances or conditions apply to the parcel for xvhich the variance is sought, xvhich circumstances or conditions are peculiar to such parcel and do not apply generally to other parcels in the same district or neighborhood and that said circumstances or conditions are such that the strict application of the provisions of this ordinance xvould deprive the applicant of the reasonable use of such parcel; b. The granting of the variance xvill not be detrimental to the public xvelfare or injurious to other property or improvements in the district or neighborhood in xvhich the parcel is located; c. The granting of the variance is necessary for the reasonable use of the parcel and that the variance granted is the minimum variance that xvill accomplish this purpose; and d. The literal enforcement and strict application of the provisions of this ordinance xvill result in an unnecessary hardship inconsistent xvith the general provisions and intent of this ordinance and that in granting such variance the spirit of the ordinance xvill be preserved and substantial justice done. 3. The board may ~ant a variance from the sign regulations only upon a finding that all of the folloxving exist: a. Due to some unique condition or feature of the parcel xvhich is not generally common to other parcels, literal compliance xvith the sign regulation xvould cause unnecessary hardship; b. The granting of the variance xvill not violate the spirit or the intent of the regulations; and c. The condition or feature xvhich creates the need for the variance did not result from the oxvner's acts. 4. The board may authorize the actions described beloxv xvith respect to nonconforming uses if the actins xvould not unreasonably increase the impact to the surrounding properties, nor substantially prolong the life of the nonconforming use. Action by the board shall have due regard for the property rights of the person or persons affected and shall be considered in regard to the public xvelfare, character of the neighboring properties, and the conservation, preservation and protection of property. Based on the foregoing criteria, the board naa}- authorize the folloxving actions: a. The reconstruction and occupancy of a nonconforming structure, or a structure contaiaing a nonconforming use, xvhere such structure has been damaged by fire or other causes to the extent of more than rift)- percent (50%), but less than the total of the replacement cost of the structure on the date of the damage. b. The enlargement, expansion or repair of a nonconforming structure in excess of rift)- percent (50%) of its current value. In such instance, current value shall be established at the time of application for a hearing before the board. If such expansion or enlargement is approved by the board, all provisions of the district in xvNch such structure is located shall apply to the nexv construction on the lot or parcel. A person shall not expand a nonconforming use beyond the lot on xvNch the use is located hoxvever, the board may alloxv the person to provide off-street parkSng or loading spaces on another lot; c. A change of use from one nonconforming use to another nonconfomaing use, provided that such change is to a use of a more restricted classification. In the event that a nonconforming use is changed to a nonconfomaing use of a more restricted classification, the building or structure contaiaing such nonconforming use shall not later be reverted to the former loxver or less restricted classification. The board may establish a specific period of time for the conversion of the occupancy to a conforming use; d. To authorize the occupancy of an abandoned nonconfom~ing structure. Such action by the board shall have due regard for the property rights of the person or persons affected, and shall be considered in regard to the public xvelfare and safety, character of the area surrounding such structure, and the conservation, preservation and protection of property. 5. The Board may revie~v and approve, reverse, or modify any staff determination made pursuant to Sections 35.3.7.A.3 and A.4 of tNs Subchapter. The decision of the board shall be based on the intent of tNs Chapter. Procedure: i. Iaitiation of a Board of Adjustment procedure may be made by: a. Recommendation of the CiD- Manager. b. Application by the property oxvner or their authorized agent. 2. A public hearing shall be held before the Board of Adjustment in accordance xvith state laxv. 3. After closing the public hearing, the board may take action consistent xvith the Development Code and state laxv. A concurring vote of six (6) members of the board shall be necessary to reverse an administrative decision of the staff; or to approve an application on any matter upon xvhich the board is required to act under tNs Chapter. Appeals: i. The decision of the Board of Adjustment is final and may be appealed pursuant to state laxv. 35.3. 7 Staff Review Procedure. The folloxving actions shall folloxv the Staff' Reviexv Procedures: i. Consider an application for Site Design reviexv and other plans required for Site Plan approvals; 2. Consider an application for a MSnor Plats; 3. Make determinations regarding the application and interpretation of standards, criteria, and requirements of this Chapter; and 4. Make determinations regarding the appropriate designation for nexv and unlisted uses based on similar uses that are described. 5. Consider an application for a Watershed Protection permit. Criteria for approval - Generally: i. 2. A complete application and fee shall be submitted. Applications may be approved xvhen the folloxving standards are met: a. The proposed Site Design meets the requirements of The Denton Plan and the Development Code; and b. The proposed Minor Plat meets the requirements of the Development Code and state lax,v. Procedure: 1. Initiation of a Staff' Reviexv procedure may be made by: a. Recommendation of the Director of Planning and Development; or b. Application by the property oxvner or their authorized agent. 2. Within thirty (30) days after receipt of a complete application, the Staff' shall issue a xvritten decision to the applicant. Appeals: 1. A Staff' decision on Site Design reviexvs may be appe~Jed to the Planning and Zoning Commission. 2. A Staff' decision on Minor Plats is final and may not be appealed. 3. A staff' determination pursuant to Sections 35.3.7.A.3 and A.4 may be appealed to the Board of Adjustment. 4. A Staff' decision on a Watershed Protection Permit or a Gas Well Development Plat may be appealed to the Planning and Zoning Commission pursuant to laxv, Home Rule authority and its authority under Tex. Loc. Gov't Code Chapter 212. 35.3.8 Local Permit Procedure. A. Upon application, the Director may alloxv an application to be processed under preexisting land development regulations if: 1. The applicant can demonstrate that he had a pre-existing, investment-backed, good faith expectation that he xvould be permitted to commence and complete a specific project under the standards set out in Para~aphs C, D, and E, or 2. The applicant can demonstrate a project in progress pursuant to state laxv. B. Definition: 2. For the purpose of this subchapter, an "investment backed expectation" is defined as the expenditure of substantial sums of money xvhich cannot be recovered or an irreversible change of position that imposes on the applicant an obligation to expend substantial sums of money in the future. 3. For the purpose of this section, the "date of notice that the revised regulation is in progress" sh~Jl be xvhen an anaendment is posted on an agenda of the Planning and Zoning Commission in accordance xvith state laxv. In considering xvhether a development expectation may be processed under preexisting regulations, the Director may consider: i. Whether there has been an act of the City or an officer or agency of the City upon xvhich the applicant in good faith has relied to his detriment in a manner that makes it inequitable to enforce the terms of the currently effective development regulations xvith respect to the applicant's property. 2. The extent to xvhich the applicant has, prior to the date of notice that the revised regulation is in progress made a substantial commitment of money or resources directly associated xvith physical improvements on the land such as grading, land balancing, installation of utility infrastructure or other public improvements, or for the design of specific buildings and improvements to be constructed on the site. 3. The extent to xvhich the applicant has secured permits for, and commenced or completed, the construction of subdivision improvements and buildings in part but not all of a project that xvas contemplated to extend over a period of months or years. 4. Whether the applicant prior to the date of notice that the revised regulation is in progress has made contractual commitments to complete buildings and deliver title thereto or occupancy thereof. 5. Whether prior to the date of notice that the revised regulation is in pro~ess the applicant has incurred financial obligations to a lending institution, xvhich, despite a thorough reviexv of alternative solutions, the applicant xvill be unable to meet unless he is permitted to proceed xvith the proposed development. 6. Whether enforcement of the terms of the currently effective development regulations xvill expose the applicant to substantial monetary liability to third persons; or xvill leave the applicant completely unable, after a thorough reviexv of alternative solutions, to earn a reasonable return on the property. 7. Whether the right of the applicant to commence and complete the proposed development may have been processed only xvith respect to an identifiable and discrete portion of the proposed development. An applicant may commence and complete construction of a specific proposed project, or a portion thereof, if the applicant can demonstrate that: i. He oxvned the parcel proposed to be developed on the date of notice that revised regulation xvas in pro~ess xvith respect to such parcel and the specific development proposed for the parcel xvas then laxvful and permitted. 2. Applying the consideration set out in Paragraph C of this subchapter, the development expectations of the applicant xvere reasonable and final xvhen formulated and investment- backed. 3. Requiring that the applicant's property be developed in accordance xvith the currently effective development regulations xvill, considering the investment of applicant prior to the date of notice that rezonlng is in progress, deprive the applicant of a reasonable rate of return on his investment. In determining the reasonableness of the proposed rate of return, the folloxving categories of expenditures shall not be included in the calculations of the applicant's investment. a. Expenditures for professional services that are unrelated to the design or construction of the improvements proposed for the projected development. b. Expenditures for taxes except for any increases in tax expenditures, xvhich result from governmental approvals or the construction of improvements on the property of the applicant. c. Expenditures xvhich the applicant has ~Jlocated to the particular proposed project but xvhich the applicant xvould have been obliged to incur as an ordinary and necessary business expense (for example, employee salaries, equipment rental, chattel mortgage payments) had the plan for the particular project not been formulated. E. General Provisions. i. The fact the property has been or is in a particular zoning classification under this Chapter, or any prior Zoning Ordinance of the City, shall not, in itself, establish that an applicant may proceed to process the application. 2. Any person, firm, or corporation having an ownership interest in property may Ge an application for a determination of the right to process the application. The application shall contain such other information as the Director may specitS- to make the determination. 3. A determination of the Director with respect to allow a permit to be processed under preexisting regulations shall expire and be of no further force or effect unless construction is actually commenced within one (i) year of the date the detemaination is made. 4. Any person, firm or corporation, having an ownership interest in the property, and claiming a right to commence and complete a specific proposed development who does not Ge an application for a determination under this subchapter, within six (6) months of the effective date of a revised regulation shall be deemed to have waived his right to seek such a determination. 5. An applicant may appeal the Director's determination within la days by filing an application as a Zoning Amendment as outlined in Section 35.3.4.C. 6. A determination that a permit may be processed under preexisting regulations shall be treated as a special exception to the underlying zoning regulation. 7. No application for local permit will be allowed for a Watershed Protection permit. Requests for relief must be made under Section 35.3. i0. ,,,a,57:? Re!~gious Freedom, Pmqedures: ...................................................................................... A. A person may claim that a provision of the Denton Development Code substantially burdens the person's free exercise of religion. In making such a claim a person shall ~ve written notice to the City by certified mail, return receipt requested according to the provisions of Texas Civil Practice & Remedies Code ~ 100.001, et. seq. (Vernon Supp. 2001). B. The City Council may grant a xvaiver or parti~J xvaiver of the provisions of the Denton Development Code according to federal or state laxv to accommodate a person's free exercise of religion. 35.3.10 Gas Well Permit Relief Provisions. A. The purpose of this provision alloxvs a determination of xvhether the application of the standards in the Denton Development Code as applied to a Watershed Protection Permit and related development applications xvould, if not modified or other relief granted, constitute a regulatory taking under constitutional standards. B. A property oxvner or his authorized agent may file an application for relief under this subsection folloxving final decision to deny or conditionally approve an application for a Watershed Protection Permit and related applications xvithin ten (la) days. C. The Director has the authority to establish requirements for applications in the Application Criteria Manual. No application shall be accepted for filing until it is complete and the fee established by the City Council of the City of Denton has been paid. D. Upon approval of an application in xvhole or in part by the City Council, the Director shall process the Watershed Protection Pemait, and related development applications and the Director sh~Jl decide the applications consistent xvith the relief granted on the application, including any amendments to applicable standards approved by City Council. E. A denial of an application by the City Council is a final detemaination. F. Criteria for approval. In deciding xvhether to grant relief to the applicant, the City Council xvill consider xvhether there is any evidence from xvhich it can reasonably conclude that the application of all or a part of the standards governing approval of a xvatershed protection permit under the Development Code xvill deprive the applicant of all economically viable use of the land, based upon the folloxving factors: 1. Whether the operations proposed are consistent xvith protecting the ecologic~J integrity and environmental quality, including protection of surface and ground xvater sources, of potentially impacted environmentally sensitive areas. 2. The nature and intensity of the uses alloxved folloxving application of the standards in the Development Code to the xvatershed protection pemait and related development applications, in comparison xvith the nature and intensity of the uses alloxved xvithout application of the standards; 3. Whether the standards of the Development Code xvhen applied to the xvatershed protection permit and related development applications alloxv an economically viable use of the land; 4. For applications in xvhich it is alleged that there has been a devaluation of property, xvhether the adoption or application of standards in this article is the producing cause of any devaluation of the property; 5. The extent to xvhich the applicant's expectations for economically viable uses have been realized through actual or anticipated development on land or an interest in land ori~nally part of the same tract or parcel as the land for xvhich relief is sought under the application 6. The extent to xvhich applicant has taken advantage of any other relief measures provided by this Code that xvould result in mitigation of economic impacts resulting from application of the standards in this Land Development Code; 7. The extent to xvhich the oxvner of the property had actual or constructive notice of regulations or proposed changes in the standards governing xvatershed protection permits; 8. Unique circumstances exist on the property on xvhich the application is made related to size, shape, area, topography, surrounding conditions and location that do not apply to other property in the vicinity. 9. Whether there are other alternative xvell site locations. 10. Any clam for relief pursuant to Tex. Loc. Gov't. Code Chapter 245. G. In granting relief under the application, the city council may xvaive or moditST the standards to be applied to the xvatershed protection permit or related development applications, and may impose reasonable conditions on related development applications in order to implement the relief granted. The council also may initiate an application for a zoning map amendment in order to affbrd the relief ~anted, provided that such application shall be decided in accordance xvith section 35.3.4, subchapter 3. In such case, the council's decision on the application shall not be considered final until the application for the zoning map amendment is decided. The action taken by the council under this section shall not deprive the planning and zoning commission or any responsible offici~J of its final approval authority over subdMsion plats and other development permits. H. No application for local permit under Section 35.3.8 ~vill be allo~ved for a Watershed Protection Permit. 35.3.11 Tree Preservation Relief Provisions. The purpose of this provision allo~vs a determination of ~vhether the application of the Denton Development Code as applied to a Tree Removal Application and related development applications, ~vould if not modified or other relief ~anted, may unreasonably burden the development of the proper~T. B. A property oxvner or his authorized agent may file an application for relief under tNs Subsection folloxving a final decision to deny or condition~Jly grant an application for a Tree Removal Permit. C. The Director has the authority to establish requirements for Applications for Tree Preservation Relief in the Application Criteria Manual. No application shall be accepted for filing until it is complete and the fee established by the CiD~ Council has been paid. D. Upon approval of an application for relief in xvhole or in part by the CiD~ Council, the Director shall process the Tree Removal Permit and related development applications pursuant to the relief ~anted on the application for relief approved by the City Council. E. A den/al of an application for relief by the CiD~ Council is a final determination. F. Criteria for Approval. In deciding xvhether to grant relief to the applicant, the City Council shall consider xvhether there is any evidence from xvhich it can reasonably conclude that the application of all or a part of the provisions of the Denton Development Code that apply to tree preservation may deprive the applicant of all economically viable use of the properD~, based on the folloxving factors: 1. Whether there is a un/que physical circumstance on the proper~T. 2. Whether the proposed design has minimized the loss of trees to the extent possible. 3. Whether preservation and/or mitigation unduly burdens the development of the proper~~. (Amended ()rd. 2004-059 03/02/2004) Attachment B Subchapter 13 -Site Design Standards Sections: 35.13.1 35.13.2 35.13.3 35.13.4 35.13.5 35.13.6 35.13.7 35.13.8 35.13.9 35.13.10 35.13.11 35.13.12 35.13.13 Purpose and Intent. Application. Procedure / Plans Required. Criteria for Approval. Alternative Development Plan. Street Tree Requirements.Left Blank for Future Use Tree Preservation and Landscape ~~,-2~y Requirements. Buffer and Screening Requirements. Fence Requirements. Access, Parking and Circulation Requirements. Drive-Through Use Requirements. Light and Glare Performance Requirements. Site Development Requirements. 35.13.1 Purpose and Intent. The purpose and intent of tNs Subchapter is to regulate the manner in xvNch land in the City is used and developed, to minimize adverse effects on surrounding property oxvners or the general public, and ensure that high quality development is maintained throughout the community. 35.13.2 Application. The standards of tNs Subchapter shall apply to those developments, excepting a~icultural uses, that meet any of the folloxving thresholds: A. Residential. 1. Building a structure that contains txvo or more dxvelling units. 2. Building a structure on lots of less than 10,000 square feet. 3. Developing a parking lot. Non-residential. 4. Building a structure of greater than 1,000 square feet. 5. Converting a residential structure to non-residential use that requires site plan improvements. 6. Developing a parking lot. Expansions. 1. The expansion of existing buildings or site development, excepting single and txvo family, is subject to the provisions of tNs Subchapter bas ed on the Expansion Applicability Table. 35.13.3 Procedure / Plans Required A Site Reviexv is required for any development that is required to meet the requirements of tNs Subchapter. 1. The Staff' Reviexv Procedure xvill be used to process a request for a Site Reviexv. 2. Site Reviexv applications shall be made in accordance xvith the Site Design Criteria Manu~J. Expansion Applicability Table Single-family expansion within permitted lot coverage. Multi-family expansion of 10% of the number of units or 10 units, whichever is less. Non-residential expansion (based on floor area) of 1,000 sf or 25%, whichever is greater [BUT NOT EXCEEDING 10,000 SF FOR RETAIL USES]. Casualty loss replacements (for all uses) that exceed the above-defined thresholds. Reconstruction after any voluntary demolition of all or substantially all improvements on a site. Parking lot expansion (excluding re- striping) of six spaces OF more. Conversion of a residential structure to a non-residential use where no site improvements are required. N/A -only a "plot plan". YES YES YES - but only a "plot plan" for single-family. YES YES N/A N/A YES, based on total trips. YES, based on total trips. YES, based on total trips (N/A to single- family). YE S N/A N/A N/A YES, applied to the expanded impervious area attributable to the new units up to a 50% increase in the number of units unless the entire site still complies; then, for increases greater than 50%, to the entire site. YES, applied to the expanded impervious area attributable to the new floor area up to a 50% increase in floor area unless the entire site still complies; then, for increases greater than 50%, to the entire site. YES, applied to the expanded impervious area attributable to the new units or new floor area up to a 50% increase in the number of units or floor area (unless the entire site still complies); then, for expansions greater than 50%, to the entire site (N/A to single-family). YES, applied to the entire site. Lost canopy due to the expansion must be replaced, but only if the site, as a whole, does not comply. N/A N/A YES, applied to new units with exterior walls up to a 50% increase in the number of units; then, for increases greater than 50%, to all units. YES, applied to new floor area with exterior walls up to a 50% increase in floor area; then, for increases greater than 50%, to all buildings. YES, applied to the new units or new floor area with exterior walls up to a 50% increase in the units or floor area; then, for increases greater than 50%, to all units/buildings (N/A to single- family). YES, applied to all improvements N/A N/A N/A YES, applied to the additional parking required for the new units up to a 50% increase in the number of units; then, for increases greater than 50%, to all parking. YES, applied to the additional parking required for the new floor area up to a 50% increase in floor area; then, for increases greater than 50%, to all parking. YES, applied to the additional parking required for the new units or new floor area up to a 50% increase in the number of units or floor area; then, for increases greater than 50%, to all parking (N/A to single-family). YES, applied to all parking. YES, applied to the additional parking spaces up to a 50% increase in the number of spaces; then, for increases greater than 50%, to all parking. N/A N/A YES, applied to the linear feet of street frontage contiguous to the new units and additional required parking up to a 50% increase in the number of units; then, for increases greater than 50%, to all street frontage. YES, applied to the linear feet of street frontage contiguous to the new floor area and additional required parking up to a 50% increase in floor area; then, for increases greater than 50%, to all street frontage. YES, applied to the linear feet of street frontage contiguous to the new units or new floor area and additional required parking up to a 50% increase in the number of units or floor area; then, for increases greater than 50%, to all street frontage (N/A to single-family). YES, applied to the entire site. YES, applied to the linear feet of street frontage contiguous to the new parking spaces up to a 50% increase in the number of spaces; then, for increases greater than 50%, to all parking with contiguous street frontage. N/A Transportation Impact Analysis (TIA). i. A TIA shall be required for any proposed site development that can be reasonably expected to generate more than 1,000 vehicle trip ends during a single day and/or more than i00 vehicle trip ends during a single hour. 2. The TIA shall be developed in accordance xvith the Transportation Criteria Manual. 35.13.4 Criteria for Approval. The follo~ving criteria shall be used to approve or deny a site plan: A. All applicable City Ordinances and Regulations have been met and xvill be met by the proposed development. B. All requirements of the Site Design Subchapter have been met. C. That adequate capacity of public or private facilities for xvater, sexver, paved access to and through the development, electricity, storm drainage, and adequate public facilities for transportation can and xvill be provided to and through the subject property. Adequacy can be determined based on the infrastructure standards established by the City and Denton County. 35.13.5 Alternative Development Plan An applicant may propose an Alternative Development Plan xvhich meets or exceeds the design objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Development Plan provides the option to address the design criteria through a flexible discretionary process reviexved by the City Council utilizing the Zoning Amendment Procedure process outlined in Subchapter 3. A. Criteria for Approval. The goals and objectives xvhich must be met, and by xvhich the proposal xvill be judged are: 1. Preserve Existing Neighborhoods. 2. Assure quality development that fits in xvith the character of Denton. 3. Focus nexv development to activity centers to curb strip development and urban spraxvl. &Ensure that infrastructure is capable of accommodating development prior to the development occurring. 35.13.7 Tree Preservation and Landscape ~'~'~ Requirements. Tree Preservation: i. Purpose and Intent The Denton Plan identifies the importance of environmental management. The purpose of these regulations is to promote the preservation of trees, tree stands, including but not limited to remnants of the Cross Timbers Forest and existing tree canopy, to protect trees during construction, to facilitate site design and construction that contribute to the long term viability of existing trees which improves environmental conditions, specifically to comply wkh air and water qualiD- regulations, to increase property values and to develop a process to control the removal of trees. It is the further purpose of this ordinance to achieve the following broader objectives: a. Prevent untimely and indiscriminate removal or destruction of trees. b. Maintain and enhance a poskive inaage of the CID-. c. Protect trees and promote the ecological, environmental and aesthetic values of the CID-. d. Preserve historic trees. e. Provide for a permitting and enforcement procedure. 2. ApplicabiliD- a. Unless exempt under Subsection C, this Subchapter shall apply to: i Undeveloped land. ii All property to be redeveloped including additions or alterations, but not including interior alterations or exterior alterations that do not change the footprint of the building. iii Gas Well Development including but not limited to gas xvell transmission lines. iv Right of way, streets, parks, and other public property under the jurisdiction of the CiD- of Denton. b. To the extent there is a conflict between this Subsection and an}- other Subsection including but not limited to Subsection 35.17.9 ,(Upland Habitat Development Standards) the more stringent requirement shall apply that preserves the largest quantity of trees. To the extent there is a conflict betxveen this Subsection and Subsection 35.22.5.A.8.c (Gas Well Drilling and requires 1:1 mitigation, shall apply. Exemptions: i Production), the gas xvell regulations, xvhich Developments that have a completed application on file for a final or preliminaU- plat for a single-family development or a building permit, xvhichever is applicable, as of the effective date of this ordinance. Any development for xvhich construction has begun on infrastructure improvements pursuant to an approved three-way construction contract, including roads, as of the effective date of this ordinance. In the event that construction of all iii infrastructure improvements in such a development ceases for a continuous period of i80 days or longer, this exemption shall cease to apply on the 18lst da}- after cessation of construction unless the CiD- accepts the infrastructure improvements. Property on which a single-family or two-family residential dwelling unit(s) exists. iv Trees located in the visib/lity triangle area, as defined in the Transportation Criteria Manual. v Public ut/liDT projects associated with a master plan. conducted by a public ut/liDT or a municipal oxvned utili~~. vi Public Utilities have the right to trina, cut, and/or remove any and all trees that: (a) Interfere with or encroach upon the operations of existing public utilities; or Cr~) Create a safeD~ issue for ut/liD~ crews; or (c) Create a safeDT issue for the public. v// CiD~ LandG1 and Mrport. v//i Nursed~ trees that are planted and growing on the premises of a Wholesale Nursed~ that are intended for sale in the orchnau~ course of business. ix Any tree determined to be diseased, dying or dead, by a qualified professional or creating a public nuisance or dama~ng a foundation. ~ Any tree determined ~o be ~ausing 2 danger or b~ in hazardous ~onditlon as ! r~ult of a natural event such as tornado, storm, flood or other act of God that endangers the public health, welfare or safety and requires immediate removal. xi Clearing of understory necessary to perform so/1 borings, boundary surveying of re~J proper~~ or to conduct tree surveys or inventories As long as the clearing for surveying shall not exceed a width of two (2) feet for general survey (i.e. of easement boundary, etc.) and eight (8) feet for survey of property boundary lines and any tree having a ten (10) inch dbh or ~eater sh~Jl not be removed under this exemption during such boundary or general surve54ng. of this xii Capital Improvement Projects awarded prior to the effective date Subsection. xi// Property zoned Rural Residential (RD-5) or Rural Commercial (RC). Permit Required a. No person, directly, or indirectly, shall cut doxvn, destroy, remove or move, or intentionally destroy or damage any QualiD~ Tree, Protected Tree. or Historic Tree without first obtaining a tree removal permit and compl}Sng with the requirements of th/s Subsection. b. No grading shall take place on any undeveloped property that contains trees subiect to th/s Subsection without obtaining a tree removal permit. c. No heax3~ equipment shall be moved onto a site prior to all applicable permits being issued. d. Trees greater than 3 "dbh and not identified as a Quality Tree, Protected Tree. or Historic Tree within th/s Subsection may be removed with a permit. e. Trees less than 3" dbh and not identified as a Historic Tree may be removed without a permit. Permit Review and Approval Process a. The Director shall adopt rules establish/ng the requirements for the permitting and approval process in the Application Criteria Manual. The rules shall include infomaation required by the Director to determine if the application is complete. b. A request for tree removal pern~t shall be submitted and approved prior to the removal of any Quality Tree, Protected Tree. or Historic Tree in the City. c. A complete application shall be submitted along ~vith the application fee, if required. The fees shall be established by Ci~T Council and published in the Application Criteria manual. d. A Tree Inventory Plan and a Tree Replacement/Mitigation Plan, if required, must be submitted ~vith the tree removal permit application. e. Permits for tree remov~J issued in connection ~vith a building permit or clearing and grading permit shall be valid for the same period of time. Tree removal permits issued not in connection ~vith a building permit or clearing and grading permit are valid for 180 days. f. After the tree removal permit is issued, the permit holder shall post a tree protection sign, supplied by the CiU~, at each entrance to the properu~ and at any other location designated by the City. g. Upon the request of the applicant, the Planning Director shall be authorized to ~vork ~vith the o~vners, developers, and builders to make non-substantive changes, ~vithin the scope of the ordinance, to plans, pem~its, and other requirements throughout the development and construction processes that ~vill provide the greatest reasonable tree sundval. The decision of the Planning Director may be appealed by the applicant to the Planning and Zoning Commission under Subsection 35.3.5. h. The applicant may file an application for relief from the Tree Preservation/Mitigation requirements in this Subsection pursuant to Subsection 35.3.11 on grounds therein specified to the City Council ~vithin ten (10) calendar days of the posting of the decision by the DRC. The Council shall decide the petition based upon the criteria in Subsection 35.3.11. Tree Designations a. Protected Trees Any healthy tree ~vith an eighteen (18) inch or greater dbh and not in a Quali~~ Tree Stand or a Mesquite, Bois Arc, Locust Hackberu- and/or Cotton~vood species. All trees greater than eighteen (18) inches dbh shall be considered a Protected Tree unless a detailed tree inventou~ is submitted veri~Sng the presence of Mesquite, Bois Arc, Locust HackberuT and/or Cotton~vood species. b. Historic Trees i A Historic Tree is a healthy tree that stands at a place ~vhere an event of historic significance occurred that had local, regional, or national importance; or at the home of a citizen ~vho is famous on a loc~J, re~onal, or national basis. ii A tree may ~Jso be considered historic if it has taken on a legendau- stature to the community; mentioned in literature or documents of historic value; or considered unusual due to size, age or has landmark status. iii The Historic Landmark Commission ~vill make recommendations for Historic Tree designations to the Planning and Zoning Commission (~vhich ~vill conduct a public hearing and include proper~T o~vner notification~ for ultimate approval by the City Council. Upon designation, each tree shah be added to a Historic Tree Re~stu- map to be maintained by the Planning and Development Department. QualiU~ Trees All healthy trees that have a dbh that is ~eater than six (6) inches, but is less than eighteen (18)inches and not ~vithin a Quali~~ Tree Stand. All trees shall be considered Quality Trees unless a detailed tree inventou~ is submitted identi~ing Secondau- Trees. d. Quality Tree Stands Three or more contiguous Quali9T Trees xvhose canopies are generally clustered together. All Tree Stands shall be considered Qu~Ji9T Tree Stands unless a detailed tree inventou~ is submitted identi~Sng the tree stand as an Secondau- Tree Stand. e. Large Secondau- Trees All healthy Mesquite, Bols Arc, Locust HackberuT and/or Cottonxvood trees xvith an eighteen (i8) inch or greater dbh.. f. Secondary Trees All healthy Mesquite, Bols Arc, Locust Hackberry and/or Cottonxvood trees that have a dbh that is greater than six (6) inches, but is less than eighteen (18)inches. g. Secondau- Tree Stands Three or more contiguous Secondau- Trees xvhose canopies are generally clustered together. A SecondauT tree stand must consist of a minimum eigh9~ (80) percent of Secondary tree species. 6. Preservation The folloxving shall apply unless an application for relief is filed and approved under Subsection 35.3.ii. a. Any tree designated as a Historic Tree shall be preserved. b. Any tree designated as a Protected Tree or a Large Secondau- Tree shall be preserved unless mitigated under the requirements of Subsection 7. c. The minimum percentages of all dbh or percentage tree canopy of Quali9~ Trees, Quali9T Tree Stands, Secondary Trees and Secondary Tree Stands that must be preserved as shoxvn on Table 35.i3.7.A and Table 35.i3.7.B. d. All percentages relating to preservation stated xvitbin this section shall be based on the initial tree inventou~ plan. Any subsequent redevelopment of proper9~ must minimally preserve the applicable percentage of the tot~J dbh of quali9T trees as indicated by the initial tree survey. e. A notation shall be placed on the Site Plan or Final Plat identif55ng each Quality Tree, Quality Tree Stand, Protected Tree and/or Historic Tree required to be preserved under this Subsection. The notation sh~Jl limit any future land disturbing activi9~ or construction that xvould impact and/or damage the tree(s) to be preserved or protected and shall run xvith the land and be binding upon ~Jl successors and assigns of the current oxvner. Mitigation If preservation cannot be reasonably achieved, then the folloxving mitigation standards shall apply. a. Protected Trees and Large SecondaU- Trees may be removed if mitigated as identified on Table 35. i3.7.A and Table 35. i3.7.B. b. Quality Trees, QualiB~- Tree Stands, SecondaU- Trees and SecondaU- Tree Stands may be removed in excess of the minimum preservation requirement provided the excess removal is mitigated as identified on Table 35.i3.7.A and Table 35. i3.7.B. Table 35.13.7.A Preservation & Mitigation Requirements for Infill Lots Less than 100% None None None None 1/2 acre Preserved If removed~ If removed, mitigated at a 1/2 acre to 1 100% mitigated at None None acre 1:0.25 ratio. a 1:0.5 ratio. If removed, 1 acre to 100% mitigated at None None 2.5 acres 'J 1:0.5 ratio. a 1:1 ratio. A minimum of 10% of all Q~ality ~r~ preserved in Single-family & ~upl~x Dwe~ing Developments: A minimum of 12.5% of all If removed, Oualiw Trees & Tree Stands If removed ~figated at a 2.5 acres to 100°A) mitigated ~t - ' None preserved in Mdfi-familv and 1:0.75 ratio. 5 acres a 1:1.5 ratio. Non-residential developments Up to 50% of the percentage required to be preserved may z~quir~ments o~zbis Subsection. at a 1:1 rado. A mi~mum of 10% A minimum of 20% preserved preserved in Single-family & in Single-family & Duplex Duplex Dwelling Dxvel~ng Developments: Developments: A minimum of 25% preserved 2X mi~mum of 12.5% Greater If removed, in Multi-family and Non- preserved in M~fi-family and than 5 100% mitigated ~t residential d~2~!c)pm~ If removed ~figated at a Non-residential 1:1 rado. acres a 1:2 ratio dev~!opment~ 0 Up to 50 ~) of the percentage required to be preserved may Up to 50% of the percentage be mitigated under the required to be preserved may requirements of this be mitigated under the Subsection. at a 1:1.5 rado. requirements of this Subsection. at a 1:0.75 ratio. Table 35.13.7.B Preservation & Mitigation Requirements for Non-Infill Lots If removed= If removed, mitigated at a Less than 100% mitigated at None None 1/2 acre 1:0.25 ratio. a 1:0.5 ratio If removed, !~ removed, ~tiga~cl at ~ 1/2 acre to 1 100% mitigated at None None acre 1:0.5 ratio. a 1:1 ratio. A minimum of 10% preserved A minimum of 5% preserved in Single-family & Duplex in Single-family & Duplex A mi~mum of 12.5% A mi~mum of 6.25% If removed, preserved in Mdfi-family and preserved in Mdfi-family and i acre to 100% mitigated at Non-residential developments If removed ~figated at a Non-residential 2.5 acres a 1:1.5 ratio. 1:0.75 ratio, developments Up to 50% of the percentage required to be preserved may Up to 50% of the percentage be mitigated under the required to be preserved may requirement~ of thi~ be mitigated under the Subsection. at a 1:1 ratio, requirement~ of thi~ Subsection. at a 1:0.5 ratio. A minimum of 20% preserved A mi~mum of 10% in Single-fam~y & Duplex preserved in Single-fam~y & Dwelhng Developments: Duplex Dwe~ing Developments: A minimum of 25% preserved If removed, in Mulfi-fam~y and Non- A mi~mum of 12.5% preserved in M~fi-family and Greater mitigated at residential developments If removed, ~figated at a Non-residential than 2.5 100% a 1:2 ratio. 1:1 ratio. acres Up to 50% of the percentage developments requited to b~ pt~v~ may be mitigated under the Up to 50% of the percentage requirements of this required to be preserved may Subsection. at a 1:1.5 rado. be mitigated under the requirements of this Subsection. at a 1:0.75 ratio. c. Each replacement tree shah be a minimum of 2" caliper measured 6" above grade and at least 5' in height ~vhen planted. d. Upon completion of the three-year landscape establishment period, for replacement trees, the Ci~T shall inspect the trees and determine ~vhether nine~~ percent (90%) of the trees are healthy and have a reasonable chance of survMng to maturity. Upon such a finding, the Ci~~ shah release the currency, bond or letter of credit. In the absence of such a finding, the Applicant shall be notified to replace any unhealthy or dead trees. If the applicant does not take remedial steps to bring the proper~~ into compliance, the City shall make demand for payment on the cash bond, surety bond, or letter of credit. The City may use all legal remedies to enforce this subchapter in addition to making demand on the securi~~ provided herein. e. Tree Fund i The Ci~~ sh~21 administer the Tree Fund. Tree funds shah be used to purchase, plant and maintain trees on public property, to preserve ~vooded proper~T that remains in a naturalistic state in perpetui~~, to perform and maintain a ci~--~vide tree inventory and to educate citizens and developers on the benefits and value of trees. The applicant shall pay the fees established by Ci~T Council and published in the Development Revie~v Fee Schedule in the Application Criteria Manual. The fee shall be based on the fair market value of materials and labor at the time of planting and the reasonable estimated cost for maintenance and irrigation for a period of three (3) years. iii Fees contributed to the Tree Fund shall be p~Sd prior to the issuance of a Clearing and Grading Permit on ~Jl Commercial, Industrial, or Multi-Family Residential buildings, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat application for all Residential and Non-Residential SubdMsions as may be applicable. iv Voluntau- contributions for tree preservation shall be placed in the Tree Fund. f. Tree Banks i Areas of a naininaum of one acre that have the characteristics of Cross Timber iii Forests are eligible to be classified as a Tree Bank. Designation of a Tree Bank and transfer of tree credits shall be approved by the DRC Chairman. Tree Banks shall be preserved xvith a permanent easement that shall limit any future land disturbing activiDT or construction that xvould impact and/or damage the tree(s) and shall run xvith the land and be binding upon all successors and assigns of the current oxvner. Methods for the long-term conservation of s~Sd trees may include permanent conservation easements, restrictive covenants, or other such legal mechanisms. iv Only portions of a Tree Bank not designated toxvards tree credit may be used for mitigation as identified in this Subsection. v Trees that are required to be preserved in compliance xvith other development regulations shall not be credited toxvards the Tree Bank. vi Areas that are un-developable, including but not limited to floodplain, xvetlands and riparian areas, shall not be designated as Tree Banks. g Areas that are un-developable, including but not limited to floodplain, xvetlands and riparian areas, shall not be designated as Tree Banks. 8. Alternative Tree Preservation Plan An applicant may propose an Alternative Tree Preservation Plan xvhich meets or exceeds the goals and objectives of this Subchapter but does not meet the standards of this Subchapter. The Alternative Tree Preservation Plan provides the option to address the criteria through a flexible discretionauT process reviexved by the Planning and Zoning Commission utilizing the Planning and Zoning Commission Procedure process outlined in Subchapter 3. a. Criteria for Approval. The goals and objectives xvhich must be met, and by xvhich the proposal xvill be judged are: i The proposed Alternative Tree Preservation Plan adequately achieves, or is an improvement on, the intent of the requirements of this Subsection. ii Assure quality development that fits in xvith the character of Denton. 9. Preservation Incentives a. Tree Credits i All Quality Trees and Quality Tree Stands that are preserved beyond the minimum requirements identified in Table 35. i3.7.A and Table 35.i3.7.B shall be credited toxvards landscape canopy requirements as identified in Table 35.13.7.C. All Quali~T Tree Stands xvith existing understory that are preserved beyond the minimum requirements identified in Table 35.i3.7.A and Table 35.i3.7.B shall be credited toxvards landscape canopy requirements at a ratio of i :2. hi Unless trees preserved are an integral part of the parking lot design, they xvill not be crechted toxvards parking lot canopy requirements. iv Unless trees preserved are an integral part of a required buffer design, they xvill not be credited toxvards buffer requirements. Table 35.13.7.C Credit Received towards landscape canopy requirements for Preservation Beyond Minimum Requirements Identified in Table 35.13.7.A and Table 35.13.7.B Quality Tree i :i.3 QualiD~ Tree - ()ak Species i :i.5 Quality Tree Stands xvithout understory i :i.55 QualiDT Tree Stands consisting of a minimum 90% ()ak Species i :i.75 Quality Tree Stands xvith understory i :i.8 Quality Tree Stands consisting of a minimum 90% ()ak Species xvith i:2 understou~ b. Parking Spaces For eveuT txvelve (i2) dbh of QualiD~ Tree(s) that have been protected on site, beyond the minimum requirements identified in Table 35.i3.7.A and Table 35. i3.7,B one (i) parking space may be added to or subtracted from the required number of parking spaces up to a fifteen (i5) percent increase or decrease. Upon the approval of the Director of Planning and Development, a xvaiver of up to tNr~~ (30) percent may be granted. c. Parking Lot Design The Director of Planning and Development may alloxv parking lot design and parking lot landscaping requirements to vau- from adopted standards to preserve existing trees. d. SubdMsion Design The folloxving incentives may be approved by the DRC Chairman and must be commensurate xvith the qualiu~ and character of the trees to be preserved: i Block Length may be increased up to txven~T five (25) percent. Cul De Sac Length may be increased up to txven~~ five (25) percent. Alternative sidexvalk locations. iv Off, et street location xvithin a right-of-xvay. e. Other Incentives The employment of the folloxving incentives must be approved by CiD~ Council and must be commensurate xvith the qualiDT and character of the Trees to be placed xvitNn a conservation easement or other~vise conserved and the extent to xvNch the preserved land contributes to the preservation of the remnants of the Cross Timber Forest. Incentives may include but are not limited to: i Fee ~vaivers or credits, i0. i/ Reduced open space/park land dedication requirements, i/i Reduction of monetauT assessments relative to a~icultural rollback taxes. iv Tax abatements, v Tax Increment Financing, vi Chapter 380 grant of money, vii Transfer of Development Rights, and/or viii Purchase of Development Rights - purchase by Government or Trust. Enforcement The CiDT Arborist, Building Official or an authorized representative of the CiD~ sh~Jl have the authority to place a Stop Work Order on any activity involving the removal of Protected Tree(s), Historic Tree(s) Quality Tree(s) or Quality Tree Stand(s) or that may other~vise endanger trees contrau- to the provisions of this Subsection and applicable Criteria Manuals. The Building Official may deny ~Jl Permits and Certificates of Occupancy for any site xvhich is not in compliance xvith tNs Subsection and applicable Criteria Manuals. b. Each tree removed in violation of this Subsection shall constitute a distinct and separate offcnse. c. Each tree preserved or planted under this Subsection that is removed, destroyed or dies xvithin three (3) years of approval shall constitute a distinct and separate offense. d. It shall be a defense that trees are injured or destroyed by natural causes, natural disasters, including but not limited to tornadoes, straight-line xvinds, ice storms, fire, floods, hail, or lightning strikes, or through the independent unauthorized actions of third parties. e. The enforcement and penalty provisions of Subsection 35.i.i0.4 shall apply to this Subsection. Landscape and Tree Canopy Requirements The folloxving requirements shall apply to all developments, except single and txvo family lots xvithin residential developments: -A~i. The percentages of Landscape and Tree Canopy requirements are listed in the table entitled Landscape and Tree Canopy Requirements. t~.2. All landscaping and trees shall be installed and maintained in accordance xvith the requirements of the Site Design Criteria Manual. C~.3. Ail properties shall install automatic irrigation systems. The Director may xvaive the irrigation system requirement if a landscaping plan is approved that includes drought tolerant plants or a xeriscape design. DA. The folloxving may count toxvards meeting the Landscape and Tree Canopy requirements: ha. Undisturbed vegetative areas. ~b. Environmentally Sensitive Areas. .~.c. Landscaping in the adjacent public right ofxvay. 4:.d. Plazas and pedestrian circulation areas if constructed xvith pervious material. &e. A percentage of parkSng areas if constructed xvith brick pavers or pervious pavement systems as approved by the Director of Planning and Development. ~..5. Landscape Areas. Landscape area is the portion of a site xvhich is not defined as "lot coverage". t~-6. Tree Canopy. Tree canopy is measured by computing the area that the mature canopy ~vill encompass, based on the Tree List contained in the Site Design Criteria Manual. The mature canopies shall be estimated for existing trees on site. Any tree not on the Tree List shall be estimated by use of standard landscaping references. G;-7. Artificial Lot Line. An artificial lot is intended to provide admiaistrative relief for large sites that will ach/eve planting areas that exceed substantially more than 20% of gross platted lot area after development is completed. The use of artificial lots are limited by the following: &a. If the platted property is over two acres in size, the applicant may request permission to create an "artificial lot" to satisfy the requirements of th/s Subchapter. g:b. The Director of Planaing and Development shall approve the creation of an artifici~J lot only if the spirit and intent of th/s chapter will not be violated. If approved by the Director, artificial lot lines sh~Jl be indicated on the proposed Landscape Plan and shall contain, at minimum, the total anaount of impervious surface coverage, plus 20% of the area inside the artificial lot reserved for required planting area. 3~c. The area within the artificial lot lines shall provide trees and landscaping in compliance with the requirements of th/s section, and may not extend beyond the property boundaries of a single platted lot. 4:.d. The area outside the artificial lot shall be maintained as planting area with live vegetation determined by the applicant. No trees located outside the artificial lot lines may be used for tree credits. &e. The artificial lot lines shall include areas that are adjacent to a public right-of-way or are necessary to accomplish buffering of adjacent properties. Landscape and Tree Canopy Requirements RD-5 Rural Residential 75% 25% 350% NR-1 Neighborhood Residential 1 70% 50% NR-2 Neighborhood Residential 2 70% 50% NR-3 Neighborhood Residential 3 55% 50% NR-4 Neighborhood Residential 4 40% 50% NR-6 Neighborhood Residential 6 40% 50% NRMU-12 Neighborhood Residential Mixed Use 12 40% 45% 20% 40% DR-1 Downtown Residential 40% 45% DR-2 Downtown Residential 25% 25% DC-N Downtown Commercial Neighborhood 20% 25% _ . o 20% CM-G Community Mixed Use General 20% 30% _ . . o 30% RCR-1 Regional Center Residential 1 45% 45% RCR-2 Regional Center Residential 2 25% 30% RCC-N Regional Center Commercial Neighborhood 15% 30% 20% EC-C Employment Centers Commercial 20% 30% - ' ° 30% IC-E Industrial Centers Employment 20% 20% IC-G Industrial Centers General 10% 20% Street Tree Requirements All development fronting on public or private streets, excepting alleys, shall be required to plant street trees in accordance xvith the folloxving standards and in accordance to the Site Design Criteria Manual. The Director may approve alternative plans due to special site conditions, xvhich may, for reasons such as safety, affect the ability to meet these regulations. i. Location. Street trees shall be located between the street and sidexvalk, except in cases xvhere there is a designated planting strip in the right-of-xvay, or the sidexvalk is greater than 8 feet xvide and designed to accept trees in tree xvells. 2. Number and Spacing. Street trees shall be planted at the rate of one tree for every 30 feet, or major fraction thereof, of street frontage. Street trees shall be planted at a regular interval along the street frontage, and shall be of the same species xvithin any specific block. 3. Maintenance. Street trees shall be maintained by the adjoining property oxvner. A. Buffer. A buffer is required based on the folloxving uses being adjacent. All required buffers sh~Jl meet the buffer standards detailed in the Site Design Criteria Manual. 1. T)loes of Buffers. a. Non-residential Uses adjacent to residential uses or zoning districts. b. Multi-family Uses adjacent to single-family residential uses or zoning districts. c. Manufactured Home Parks adjacent to single-family residential uses or zoning districts. d. A parking lot adjacent to a right-of-xvay, excluding local streets and alleys in accordance xvith Section 35.13.10. 2. Design Requirements (for buffers la-c above). a. Any of the folloxving or combination may be used to create a minimum six foot (6') high screen: b. Fencing i Wood fence constructed xvith steel posts and a decorative cap xvith the good side facing the residential use or zoning district. ii A minimum of 10 foot landscaped area xvith one tree for every 30 linear feet. c. Vegetative buffer i The buffer ~vidth is a n~inimum of 30 foot ~vide and, ii Existing and proposed vegetation is a minimum 50% opaque. d. Berms i A n~axin~um of a 1 on 4 side slope facing the residential use or zoning district ~vith a minimum of an 8' xvide top. ii The minimum quantity of plant material shall be calculated as folloxvs: (a) i large tree per 30 linear foot, plus (b) 2 small trees per 30 linear foot, plus (c) 10 shrubs per 30 linear foot B. Screening. Other screening and buffering shall be provided as folloxvs: 1. Refuse Container Screen. Refuse containers or disposal areas shall be screened from vie~v by placement of a solid ~vood fence or masonuT ~vall as tall as the refuse containers, but no less than 5 feet in height. All refuse materials shall be contained ~vithin the refuse area. 2. Service Corridor Screen. When adjacent to residential uses, commercial and industrial service corridors shall be screened. Siting and design of such service areas shall reduce the adverse effects of noise, odor and visual clutter upon adjacent residential uses. 3. Mechanical Equipment Screen. All mechanic~J equipment sh~Jl be screened from any public right-of-~vay or adjacent to residenti~i use or zoning district. 4. Outdoor Storage. All outside storage shall comply ~vith the provisions of Section 35.12.7. C. Exceptions to Buffering and Screening Requirements. The buffering and screening requirements may be ~vaived by the Director subject to the folloxving provisions: 1. Prescribed fences or ~valls may be ~vaived if a building, fence, or ~vall of at least equivalent height, opacity, and maintenance exists immediately abutting and on the opposite side of the lot line. 2. Prescribed buffers may be ~vaived ~vhere the design of the site is in conjunction ~vith a master planned development or ~vithin a mixed use district. All fences are subject to the folloxving requirements and must meet the standards contained in the Site Design Criteria Manual. A. Height. 1. In any required front yard, provided they do not exceed three and one-half (3 1/2) feet in height. B. Subdivision Perimeter Fences/Walls Standards. 2. Along any right ofxvay, excepting local streets and alleys a. Walls shall be made of any combination of xvrought iron, masonry, stone or decorative concrete panels. b. Decorative stone, masonry or stucco pilasters are required at a minimum of 50' on center. c. The use of a cap is strongly encouraged xvith other design elements to modulate the top of the xvall. 3. Along the right-of-xvay of a Local Street a. Walls shall be made of any combination of xvrought iron, and xvood. If xvood is used it shall be constructed xvith steel posts and a decorative cap xvith the good side out. b. Decorative stone, masonry, xvood or stucco pilasters are required at a minimum 50' on center. C. Construction. 4. Perimeter fences located xvithin 50' of a public or private right-of-xvay, excluding local streets or alleys, shall be constructed of masonry material. 5. The framexvork for nexvly constructed fences and xvalls shall face toxvard the builder's property, except xvhere fences are jointly constructed. 6. Fences shall not lean at an angle from the vertical plane any greater than five (5%) percent. 7. The use of barbed xvire, razor xvire or electrified xvire in a fence construction is prohibited, except for pemaitted agricultural and industrial uses. Vision Clearance Area. A vision clearance area shall be provided at intersections xvhich meets the standards contained in the Transportation Criteria Manual. External to the Development. i. Vehictflar access. a. Access Management. All development shall provide access that complies ~vith Access Management principals of location, spacing and sharing of curb cuts. All developments shall provide adequate stacking distance for all entrances. b. Connectivity. All non-residential development, excluding industrial, shall provide access to adjoining properties or developments. 2. Pedestrian access. All developments shall provide pedestrian access by linking to any adjacent sidexvalk(s), multi-use path(s), or public transportation stop. shelters, and pullouts shall be provided as 3. Transit Amenities. Transit amenities, bus required under Subchapter 20 Transportation. Internal to the Development. i. Vehictflar circtflation. a. Internal circulation shall be xvell defined by use of end caps and landscaped areas. b. Cross Access. Prior to division of property, circulation and access standards shall be applied and, if necessary, cross easements shall be required so that access to all properties created by the subdivision can be made from shared curb cuts. c. Parking lots xvith i00 spaces or more shall be dMded into separate areas and divided by landscaped areas or xvallcvvays at least i0 feet in xvidth, or by a building or ~oup of buildings. d. Permeable paving is required for those parking spaces that exceed the number of parking spaces required. 2. Pedestrian circtflation. a. Parking lots xvith i00 spaces or more shall provide adequate pedestrian circulation xvithin the site. Pedestrian xvalkxvays shall be directly linked to entrances and the internal circulation of the building(s). b. A raised ~vallcvvay, of a n~inimum unobstmctive ~vidth of 5', shall be installed through parking areas for Large Scale Developments as defined in Section 35.13.13.6 of this code. Parking Lot Landscaping and Screening Standards. All parking lots, xvhich for purposes of this section, include areas of vehicle maneuvering, parking, and loading, shall be landscaped and screened as folloxvs: 1. Landscape Standards. a. A minimum of 7% of the total parking area shall be landscaped. b. A minimum of 15% of the required parking sh~Jl be covered by tree canopy. c. The tree species shall be an appropriate shade tree and shall be selected from the Tree List in the Site Design Criteria Manual. d. The landscaped and end cap areas shall be planted ~vith trees, shrubs or ~oundcover. Landscaped areas should be evenly distributed throughout the parking area and parking perimeter. Screening at Right of Way. Any combination of the follo~ving may be used. These requirements are in addition to the street tree requirements: a. A 3 foot Ngh ~vall made of any combination of ~vrought iron, masonry, stone or decorative concrete panels. b. A minimum i0 foot ~vide landscape area planted ~vith one large tree for every 40 linear feet. Any establishment in a pedestrian district xvNch has a drive-through use is subject to the folloxving conditions: A. Drive-through uses shall provide sufficient stacking area to ensure that public rights-of-xvay are not obstructed. B. Drive-through uses must be built as an integral arcNtectural element of the primary structure and use. The materials are the same as those used in the primary structure. Drive-through structures and facilities separate from the primary structure are proNbited. C. Drive-through uses must be located to the rear or side of the structure, and buffered on the rear and side lot lines as required in section 35.13.10. ?5:. ~ ~?..2........L.i~h.~...a.n.a...G !a.re?erforma n.ce..Requirem.en.ts,~ ...................................................................................................................................... All lighting xvithin developments other than single family, shall meet the folloxving standards: A. Light may not measure more than one half-foot candle of illumination at the property line. B. Lights shall have sNelds installed to prevent the upxvard diffusion of light. C. Areas designated for pedestrian use shall provide a minimum of one-foot candle of illumination. 35.13.13 Site Development Requirements. 35.13.13.1 Residential Buildings Any residential building that is built on a lot of less than i0,000 square feet or contains t~vo or more dxvelling units shall comply xvith the folloxving standards: A. Buildings shall utilize at least three of the follo~ving design features to provide visu~J relief along the front of the residence: i. Dormers. 2. Gables. 3. Recessed entries, a minimum of three feet (3') deep. 4. Covered front porches. 5. Cupolas. 6. Architectural Pillars or Posts. 7. Bay xvindoxv, a minimum 24" projection. B. The garage door shall not occupy more than 40% of the total building frontage. TNs measurement does not apply to garages facing an alley or courtyard entrance. Any garage may not extend beyond the house front. Front facing garages that are at least 30 feet behind the house front may exceed the 40% frontage minimum. The same elevation may not be used xvitbJn any ten lot groupings as depicted beloxv: Homes that can not be of the same elevation A, B, C... unique elevations D. ,4 & ~ separate lots being reviewed E. Duplex buildings shall be designed to appear as a single unit. F. All xvalls, except gabled roof areas, xvhich face a street other than an alley must contain at least 25% of the xvall space in xvindoxvs or doors. G. Primary entrances shall face the public street and sidexvalk. H. Windoxvs shall be provided xvith trina or shall be recessed. Windoxvs shall not be flush xvith exterior xvall treatment. Windoxvs shall be provided xvith an arcNtectural surround at the jamb. I. Exterior finishes shall be of xvood, masonry, stone, stucco, HDO board or other Ngh quality material customarily used for the building st~qe. J. At least 50% of the front yard frontage sh~Jl have buildings xvitNn the maximum front yard setback. K. Five percent of the land area that is non-constrained open space xvill be designed into a green, plaza, or a combination of planned open space oriented to the neighborhood. 35.13.13.2 Multiple Unit Residential Buildings. Any residential buildings designed for multiple units, either for rental or condominium o~vnersNp and their lots shall comply ~vith the follo~ving standards: A. Orientation. 1. Orientation requirements for all multi unit buildings, except in designated pedestrian zones: a. At least 50% of the front yard frontage sh~Jl have buildings xvitNn 30 feet of the front property line. b. Buildings that are located xvithin 30 feet of property line adjacent to a front yard shall have at least 25% of the xvall facing the street in xvindoxv or door areas. c. Parking areas shall not be located betxveen buildings and the street. Parking lots may be located on the sides and beNnd the buildings. 2. A project greater than 3 acres must contain a public or private street system that creates blocks of three acres or less. Private Streets shall be required to include sidexvalks of at least 5 feet, and include street trees according to the standards of tNs section, but public street setbacks shall not apply. 3. Special Standards for Large Scale Multi Family Developments (~eater than 30 units and/or more than 3 buildings). The same exterior design may not be used for ~eater than 30 units and/or more than 3 buildings in a project. A variety of compatible exterior materials' use and t~Ioe, building sD-les, massing, composition, and prominent arcNtectural features, such as door and xvindoxv openings, porches, rooflines, shall be used. B. Building Materials. i. Windo~vs shall be provided ~vith trim. Windo~vs shall not be flush ~vith exterior ~vall treatment. Windo~vs shall be provided ~vith an arcNtectural surround at the jamb. 2. Fronts and street sides of buildings visible from the public right of ~vay shall be of ~vood, masonry, stone, decorative block, stucco, or HDO board or other Ngh quality material customarily used for the building s~le. 3. Glass. Use of glass for displays and to allo~v visual access to interior space is permitted. Large expanses of unbroken glass surfaces are discouraged. 4. Metal Roog. Met~J roog are permitted provided that they are of arcNtectural quality. B. Open Space. i. An area equal to at least 8% of the lot area, excepting required setbacks, shall be dedicated to open space for recreation for use by the tenants of the development. Mixed-use developments of greater than 35 un/ts per acre shall be exempt from this requirement. 2. Areas covered by shrubs, bark mulch and other ground covers ~vhich do not provide a suitable surface for human use may not be counted to~vard tNs requirement. 3. Private decks, patios, and similar areas are eli~ble for up to 5 percent of the 8 percent required open space. 4. Play areas for cNldren should be provided for projects of greater than 50 un/ts that are not designed as age limited or student housing. 35.13.13.3 Multi Family Developments in a Pedestrian District. Multi-Family developments ~vitNn Pedestrian Areas shall, in addition to compl~Sng to the basic Site Design Standards for Multi-Family buildings, conform to the folloxving standards: A. Orientation. 1. At least 75% of the front yard frontage shall have buildings xvitNn the maximum setback. 2. Buildings that are located xvitNn 30 feet of property line adjacent to a front yard shall have at least 40% of the ~ound story xvall facing the street in xvindoxv or door areas. 3. Parking areas shall not be located between buildings and the street. 4. Buildings shall be directly accessed from the street and the sidexvalk. 5. A minimum of one ground floor pedestrian entrance must be oriented toxvard the street and include a porch. 6. Garages may occupy no more than 40% of the total building frontage. TNs measurement does not apply to garages facing an alley or cour~ard entrance. Any garage may not extend beyond the building front. Garages that are at least 30 feet beNnd the house front may exceed the 40% frontage rain/mum. 7. Building frontages greater than 100 feet in len~h shall have recesses, projections, xvindoxvs, arcades or other distinctive features to interrupt the len~h of the building fagade. 8. Architectur~J Features. Fronts and street sides of buildings visible from the public right of xvay shall include changes in relief such as columns, corn/ces, bases, fenestration, and fluted masonry, for at least 15% of the exterior xvall area. 9. Height and Bulk. Adjacent buildings shall have different elevations. 10. The top floor of any building rising over four stories must contain a distinctive fin/sh, consisting of a corn/ce, banding or other arcNtectural termination. 35.13.13.4 Nonresidential and Mixed Use Buildings. Non-residential buildings or mixed-use buildings and their lots (Those that combine non-residential and residential uses) not in a pedestrian oriented district and their lots shall comply ~vith the follo~ving standards. A. These standards do not apply to uses in the industrial uses ~vhere the building or structure is located: i. Adjacent to a local or collector street. 2. Adjacent to a SecondauT Arterial, the building may have a maximum fifu- percent (50%) metal fagade. 3. In excess of 250 feet of the ultimate right-of-~vay of an arteri~J or interstate roa&vay. 4. Behind another building or structure that screens the building or structure from the adjacent arterial or interstate roa&vay. B. Orientation. i. Building frontages ~eater than i00 feet in length shall have off, ets, jogs, or other distinctive changes in the building fagade. 2. Buildings shall incorporate arcades, roog, alcoves, porticoes and a~vnings as a design element of the fagade. The planting of trees may be used in place of these architectural features. 3. The primaU- entrance of a building or store shall have a clearly defined, highly visible customer entrance ~vith d~stinguishing features such as a canopy, portico or other prominent element of the architectural design. 4. Buildings shall have their primaU- orientation to~vard the street rather than the parking area. 5. Buildings that are ~vithin 30 feet of the street shall have an entrance for pedestrians from the street to the building interior. 6. Trash storage areas, mechanical equipment, and similar areas are not permitted to be visible from the street. 7. Loading docks are not permitted to be visible from the street, and may not be accessed directly from the street. 8. Parking areas shall be located behind buildings or on one or both sides, except along the interstate ~vhere a minimum fifteen foot (i5') addition~J landscape area ~vill be required along parking areas in front of a building. 9. These requirements may be ~vaived by the Director if the building is not accessed by pedestrians, such as ~varehouses and industrial buildings ~vithout attached offices, automotNe service uses such as gasoline sales and automobile sales or the development is on an infill site. B. Building Materials. 1. Windoxvs shah be provided xvith trina. Windoxvs sh~21 not be flush xvith exterior xvall treatment. Windoxvs shah be provided xvith an arch/tectural surround at the jamb. 2. Fronts and street sides of buildings visible from the public right of xvay shah be non- reflective and shah be of xvood, masonry, stone, decorative block, stucco, HDO board or other high quality material customarily used for the building st~qe. 3. Glass. Use of glass for displays and to alloxv visual access to interior space is permitted. Buildings may not incorporate glass for more than 70% of the building skin. 4. Metal Roofs. Metal roofs are permitted provided that they are of arch/tectural quality. 35.13.13.5 Nonresidential and Mixed Use Buildings in a Pedestrian Oriented District. Design standards non-residential buildings or mixed-use buildings (Those that combine non-residential and residential uses) in a pedestrian oriented district and their lots. A. Orientation. 1. Buildings shall have their primauT orientation to~vard the street rather than the parking area. The primauT entrance must be readily apparent as a prominent architectural component and visible from the street. 2. Any ground floor ~vall ~vhich is ~vithin 30 feet of the main street, plaza or other public open space shall contain at least 50% of the ~vall area facing the street in display areas, ~vindo~vs, or door~vays. Windo~vs must allo~v vie~vs into ~vorking areas or lobbies, pedestrian entrances or display areas. Walls facing side streets must contain at least 25% of the ~vall space in ~vindo~vs, display areas, or doors. Blank ~valls ~vithin 30 feet of the street are prohibited. Up to 40% of the len~h of the building perimeter can be exempted from this standard if oriented to~vard loading or service area 3. At least 60% of the street frontage shall have buildings ~vithin 10 feet of the front property line. 4. Trash storage areas, mechanical equipment, and similar areas are not permitted to be visible from the street, or and are not permitted bet~veen the building and the street. 5. Buildings that are open to the public and are ~vithin 30 feet of the street shall have an entrance for pedestrians from the street to the building interior. This entrance shall be designed to be attractive and functional, be a distinctive and prominent element of the architectural design, and shall be open to the public during all business hours. 6. Developments shall have a minimum Floor Area Ratio of 0.4. Plazas and pedestrian areas shall count as floor area for the purpose of meeting the minimum floor area ratio. 7. Buildings shall incorporate lighting and changes in mass, surface or finish to ~ve emphasis to entrances. 8. The top floor of any building rising over four stories ~vill be contain a distinctive finish, consisting of a cornice or other architectural termination. subject to an 9. Building Scale. Balconies may project over the public right of ~vay, encroachment agreement issued by the City. 10. Parking areas shall be located behind buildings or on one or both sides. Building Materials. 1. Windo~vs shall be provided ~vith trim. Windo~vs sh~Jl not be flush ~vith exterior ~vall treatment. Windo~vs shall be provided ~vith an architectural surround at the jamb. 2. Fronts and street sides of buildings visible from the public right of ~vay shall be non- reflective and shall be of ~vood, masonu-, stone, decorative block, stucco, HDO board or other high quality material customarily used for the building st~qe. 3. Glass. Use of glass for displays and to allo~v visual access to interior space is permitted. Buildings may not incorporate glass for more than 70% of the building skin. 4. Metal Roog. Metal roog are permitted provided that they are of architectural quality. 5. Buildings shall include changes in relief such as columns, cornices, bases, fenestration, and fluted masonu-, for at least 15% of the exterior ~vall area. Streetscape. 1. Hardscape (paving material) shall be utilized to designate "people" areas. Sample materials could be pavers, scored and colored concrete, grasscrete, or combinations of the above. 2. A building shall be setback not more than 15 feet from the right-of-~vay unless the area is used for pedestrian activities such as plazas or outside eating areas. 3. Outdoor storage areas shall be screened from vie~v from adjacent public rights-of-way. Loading facilities shall be screened and buffered ~vhen adjacent to residentially zoned land and public streets. 35.13.13.6 Large Scale Development Regulations. Developments invoMng a gross floor area in excess of 40,000 square feet and located in a Neighborhood, Community or Regional M/xed Use Center Districts, or in the Doxvntoxvn University Core District sh~Jl, comply xvith the basic Site Design Standards and conform to the folloxving standards: Standards and Guidelines: Standards and guidelines set out beloxv require a basic level of arcNtectural variety, compatible scale, and mitigation of negative impacts. "Guidelines" are not mandatory, but are provided in order to educate planners, design consultants, developers and City staff' about design objectives. "Standards" are mandatory. A. Orientation. 1. Architectural features: a. Guidelines: Facades should be articulated to reduce the massive scale and the uniform, impersonal appearances of large retail building and provide visual interest. b. Standards: Architectural features on building facades that are visible from adjoining properties and/or public street (excluding facades residential property that are screen by an eight-foot masonry xvall and facades facing the side or rear of property zoned and used for commercial purposes or industrial purposes) shall address the visual impact of long uninterrupted walls by providing a minimum of three of the following elements. No uninterrupted length of any fagade shall exceed i00 feet. See illustrations of architectural features in the Site Design Criteria Manual. i Variation in color and materials; ii Wall plane projections or recesses having a depth of at least 3% of the len~h of the fagade and extending at least 20 % of the length of the fagade, not to exceed i00 feet; Variation of a minimum of rvvo feet in the height of parapets. Variation to parapet height may include pilasters and projected raised entrance features; iv Pilasters projecting from the plane of the xvall by a minimum of i6 inches. The use of pilasters to interrupt horizontal patterns such as accent banding is encourages; v Canopies projecting a minimum of i0 feet from the plane of the primary fagade xvalls; and vi Repetitive ornamentation including decorative applied features such as xvall- mounted light fixtures or applied materials. Repetitive ornamentation shall be located xvith a maximum spacing of 50 feet. Sidewalk display and cart storage. "Sidexvalk" display is a term commonly used in the retail industry to describe display areas along the front of a building. NotNng herein permits storage, display or sale of any item on property that has been dedicated for public use. Sidexvalk display and cart storage in the sidexvalk display area are proNbited: a. Areas for customer loading of merchandise shall be clearly delineated and shall not be located in front of any customer entrances or exit door(s) or xvitNn i5 feet on either side of the door(s). b. TNs section does not proNbit storage of carts in the parking lot, but merely regulates storage of carts in the side~valk display area. 3. Permanent outdoor display, sales and storage. Merchandise may be stored or displayed for sale to customers on the front or side of the building in accordance with this paragraph. a. The total square footage of all permanent outdoor storage, display and sales areas shall be limited to 10% of the footprint of the building, but in no event shall exceed 15,000 square feet. b. Permanent outdoor storage, display and sales shall be contiguous to the building and shall not be permitted xvitNn i00 feet of residential property. c. The permanent storage, display and sales area shall be enclosed by a minimum eight- foot xvall of like appearance to the building topped by xvrought iron or tubular steel fencing. No merchandise other than trees shall be visible above the xvall or fence. 4. Seasonal outdoor display and sales. Christmas trees may be displayed for sale from November i5 to December 3i. In addition, bedding plants, trees, shrubs, potting soil and bagged yard products including xvithout limitation bark, mulch, peat moss and play sand may be displayed from March i5 to June i5. Fertilizer or other chemical products shall not be stored or displayed outdoors. The seasonal outdoor sales area shall be limited to 5% of the footprint of the building but in no event shall exceed 6,000 square feet. No merchandise may exceed five feet in height, except Christmas trees. 5. Rear storage. Bulk merchandise may be stored behind the building. The sides and back of the storage area shall be screened xvith a chain link fence covered xvith xvindscreen, except for any side or back that is separated from any residential property by an eight-foot masonry xvall and landscaped bufferyard. Windscreen shall be maintained in good repair and free of tears. The rear storage area shall not be accessible to customers. Merchandise shall be stacked no Ngher than 25-feet or level xvith the top of the adjacent side xvall of the builchng, xvNchever is loxver, and may not be stacked above the height of the chain link fence. 6. Wall and landscaped bufferyard. An eight-foot masonry xv~Jl of brick, stone, split block or concrete cast to simulated such materials shall be constructed along the common boundary line of the adjacent residential property, or as close as practicable in the event of intervening alleys, easements and drainage channels. If the large retail store property and residential property are separated by intervening property under separate oxvnersNp that is less than 20 feet xvide, a xvall shall be constructed along the property line of the large retail store facing the residential property. 7. Pickup and Delivery. Outdoor storage, pickup, delivery, loading and unloading of merchandise, equipment or other items may not occur xvitNn i00 feet of residential property. Loading docks must be located to the side or rear of the builchng unless the loading area is completely screened from the street, and loachng docks shall be located more than i00 feet from residential property. 8. Trash Collection and Compaction. Trash collection and compaction may not occur xvitNn i00 feet of residential property and shall be screened from public viexv. 9. Mechanical equipment. No mechanical equipment may be located xvithin i00 feet of residential property. Mechanical equipment shall be screened from public viexv. Buildings Materials. i. Guidelines: Exterior building materials and colors comprise a significant part of the visual impact of a building. Therefore, they should be aesthetically pleasing and compatible xvith materials and colors used in the surrounding area. 2. Standards: 3. Materials. Fronts and street sides of buildings visible from the public right of xvay shall be non-reflective and shall be of xvood, masonry, stone, decorative block, stucco, HDO board or other Ngh quality material customarily used for the building st~qe. Streetscape. Public Spaces. a. ()ne square foot of plaza or public space shall be required for every i0 square feet of gross ground floor area. b. Plazas or public spaces sh~Jl incorporate at least 3 of the 5 follo~ving elements: i Sitting space - at least one sitting space for each 250 square feet shall be included in the plaza. Seating shall be a minimum of i6 inches in height and 30 inches in ~vidth. Ledge benches shall have a minimum depth of 30 inches. ii A mixture of areas that provide shade. iii Trees in proportion to the space at a minimum of i tree per 800 square feet. iv Water features or public art. v Outdoor eating areas or food vendors. Attachment C Subchapter 23 - Definitions Sections: 35.23.i General. 35.23.2 Definitions and Terms. 35.23.1 General For the purpose of this Chapter, certain xvords and terms shall be defined and interpreted as folloxvs. Interpretations of meaning shall be made by the Director of Planning and Development based on the provisions of Section 35.i.4. Appeals of staff' interpretations of this Chapter shall be heard as a Board of Adjustment Procedure. 35.23.2 Definitions and Terms. Acceleration/Deceleration Lane: ()ne or more paved traffic lanes traversing the frontage of a property for the purpose of ~Jloxving traffic to accelerate or decelerate outside of higher speed traffic lanes. Accepted for Filing: The status of an application folloxving submission and acceptance as complete by the Director of all application materials, documents, and fees, and required signatures required by this Chapter. Access Ramp: A route to provide entry for vehicles and macNnery into a drainage system. Access Road: A route parallel to and at the top of the bank or channel to alloxv maintenance access of channels from the top. Accessory Building or Structure: A structure on the same lot xvith, and of a size and nature customarily incidental and subordinate to, the principal structure. Examples of accessory structures include, but are not limited to, the folloxving: detached garages and/or carports; storage structures and/or barns; freestanding greenhouses; sxvimming pools and pool houses; tennis courts; satellite dish antennas; freestanding xvorkshops; gazebos; racho and/or TV antenna structures not attached to the principal structure; paved areas other than drive~vays and ~valk~vays; and perimeter fencing and/or ~valls. Accessory Use: A use incidental or secondary to the principal use of a lot, building or structure and located on the same lot as the principal use. Acreage, Net: The gross acreage of a parcel excluding any floodxvay. Acreage, Gross: The acreage included xvitNn the boundary line of a particular property, including all property legally held by the oxvner, unless said property has dedicated right-of-xvay previous to development to the City, county, state or federal entity. Addition: Lots, tracts or parcels of land 1)Sng xvitNn the corporate boundaries of the City xvNch is intended for the purpose of development. Administrative or Research Facilities: A facility used for the management of an enterprise or research and development actMties such as improving technologies, developing products and scientific research. Adtflt Arcade: Any place to xvNch the public is permitted or invited xvherein coin-operated or slug- operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to shoxv images to five or fexver persons per macNne at any one time, and xvhere the images so displayed are distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." Adult Bookstore/Adult Video Store: A. A commercial establishment xvhich as one of its principal business purposes offers for sale or rental for any form of consideration any one or more of the folloxving: 1. Books, magazines, periodicals or other printed matter, or photo-~oraphs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas': or 2. Instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities". B. For the purpose of this definition, a commercial establishment shall be considered to have as "one of its principal business purposes" the sale or rental of the materials described in (A) above, iff 1. The establishment makes use of a simon visible from any public street, whether located on or off the property of the establishment, advertising the availability at the establishment of any materials described in (A); 2. The establishment devotes more than thirty percent (30%) of its total floor area which is open to the public to the display of items for sale or rental that are materials described in (A); 3. More than thirD- percent (30%) of the total number of items displayed for sale or rental by the establishment are materials described in (A); or 4. The establishment regularly maintains on the property for sale or rental materials described in (A) xvhole total retail value is more than fifty percent (50%) of the total retail v~Jue of all materials kept on the premises for sale or rental. Adtflt Cabaret: A aightclub, bar, restaurant, or similar commercial establishment xvhich regularly features: A. Persons xvho appear in a state of nudity; or B. Live performances xvNch are distinguished or characterized by an emphasis on "specified sexual activities" or the exposure of "specified anatomical areas"; or C. Films, motion pictures, video cassettes, slides, or other photo~aphic reproductions xvNch are distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." Adtflt Motel: A hotel, motel, or similar commercial establishment xvNch: A. Offers accommodations to the public for any form of consideration; provides patrons xvith closed-circuit television transmissions, trims, motion pictures, video cassettes, slides, or other photograpNc reproductions xvhich are chstinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas"; and has a sign visible from the public right-of-xvay xvhich advertises the availability of tNs adult ~pe of photograpNc reproductions; or B. Offers a sleeping room for rent for a period of time that is less than i0 hours; or C. Alloxvs a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than i0 hours. Adtflt Motion Picture Theater: A commercial establishment xvhere, for any form of consideration, trims, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shoxvn xvNch are distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." Adtflt Theater: A theater, concert hall, auditorium, or similar commercial establishment xvNch regularly features persons xvho appear in a state of nudity or live performances xvNch are distinguished or characterized by an emphasis on "specified sexual activities" or the exposure of "specified anatomical areas." Agrictfltural Activity: Land used exclusively as a bonafide agricultural operation by the oxvner or tenant. The use of land for agricultural purposes including farming, horticulture, aaimal and poultry husbandry, and the necessary accessory uses, provided that the operation of the accessory use is clearly incidental to the a~icultural activity. An accessory use shall include incidental sales by the producer of products raised on the farm. Airspace Obstruction: Any structure, tree, land mass, or use of land ~vhich penetrates a transitional, horizont~J, or conical surface of an airport, airport approach, or airport overlay as defined by this Chapter and/or regulations of the Federal Aviation Administration. Alley: A public ~vay ~vhich affbrds a secondary means of access to abutting property and ~vhich is not intended for general travel or circulation. Antenna, Directional: Any antenna ~vhich incorporates a reflective surface that is designed to transmit or receive micro~vave signals from terrestrial or orbitally based uses. Apartment, Studio or Efficiency: ()ne room ~vhich is designed or intended for occupancy by, or ~vhich is occupied by, one family doing its cooking therein or by one or more related persons doing their or their o~vn cooking therein. For zoning purposes, a studio or efficiency apartment shall be regarded as a d~vellJng unit and a structure containing three or more such apartments shall be regarded as a multiple d~vellJng. Arcade: Any commercial building in ~vhich there are more than three amusement game machines on the premises ~vhich are available to the public. An arcade may contain commercial recreational machines or games other than amusement game machines. Arcades are restricted in use bet~veen the hours of i0 A.M. and i0 P.M. Sunday through Thursday and i0 A.M. and i2 P.M. Friday through Saturday and are further restricted from serving alcoholic beverages, except in the case ~vhere the use is primarily for adults and all minors are accompanied by an adult. Architectural Element: Authentic architectural projections and details. Architectural Projection: Eaves, decorative extensions, bay ~vindo~vs having no floor space, or other portions of a structure having no living space nor key structural value. Assisted Living Facility: An establishment that: A. Furnishes, in one or more facilities, food and shelter to four or more persons ~vho are unrelated to the proprietor of the establishment; and B. Provides personal care services. Attached Single-family: See "D~velling, Single-family Attached." Automobile and RV Sales: A structure and/or lot dedicated to the retail sale of ne~v or used motor vehicles. Automotive Wrecking and Salvage Yard: A business that stores three or more ~vrecked vehicles outdoors for the purpose of selling the vehicles ~vhole; or dismantling or other~vise ~vrecking the vehicles to remove parts for sale or for use in an automotive repair or rebuilding business. Backhaul Provider: the o~vner of a ~vire net~vork (i.e. the cable, electric, or telephone company) utilized in connecting the various cell sites to telephone s~vitching offices, long distance providers or the public s~vitched telephone net~vork. Bakery: A place for baking or selling baked goods. Base Density: The density allo~ved in the parent zoning district per gross acre. Base Flood: A flood having a one (i) percent chance of being equaled or exceeded in any given year based on a fully developed ~vatershed. Also kno~vn as the one hundred-year flood. Basement: A building story partially or completely underground. A basement shall be counted as a story in computing building height ~vhere any portion of a basement has more than one-half of its height above grade. Basic Utilities: Infrastructure services and the structures necessary to provide those services including electricity, natural gas, telephone, telecommunications, ~vater, or server. Bed and Breakfast Facilities: A detached d~velling in ~vhich rooms are rented and meals may be served to transient guests on an overnight basis. Bedroom: Any room other than a living room, family room, diaing room, kitchen, bathroom, closets, or utility room, for the purpose of this Code, shall be considered a bedroom. Dens, studies, etc. with or without closets and similar areas, which may be used as bedrooms sh~Jl be counted as bedrooms for the purposes of this Chapter. Block: The land surrounded by streets and other right-of-way other than an alley, or land which is designated as a block on any recorded subdivision map. Board of Adjustment/Board: The Board of Adiustment of the City of Denton, Texas. Boarding or Roominghouse: A dwelling in which meals and lodging or iust lod~ng are furnished for compensation to more than four but fewer than 20 persons. Provision for meals may be made, provided cooking is done in a central kitchen and not in individual rooms or suites. Broadcasting or Production Studios: A structure designed for making and transmitting programs for radio or television or for the production/editing of films, videos, commercials, etc. Buildable Area: The portion of a lot remaining and available for construction of a structure or related facilities after required yards and buffers have been provided. Buildable area cannot contain any setback areas, easements, and similar building restrictions, and cannot contain any land that is identified as Floodplain Areas, or Environmentally Sensitive Areas, except as other~vise provided in this Chapter. Building: Any permanent structure designed, used, or intended to be used for human occupancy or use or to support the human occupancy or use of land, including manufactured homes. Building Envelope: An area xvithin the property boundaries of a lot or space xvithin xvhich a permitted structure can be placed. Building Line: A line established beyond xvhich no part of a building shall project, except as other~vise provided in this Chapter. Building Official: The official appointed by the Director of Planning and Development and charged xvith the enforcement of this Chapter and responsibility of approving building permits and certificates of occupancy. Building Permit: A document signed by the Building Official or their authorized representative as a condition precedent to the commencement of a use or the erection, construction, reconstruction, restoration, repair, remodeling, rehabilitation, alteration, conversion, demolition, moving, installment, or portion of a structure or building, xvhich acknoxvledges that such use or building complies xvith the provisions of this Chapter or an authorized variance or Specific Use Pemait there from. Building, Principle: A building in xvhich the primary use of the lot on xvhich the building is located is conducted. Business or Trade School: A secondary school offering instruction in a professional, vocational, or technical field. Business Sign: An identification sign containing the name of the business or other accessory information located on the same premises. Caliper: A horticultural method of measuring the diameter of nursery stock groxvn for the purpose of planting in another location. For trees less than four inches in diameter, the measurement is taken at six inches above ground level. For trees four inches in diameter and up to and including txvelve inches in diameter, the caliper measurement is taken txveNe inches above ~ound level. For trees greater than txvelve inches in diameter, the trunk is measured at breast height (DBH). Caretaker Quarters: A dxvelling unit xvhich houses an individual or family xvho is employed by the primary user of the property to guard and protect the property and structure(s) from fire, vandalism, theft, etc. Such structure is not to be used for dxvelling purposes other than as a caretaker unit. Carport: A partially enclosed structure used for the housing of motor vehicles, the property of, and for use only by the occupants of the lot upon xvhich such structure is located. For purposes of zoning, a carport attached to a principal structure shall be regarded as part of that princip~2 structure and not as an accessory structure. A detached carport shall be classified as an accessory structure. Certificate of Occupancy: Certificate issued by the Building Official for the use of a building, structure or land, ~vhen it is determined by the Building Official that the building, structure or proposed land use complies ~vith the provisions of all applicable Codes of the City of Denton. Channel: An open conduit in ~vhich ~vater flo~vs ~vith a free surface. Child-Care Facility: A facility licensed, certified, or re~stered by the State of Texas to provide assessment, care, training, education, custody, treatment, or supervision for a child ~vho is not related by blood, marriage, or adoption to the o~vner or operator of the facility, for all or part of the 24-hour daFT, ~vhether or not the facility is operated for profit or charges for the services it offers. The follo~ving are child-care facilities: A. "Child-care institution" means a child-care facility that provides care for more than 12 children for 24 hours a daFT, including facilities kno~vn as children's homes, half~vay houses, residential treatment centers, emergency shelters, and therapeutic camps. B. "Foster group home" means a child-care facility that provides care for 7 to 12 children for 24 hours a daFT. C. "Foster home" means a child-care facility that provides care for not more than six children for 24 hours a daFT. D. "Day-care center" means a child-care facility that provides care for more than 12 children under 14 years of age for less than 24 hours a daFT. E. "Group day-care home" means a child-care facility that provides care for 7 to 12 children under 14 years of age for less than 24 hours a daFT. F. "Fan~ly home" means a home that provides regular care in the caretaker's o~vn residence for not more than six children under 14 years of age, excluding children ~vho are related to the caretaker, and that provides care after school hours for not more than six additional elementauT school children, but the total number of children, including children ~vho are related to the caretaker, does not exceed 12 at any ~ven time. The term does not include a home that provides care exclusively for any number of children ~vho are related to the caretaker. Church: A structure o~vned and/or used by a religious organization or congregation and providing regular organized religious ~vorship, religious training, or education of it members; rectouT or convent; meeting hall, offices for administration of the institution; and, excluding buildings used exclusively for private education or school, dormitories for students, recreation associated ~vith a school, daFT care facilities, arenas or production studios. A house of ~vorship may include the follo~ving accessouT use in addition to the principal structure: d~velling units for religious organization personnel located ~vithin an accessouT structure(s). City: The City of Denton, Denton County, Texas, and its extraterritorial jurisdiction. City Council: The City Council of the City of Denton, Texas. City Facility: A public service or facility provided, o~vned and controlled by the City. Clear Cutting: The removal of all of the trees or a significant majority of the trees ~vithin an area. Clearing: An intentional act to cut do~vn, remove all or a substantial part of, or damage a tree or other vegetation, that ~vill cause the tree or other vegetation to decline or die. Clearing includes, but is not limited to: chemical, physical, compaction, or grading damage to trees and vegetation. Clearing and Grading, Limits of: The boundaries of that area of land identified in the clearing and grading plan, site plan or landscape plan subject to soil disturbance, clearing of trees and other vegetation in conjunction ~vith a proposed development or land use. Cluster Subdivision/Development: A ~ouping of individual building lots or sites in close proximity, each of ~vhich or the majority of ~vhich has less land than required for isolated individual lots, ~vith the additional areas being devoted to open space, conservation area, recreation space, parking spaces and access facilities, in addition to required yards. Clustering: The concentrating of units or floor area ratio in the buildable area(s). College or University: An institution of higher learning providing facilities for teacNng and research and authorized to ~ant academic degrees. Commercial Incinerator: Establishments primarily engaged in the collection and disposal of refuse by processing or destruction for profit. Examples xvould be furnaces or similar devices for the burning to ash of trash or bodies. Commercial Parking Lots: An area devoted to the standing, maneuvering, and circulation of motor veNcles in commercial areas. Commission: The Planning and Zoning Commission of the City of Denton, Texas. Committee: The Development Reviexv Committee (DRC). Common Access Route/Internal Street: Private drive alloxving principal means of access to individu~J HUD-Code Manufactured Home Park lots or auxiliary builchngs. Community Center: A building used as a place of meeting, recreation, or social acdvity and not operated for profit and xvNch neither alcoholic beverages or meals are normally dispensed or consumed, and ~pically for use by the residents of a particular development or the community. Community Home for Disabled Persons: A community-based residential home containing not more than 6 disabled persons xvith 2 supervisory personnel xvNch meets the requirements of the Community Homes for the Disabled Persons Location Act, Tex. Hum. Res. Code Chapter i23.00i, et seq. (Vernon 1990), as anaended. Community Service: A structure or group of structures for a community's governmental, social, education~J, and/or recreational acdvities. Community Service facilities include federal, state, county, and local government activities. Comprehensive Plan: The Denton Plan, the Comprehensive Plan of the City of Denton, Texas as adopted by the City Council. The Comprehensive Plan shall consist of a Land Use Plan, a Mobility Plan, a Water System Plan, a Sanitary Sexver Plan, a Storm Drainage Plan, a Parks and Recreation Plan, and such other plans as may be adopted by the City. Condominium: A t~pe of oxvnersNp of attached or detached dxvelling units, offices, or other space xvitNn a structure, as defined by the provision of Tide 7, Chapter 82 Uniform Condominium Act of the Texas Property Code in xvNch each unit is independently oxvned and financed by the occupant but in xvNch all lands are commonly oxvned. Conduit: Any open or closed device for conve55ng floxving xvater. Conservation Easement: A nonpossessory interest held by a governmental body empoxvered to hold an interest in real property under the laxvs of tNs state or the United States; other qualified entity, pursuant to Section lT0(h) of the Internal Revenue Code, as anaended; or a charitable corporation, charitable association, or charitable trust in real properiT that imposes limitations or affirmadve obligations desi~oned tO: A. Retain or protect natural, scenic, or open-space values of real property or assure its availability for agricultural, forest, recreational, or open-space use; B. Protect natural resources; C. Maintain or enhance air or water quality; or D. Preserve the historical, architectural, archeological, or cultural aspects of real property. Construction Materials Sales: A business involved in the sale of structure supplies and services including lumber, pl}xvood, dr}xvall, siding, windows, molding, cabinets, insulation, etc. Conveyance Plat: An interina plat recording the subdMsion of property or defining a remainder of property created by the approval of a fin~J plat for sole purpose of conveying land and not for development for a portion of property, where approval of final development plans is not sought. Copy Center: A faciliuT for the custom reproduction of ~vritten or ~aphic materials for individuals of businesses. Typical processes include, but are not limited to, photocopFSng, small off, et printing, blueprint, and facsin~le sending and receixdng. Corner Lot: See "Lot, Corner." Coverage, Lot or Site: Total area of aH structures, paved drive~vays, or other soil disturbances that ~vH1 not ~Jlo~v normal ~vater infiltration. The coverage is expressed as a percentage of such area in relation to the total ~oss area of the lot or site. Landscaping shall not be deemed part of the lot or site coverage. Criteria Manual: A manual pertai~ng to the technical and design requirements of this Chapter. Critical Root Zone (C~): The area of undisturbed natural soil around a tree defined by a concentric circle ~vith a radius equal to the distance from the trunk to the outermost portion of the drip Hne but not less than one foot radius for each one inch dbh. Critica! ~+ ~ .... ~ ~; .... ~ .... ~ ............ ~ ......... ~ dbh: Diameter at breast height (dbh) is the tree trunk diameter measured in inches at a height of four and one-half (4 %) feet above e~sfing ground level. For single-trunk trees, the ~vidth sh~ll be measured at four and one-half feet (4 % ') above ground level. For m~fi-tmnk trees, combine the diameter of largest stem or trunk ~vith one-half of the diameter of each additional stem or trunk, all measured at four and one-half feet (4 % ') above ground level. Day Care, Adtflt: A faci~U- pro~qding care for the elderly and/or functionally impaired ad,ts in a protective setting for a portion of a 24-hour day. The fac~iU- pro~qdes senqces under an ad~t day-care pro,am on a daily or reg~ar basis but not over~ght to four or more elderly or handicapped persons ~vho are not related by blood, marriage, or adoption to the o~vner of the faciliu-. Decibel (dB): The physical unit commo~y used to measure noise levels; the unit of level such as the sound pressure level. Deed Restrictions/Private Covenants: Private stip~afions usually pertai~ng to residential subdi~qsions ~vNch govern lot size, n~mum floor area, uses pern~tted and, in some instances, architectural design. These may be stricter than pro~qsions included in tNs Chapter. Demolition Business: A business that demolishes structures, including houses and other b~ldings, in order to salvage b~lding materials and that stores those materials before disposing of them. Demolition: The dismantling, razing or neglect of a~ or any part of any structure. Dense Evergreen Foliage: A large quantiU- of vegetation per u~t of area that retains its leaves throughout the year and of such opaciU- as to block one's vision through it. Density: The quanfiU- of an item per unit area; for example, the number of d~vel~ng u~ts per gross area. Density, Base: The ma~mum number of d~vel~ng u~ts per gross acreage or the ma~mum floor area pern~tted outright by a particular land-use classification. Density, Gross: The total number of d~ve~ing u~ts divided by the total project area acreage, expressed as gross d~ve~ing u~ts per acre, or the calc~afion of ~vhich is othe~vise defined by tNs Chapter. Density, Net: The tot~l number of d~vel~ng u~ts di~qded by the net project area acreage, expressed as net d~vel~ng u~ts per acre. In detern~ng net densiU- ~vithin the development boundaries, including: all land area associated ~vith and accessoU- to the d~vel~ng u~t, including private and pubic streets, dfive~vays, offistreet paring, public and private recreational facilities, common open space, ut~iU- easements, and en~qronmentally sensitive areas. Exclusions from net densiU- calc~afions include: nonresidential structures and land uses, accessoU- d~vel~ng u~ts, the flood~vay and any ~vaters of the U.S. and any other exclusions as identified by tNs Chapter. Department: The Planning and Development Department of the CiU-. Detention: Thc storage of storm runoff for a controlled release during or immediately following thc desi~on storm. Regional detention refers to storage of storm runoff from an entire drainage area or basin. Developed Floodplains: Any area defined as a floodplain wkhin the FE~LA 100-year floodplain. These areas have ~pically been channdized or the land wkhin these areas has been gaded, filled, or otherwise disturbed. Developer: The legal or beneficial owner or owners of a lot or any land proposed to be included in a proposed development including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land. Development: Any man-made change to improved or unimproved real estate, including but not limked to, buildings or other structures, paving, drainage or utilities. Development activities include: subdivision of land; construction or alteration of structures, roads, parking, fences, pools, signs, temporary uses, utilities, and other facilities; installation of septic systems; gading; excavation, mining or drilling operations; deposit of refuse, debris, or G1 materials; and clearing of natural vegetative cover (wkh the exception of agicultur~J activities as defined and as permitted). Routine repair and maintenance activities are exempted. Development Exaction: Any dedication of land or easements for, construction of, or monetary contribution toxvard construction of a public improvement required as a condition of plat approval by the Cig-. Development Plan: The plan for the subdivision of any lot, tract or parcel of land that is not to be recorded of record, but is a proposed division of land for review and study by the CigT. Development Plat: A plat reflecting ne;v construction or the enlargement of any exterior dimension of any building, structure, or improvement on property previously final platted or not required to be platted. Diameter Breast Height (DBH): The outside diameter of the trunk of a tree, measured four and one- half (4 1/2) feet above ground level. If a tree splits into multiple trunks beloxv the 4 ½ feet level, DBH xvill be defined as the sum of each indMdual trunk measured at 4 ½ feet above ~ound level, or the single trunk at its most narroxv dimension, xvhichever is ~eater. Directional Antenna: Any antenna xvNch incorporates a reflective surface that is designed to transmit or receive microxvave signals from terrestrial or orbitally bases uses. Director of Planning and Development/Director: The person designed to receive and process plats, site plans, amendments to this Chapter, the zoaing map, or the Comprehensive Plan. Disabled Persons: Persons xvhose ability to care for himself, perform manual tasks, learn, xvork, xvalk, see, hear, speak or breathe is substantially limited because the person has: A. Orthopedic, visual, speech, or G. Multiple sclerosis; hearing impairments; H. Cancer; B. Alzheimer's disease; I. Heart disease; C. Pre-seaile dementia; J. Diabetes; D. Cerebral palsy; K. Mental retardation; E. Epilepsy; L. Autism; or F. Muscular dystrophy; M. Emotional illness Disc Antenna: A device incorporating a reflective surface that is solid, open mesh, or bar configured and is the shape of a shalloxv dish, cone, horn, or cornucopia. Such devices may be used to transmit or receive radio or electromagnetic xvaves betxveen terrestrially or orbitally based uses. This definition includes, but is not limited to, satellite earth stations and microxvave antennas. Distribution Center: A use xvhere goods are received and/or stored for delivery to the ultimate customer at remote locations. District: An area, region, or section with a distinguishing character, or the regulations governing the height, area, use and design of the land and buildings. Disturbed Area: An area of land subjected to erosion due to the removal of vegetative cover and/or earthmoving activities, including but not limited to filling. Dormitory: A structure occupied or desi~oned to be occupied by at least 50 students or residents of a boarding school, college, university, or similar institution, with sleeping accommodations, common gathering rooms, and may include group cooking and dining facilities designed to service the entire residency of the dorm or dormitory complex. Double Frontage Lot: See "Lot, Double Frontage." Drainage Area/Basin: The land area upon which all rainfall that falls on that area is directed towards or flows to a given point or stream. Drainage Facilities/Systems: Physical provisions to accommodate and regulate stormwater runoff to preclude excessive erosion and sedimentation and to control and regulate the rate of flow. Facilities/systems can include natural features and conduits, channels, ditches, swales, pipes, detention devices or other devices desi~oned or intended to carry, direct, detain or otherwise control stormwater. Drip Line: A vertical line run through the outermost portion of the canopy of a tree and extended to the ground. ' ' · ' ' ' Drive-Through Use: A facility or structure that is designed to allow drivers to remain in their vehicles beGre and during an activity on the site. Drive-through facilities are a t)loe of site development that is usually found in conjunction with a quick vehicle servicing use or other retail sales and service use. Examples include, but are not limited to, drive-through windows, menu boards, gas pump islands, car wash facilities, and quick lube or quick oil change facilities. Driving Surface: A paved access capable of supporting up to 44,000 lbs. ~oss vehicle weight. Surface to be of minimum width as required by this Chapter. Width shall be increased on turns where necessary to ensure fire apparatus remain on a paved surface during travel. Duplex: See "Dwelling, Duplex." Dwelling: A structure or portion which is designed or used exclusively for residential purposes, including single-family, two-family, attached dwellings, multifamily dwellings, rooming and boardinghouses, fraternities, sororities, dormitories, manufactured homes, and modular dwellings, but not including hotels or motels. Dwelling, Accessory: A detached or attached residential unit, other than a manufactured home, designed for and occupied by one family only. The structure shall be accessory to a single-family dwelling (see definition of "Dwelling, Single-Family") and conform to the standards outlined in this Chapter. Accessory dwellings shall not be calculated in net or gross density calculations for a lot, parcel or development. Dwelling, Duplex: A detached residential structure containing two dwelling units, desi~oned for occupancy by not more than two families living independent of each other. Dwelling, HUD-Code Manufactured Home: A structure constructed on or after June 15, 1976, according to the roles of the United States Department of Housing and Urban Development, transportable in one or more sections, which, in the traveling mode, is eight (8) body feet or more in width, or fort)- (40) body feet or more in len~h, or, when erected on site, is three hundred twenty (320) or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning and electrical systems. The term does not include a recreational vehicle as that term is defined by 24 C.F.1L Section 3282.8(g). Dwelling, Mobile Home: A structure that was constructed before June 15, 1976, transportable in one (1) or more sections which, in the traveling mode, is eight (8) body feet or more in width or fort)- (40) body feet or more in len~h or, xvhen erected on site, is three hundred txventy (320) or more square feet and xvhich is built on a permanent chassis and designed to be used as a dxvelling xvith or xvithout a permanent foundation xvhen connected to the required utilities and includes the plumbing, heating, air conditioning and electrical systems. Dwelling, Mtflti-Family: A structure or portion designed for three or more dxvelling units or for occupancy by members of a fraternity or sorority, or by three or more boarders or roomers. Dwelling, Single-Family: A detached residential unit other than a manufactured home, hotel or motel, designed for and occupied by one family only. Dwelling, Single-Family Attached: A structure consisting of three or more single-family units, in xvhich each unit extends from the foundation to the roof xvith open space on at least txvo sides. Dwelling Unit: A single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. Easement: A grant of the right to use a strip of land for specific purposes. Easement, Access: An easement created for the purpose of providing vehicular, pedestrian, or bicycling access to or betxveen properties. Easement, Maintenance: An area of a parcel of land free of structures reserved to an adjacent parcel of land to allo~v access to repair and maintain a structure, facility, or conservation area located on the adjacent parcel. Ecological Impact:: A modification or change in the existing natural environment that could result in the disruption or loss of xvildlife habitat, vegetation, air quality, soil and xvater quality, and resources, or an increase in ambient noise levels. Ecosystem: An interacting system formed by a biotic community and its physical environment. Effluent: Sexvage xvater or other liquid, partially or completely treated or in its natural state, floxving out of any component of an individual sexvage disposal system or floxving over the ground's surface or beneath the ground in groundxvater. Elderly Housing: A structure, controlled by either a public body, institutional body, or nonprofit corporation, eighty percent of xvhose occupants are 55 years of age and over; or, a structure xvhere each unit is occupied by at least one person, and xvhere the living arrangement/a~eement requires that all members of each household consume at least one meal per day in a congregate dining facility, or is served directly to the persons of that household. Elderly Housing, Assisted Living: Services in these establishments include assistance xvith daily activities, such as dressing, ~ooming, bathing, etc. Elderly Housing, Congregate Care Facility: A facility for long-term residence generally for persons 55 years of age or older, and xvhich shall include, xvithout limitation, common dining, social and recreational features, special safety and convenience features designed for the needs of the elderly, such as emergency call systems, grab bars and handrails, special door hardxvare, cabinets, appliances, passagexvays, and door~vays designed to accommodate xvheelchairs, and the provision of social services for residents xvhich sh~Jl include at least txvo of the folloxving: meals services, transportation, housekeeping, linen, and organized social activities. Elderly Housing, Nursing Home: A home for the aged, chronically ill, or incurable persons xvho are unable to care for themselves and in xvhich three or more persons not of the immediate family are kept or provided xvith food and shelter or care for compensation; but not including hospitals, clinics, or other similar institutions devoted primarily to the diagnosis and treatment of the sick or injured. Elderly Housing, Life Care Housing and Services: A residential complex, xvhich may contain multi- family dxvellings, attached dxvellings, single-family dxvelling and other t}~pes of dxvellings and structures designed for and principally occupied by senior citizens. Such facilities may include a congregate meals program in a common dining area, assisted living housing, nursing home facilities, congregate care facilities, and medical facilities and all other services ~pically supplied for elderly housing facilities. Elementary School: A private school established for grades i through 5 but may also include a kindergarten. Endangered Species: A species of animal or plant is considered to be endangered ~vhen its prospects for survival and reproduction are in immediate jeopardy from one or more causes as defined in the Endangered Species Act. Environment: The physical condition ~vhich exists ~vithin the area that ~vill be affected by a proposed development, including: land, air, ~vater, mineral, flora, fauna, noise, and objects of historic or aesthetic significance. Environment, Natural: This environment is characterized by severe biophysical limitations, presence of some unique or natural or cultural features intolerant of intensive human use, or its v~Jue is retained only in its natural condition. Management objectives are oriented to~vard preserving unique features, restricting activities that may degrade the actual or potential value of this environment, and severely restricting development in hazardous areas. Environmental Scientists: Professionals, ~vhich are required for the environmental analysis and plan required by this Chapter, ~vith training or direct experience in areas such as: environmental planning, physical geography, environmental geography or hydrology, ecolo~~, botany, soil sciences, or natural resources. Environmentally Sensitive Area: An area identified on the official map for Environmentally Sensitive Areas that contains Flood~vay, Developed Floodplain, Undeveloped Floodplain, Riparian Buffers, Water Related Habitat, or Upland Habitat. Environmentally Sensitive Areas Map: The official map that identifies areas identified as Environmentally Sensitive Areas. EPA: Environmental Protection Agency Ephemeral Stream: Stream that has flo~ving ~vater oniy during and shortly after precipitation events in a ~pical year. These streams are located above the ~vater table year round. Runoff' from rainfall, not ground~vater, is the primauT source of~vater for stream flo~v. Equal Conveyance Principle: An area of the cross-section of a stream, in its existing condition, carding a percentage of the stream to,v, ~vill continue to caru- the same percentage of the stream flo~v after filling of the flood plain occurs, ~vithout any rise in the 100-year flood plain elevation. Equestrian Facilities: A structure or area for horseback riding activities including boarding, training, lessons, and sho~vs. Erosion: The detachment and movement of soil or rock fr%ments, or the ~vearing away of the land surface by ~vater, ~vind, ice, or gravity, caused either by natural or human created conditions. Escort: A person ~vho, for consideration, agrees or offers to act as a companion, guide, or date for another person, or ~vho, for consideration, agrees or offers to privately model lingerie or to privately perform a striptease for another person. Escort Agency: A person or business association ~vho furnishes, offers to furnish, or advertises to furnish escorts as one of its primau- business purposes, for a fee, tip, or other consideration. Exaction Variance: A variance granted on the basis of a finding that the imposition of the regulations(s) exceeds any reasonable benefit to the property o~vner or is so excessive as to constitute confiscation of the tract to be platted. Extraction: To dra~v out or forth; hence to derive as if by dra~ving out; remov~J of physical matter in a solid, liquid, or gaseous state from its natur~Jly occurring location; the initial step in use of a natural resource; examples include: petroleum and natural gas xvells, shale and coal mines, gravel pits, and timber cutting. Extractive Industry: A use involving on-site extraction of surface or sub-surface mineral products or natural resources. Typical uses may be quarries, borro~v pits, sand and gravel operations, mining, and soil mining. Specifically excluded from this use is grading and removal of soil associated ~vith an approved site plan or subdivision or excavation associated ~vith, and for the improvement of, a bonafide a~icultural use. Extraterritorial Jurisdiction: The unincorporated area outside of and contiguous to the corporate boundaries of the City as defined and established in accordance with Chapter 42 of the Texas Local Government Code. Fabricating: The process of assembling using standardized parts. Facade: That portion of any exterior elevation on the building extending from grade to top of the parapet, ~vall, or eaves and the entire ~vidth of the building elevation. Fair Grounds: An area of land use including, but not limited to: agricultural related office building, exhibition of livestock and farm products, animal shoxvs and judging, carnivals, circuses, community meeting or recreational buildings and uses, concerts, food booths and stands, games, fides, rodeos, sales, auctions, and storage. Family: Txvo or more persons occup)Sng a single dxvelling unit xvhere all members are related by blood, marfiage or adoption. No single dxvelling unit shall have more than four unrelated individuals residing therein, nor shall any "family" have, additionally, more than four unrelated individuals residing xvith such family. The term "family" does not include any organization or institution,J group that receives federal or state funding for the care of the individual. FAR: See Floor-Area-Ratio. Farm Stand: An accessory use, building, or structure used for the retail sale of fresh fruits, vegetables, floxvers, herbs, or plants, home-processed food stuff% and products such as jams, honey, pickled products, sauces, baked goods, and homemade crafts/art made on the site. No commercially packed handicrafts or commercially processed or packaged foodstuff~ shall be sold at a farm stand. Farmer's Market/Open Air Market: The seasonal selling or offefing for sale at retail directly to the consumer of fresh fruits, vegetables, floxvers, herbs, or plants, processed food stuff~ and products such as jams, honey, pickled products, sauces, baked goods, crafts, and art, clothing and other goods, occurring in a pre-designated area, ~vhere the vendors are generally individuals ~vho have raised the produce or have taken the same or other goods on consignment for retail sales. Fast Food Restaurant: A restaurant serving food from an ordering counter or from a dfive-through fac/lity. Feedlot: A lot, corral, yard, or other area in xvhich livestock are confined, pfimarily for the purposes of feeding and groxvth prior to slaughter. The term shall not include areas xvNch are used for raising crops or other vegetation or upon xvNch livestock are alloxved to ~aze, nor sh~Jl it alloxv the slaughter of said animals and livestock on premises. Fees in Lieu of: Alloxving, at the developer's option, the payment of the developer's share of the cost of constructing a required public improvement instead of requiring the actual construction at the time of plat approval. FEMA: Federal Emergency Management Agency Filling: The depositing on land, xvhether submerged or not, of gravel, earth, or other natural matefials in any combination. Fire Code: The most recently adopted International Fire Code as published by the International Code Congress. Fire Lane: A fire apparatus access roadxvay, on pfivate property or xvitNn a public fight-of-xvay, xvNch provides unobstructed passage for the fire department apparatus responding to or engaged in emergency fire and rescue operations. Flea Market: An outdoor market for selling secondhand articles or antiques. Floodplain: An area identified by the Federal Emergency Management Agency as possibly being flood- prone, or beloxv the immediate flood line (100-year flood plain). Flood Fringe: The area located xvitNn the floodplain and outside the floodxvay. Flood Hazard Boundary Map (FHBM): An official map of a community, issued by the Federal Insurance Administration, xvhere special flood hazard areas have been designated. Flood Insurance Rate Map (FIRM): An official community map shoxving special flood hazard areas and the risk premium zones applicable to the community as issued by the Federal Insurance Administration. Flood Insurance Study: The official Federal Insurance Administration report cont~Sning flood profiles, the xvater surface elevation of the base flood and the flood hazard boundary map. Floodway: Area regulated by federal, state, or local requirements to provide for discharge for the base floxv, so that the cumulative increase in xvater surface elevation is no more than a designated amount xvithin the 100-year floodplain. A river, channel or other xvatercourse and the adjacent land areas that must be reserved in order to discharge the base flood xvithout cumulatively increasing the xvater surface elevation more than a designated height. Normally, the floodxvay xvill include the stream channel and that portion of the adjacent land areas required to pass the base flood (one-hundred-year flood) discharge xvithout cumulatively increasing the xvater surface elevation at any point more than one (1) foot above that of the prefloodxvay condition, including those designated on the flood insurance rate map. Floor Area: The floor area is the gross horizontal area of the one or more floors of a structure, excluding interior parking spaces. Residential floor space shall be exclusive of carport, basement, attic, patios and open porches. Same as Gross Leasable Floor Space. Floor Area Ratio (FAR): The ratio ~vhich is the result of dividing the total floor area of a structure by the area of the lot on ~vhich it is located. For example, a structure ~vith a floor area of 20,000 square feet, located on a lot of 40,000 square feet has a floor area ratio (FAR) of 0.5. Food Processing Facilities: Industrial operations in ~vhich ra~v food is made suitable for consumption, cooking or storage. Such facilities include commercial slaughterhouses for poultry, livestock, or other animals, hog fam~s, and egg farms. Footprint: The horizontal area as seen in a site plan, measured from outside of all exterior ~valls and supporting columns. It includes residences, garages, covered carports, accessory structures, all other structural uses both primary and accessory to that district, but not trellises, patios, and areas of porch, deck, and balcony less than 30 inches from finished grade. Fraternity or Sorority House: The structure in ~vhich a student or professional organization formed chiefly to pursue common interests, be it cultural, religious, entertainment or social, and ~vhich has regular meetings, rituals, and formal membership requirements is housed. These structures also may provide housing to its members. Freeboard: The vertical distance bet~veen the design ~vater surface level and the top of an open conduit left to allo~v for ~vave action, floating debris or any other condition or emergency ~vithout overtopping the structure. Frequency: Number of complete oscillations or cycles per unit of time. The unit of frequency often used is the Hertz (Hz). Front Yard: See "Yard, Front." Frontage: That side of a lot, parcel or tract abutting a street right-of-~vay. Garage, Private or Public: A structure for the use of the o~vner or occupant of a principle structure for the storage of motor vehicles ~vith no facilities for mechanical service or repair of a commercial or public nature. Garage Sale: A temporary activity conducted on the premises of a private residence for the purpose of disposal of goods or belon~ngs of the residents of the d~velling. For the purposes of this Chapter, garage sales shall not be considered a commercial activity. Gated Communities: Residential areas that restrict access to nom~ally public or private open spaces and routes. General Business: Commercial uses providing a ~vide range of retail goods and services to meet the needs of a large segment of the community. Grade: A. The inclination or slope of a conduit, channel or natural ground surface, usually expressed in the percentage of units of vertical rise or fall per unit of horizontal distance; B. The elevation of the invert at the bottom of a conduit, canal, culvert, server, etc.; or C. The finished surface of a canal bed, roadbed, top of an embankment or bottom of excavation. Grade, Existing: The vertical elevation of the ground surface prior to excavation or filling; the surface of the ~ound or pavement at a stated location as it exists prior to disturbance in preparation for a development regulated by this Chapter; or, the vertical elevation of a site ~vhich is currently developed and built upon. Grade, Ground Level: The average of the finished ~ound level at the center of all ~valls of the structure. In case a ~vall is parallel to and ~vithin five (5) feet of a side~valk, the ground level shall be measured at the side~valk. Grade, Natural: The existing grade or elevation of the ~ound surface that exists in its unaltered state. Grade, Percentage of: The rise or fall of a slope in feet and tenths of a foot for each 100 feet of horizontal difference. Grade Separation: The physical development of structures or intersections that separate motor vehicle from motor vehicles; motor vehicles, pedestrians, and bicyclists from trains and other transit; motor vehicles from pedestrians and bicyclists; as ~vell as pedestrians from bicyclists. Grading: The mechanical or physical act of disturbing, moving, removing, transferring, or redistributing soil or earthen surfaces. Gross Leasable Floor Space: The ~oss horizontal floor area of the one or more floors of a structure, excluding interior parking spaces. Residential floor space shall be exclusive of carport, basement, attic, patios and open porches. Same as Floor Area. Ground Cover: Lo~v grooving plants, vines, or grasses that form dense, extensive gro~vth, and have a positive effect against soil erosion and soil moisture loss. Permeable natural landscape materials, such as mulch and rock, are also considered ~ound cover to the extent they are used in combination ~vith live plant materials. Ground Coverage: The area of a lot occupied by all structures and parking expressed as a percentage of the gross area of the lot. Drive~vays are not included in the percent coverage but parking pads or areas, porches, decks, patios, pools, tennis courts, sheds, ~valk~vays and other accessoU- uses shall be included. Group Homes for Disabled Persons: A shared residential living arrangement ~vhich provides a family- ~pe environment for 6 or more handicapped persons supervised by one or more primau- caregivers and has obtained a license to operate under the Personal Care Facilities Licensing Act. Tex. Health & Safety Code ~247.001 et.seq. A Group Home for Disabled Persons does not include Community Homes for Disabled Persons. Group Home: A profit or nonprofit facility, home, or structure for the protective care of persons, both adult and adolescent, ~vho need a ~vatchful environment, but do not have an illness, injuuT, or disability ~vhich requires chronic or convalescent care, including medic~J and nursing services. Protective care and ~vatchful oversight includes, but is not limited to, a daily a~vareness by management of the residents' ~vhereabouts, the asking and reminding of residents of their appointments for medical checkups, the ability and readiness of management to intervene if a crisis arises for a resident, and supervision by management in areas of nutrition, medication, and actual provision of transient medical care, ~vith a 24-hour responsibility for the ~vell-being of residents of the facility. Personal care facilities are exempt from the definition of a family and sh~Jl be classified in one of the follo~ving ~vays: A. Individual: ()ne to three clients, plus manager. B. Family: Four to six clients, plus manager. C. Group: Seven to 15 clients, plus manager. D. Congregate: Sixteen or more clients, plus manager. Guest House: An attached or detached building that provides living quarters for guests, servants, or a related family member, wh/ch is considered an accessory use, and wh/ch is clearly subordinate and incidental to the principal residence on the same building site; and, is not rented or leased. Habitat: The physical location or ~pe of environment in wh/ch an orgaaism or biologic~J population lives or occurs. Handicap: A physical or mental impairment wh/ch substantially limits one or more of such person's major life activities, a record of having such an impairment or being regarded as having such an impairment, but such term does not include current, illegal use of or addition to a controlled substance as defined by Chapter 48i of the Texas Health & Safety Code. Hazardous Materials or Waste: A substance classified as a hazardous material under state or federal law or a chemical, petroleum product, gas, or other substance that if discharged or released, is likely to create an imminent danger to individuals, property or the environment. A hazardous material includes, but is not limited to any one of the folloxving, as defined by 40 C.F.R 173, or, with respect to hazardous waste, listed as a substance subject to 40 C.F.R. 262: Radioactive material; Explosives, Class A; Explosives, Class B; Poison A; Poison B; Flammable gas; Nonflammable gas; Flammable liquid; Oxichzer; Flammable solid; Corrosive material; Combustible liquid; Etiologic agent; other regulated material (OP~M); or, Hazardous ~vvaste. Heavy Manufacturing: Industrial operations for the production of a good using raw materials and mechanical power and machinery. Height: The vertical distance to the highest point of the roof for flat roofs; to the deckline of mansard roofs; and to the average height between eaves and the ridge for gable, hip and gambrel roofs, measured from the curb level if the building is not more than i0 feet from the front property line or from the ~ade in all other cases. Except as otherwise specified, the height of a structure other than a building is the vertical chstance from the average grade at the base of the structure to the h/ghest point of the structure. Hertz: Uait of frequency equal to one cycle per second. High School: A private school established Gr grades 9-i2 or i0-i2. Home Occupation: An occupation commonly carried on within a dwelling by members of the family occupying the dwelling. The use of the home as an occupation shall be incidental and subordinate to the use of the home as a dwelling. Homeowners Association: A homeowners association is an orgaaization formed for the maintenance and operation of the common areas of the development. The membership in the association must be automatic with the purchase of a dwelling uait or other property in the planned development. The association's principal source of funds shall be an assessment levied against each dwelling uait or other property, which assessment shall be enforceable as a lien against the property. Hortictflture: The cultivation of row crops, a garden, or an orchard for noncommercial purposes. Hospice: ()ne main building, or portion, one zoaing lot in wh/ch terminally ill persons live in order to receive appropriate Medicare-certified hospice services. Hospital: An establishment wh/ch provides sleeping and eating facilities to persons receMng medical, obstetrical, or sur~cal care and nursing service on a continuous basis. Hotel: A facility offering transient lodging accommodations to the general public at a daily rate for a period of time not to exceed thirD- (30) days, and providing additional services, such as restaurants, meeting rooms, and recreational facilities. Guest quarters are accessible through a main entrance and by hallxvays. Hotel/Motel, Extended Stay: A facility offering transient lodging rooms and/or suites to the general public, including lodging quarters for corporations and businesses, intended to be used, or xvNch are used, rented, or h/red out to be occupied or xvNch are occupied for sleeping purposes for guests, naa5- contain up to txvo bedrooms, contain kitchen facilities for food preparation including, but not limited to, refrigerators, stoves, and ovens, and xvhich may also include 1Mng areas, and xvNch are furnished to the public for periods of one xveek or more. Hydrograph: A graph showing stage, flow, velocity or other property of water versus time at a given point on a stream or conduit. Impact Fee: A fee levied by the City pursuant to Chapter 395 of TX Local Govt. Code, as a total or partial reimbursement for the total or partial cost of providing additional facilities or services needed as a result of nexv development. Impairment, Physical or Mental: A. Any physiological disorder or conchtion, cosmetic disfigurement, or anatomical loss affecting one or more of the folloxving body systems; neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; heroic and lymphatic; skSn; and endocrine; or B. Any mental or psychological disorder such as mental retardation, orgaaic brain syndrome, emotional or mental illness and specific learaing disabilities. C. The term includes but is not limited to such diseases and conditions as orthopedic, visual, speech dementia, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug adchtion (other than drug addition caused by illegal use of a controlled substance). Impervious: Any hard-surface, man-made area that does not readily absorb or retain xvater, including but not limited to building slabs, building roog, sxvimming pools, parkSng and drivexvay areas, sidexvalks, paved recreation areas, and other surfaces that do not gener~Jly absorb xvater and are not considered by the City to be pervious surfaces. Impervious Surface: A surface that has been compacted or covered xvith a layer of material so that it is Nghly resistant to infiltration by xvater. Indoor Recreation: Indoor commercial uses xvNch by their nature are recreational. Examples include boxvling alleys, skating rinks, health clubs, racquetball or squash courts, indoor sxvimming pools, video arcades, pool halls, etc. Industrial, or Industrial Use: An activity related to the manufacture, xvarehousing, shipping, production or storage of products to be transported elsexvhere for retail sale. Infill: Development or redevelopment of land that has been bs~passed, remained vacant, and/or is underused as a result of the continuing urban development process and xvhere 80 percent of the land is xvitNn a 500-foot radius of the site has been developed. Annexed areas on the periphery of the City limits are not considered inffll sites. Generally, these sites are readily accessible to infrastructure services and facilities. Infrastructure: The provision of systems that provide transportation, xvater, xvaste xvater, solid xvaste, storm xvater drainage, electrical and franchise facilities tS~pically required to service development. INet: An opening into a storm drain system for the entrance of surface storm runoff: Inoperative Vehicle: Any motorized veNcle incapable of immediately being driven. Institution: An establishment that: A. Furaishes, in one or more facilities, food and shelter to four or more persons xvho are unrelated to the proprietor of the establishment; and B. Provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, and laundry; or C. A foster care residential facility that provides room and board to fexver than five persons xvho: i. Are not related xvithin the second degree of consanguinity or affiaity, as determined under Chapter 573, Government Code, to the proprietor; and 2. Because of their physical or mental limitation, or both, require a level of care and services suitable to their needs that contributes to their health, comfort, and xvelfare. Institutional Use: A non-profit or quasi-public use, such as a religious institution, library, public or private school or hospital, or government-oxvned or government-operated structure or land used for public purpose. Installation: In reference to manufactured housing, means the construction of the foundation systems, xvhether temporary or permanent, and the placement and erection of a HUD-Code Manufactured Home or HUD-Code Manufactured Home components on the foundation system and includes supporting, blocking, leveling, securing, anchoring, and proper connection of multiple or expandable sections or components, and minor adjustments. Intermediate Care Facilities: A convalescent home or other recuperative facility for use by persons subsequent to hospital confinement, xvho are not yet ready to resume home life. Intermittent Stream: A stream that has floxving xvater during certain times of the year, xvhen ground~vater provides ~vater for stream flo~v. Interm/ttent streams may not have flo~ving ~vater during dry periods. Runoff' from rainfall is a supplement~J source of xvater for stream floxv. Inverted Crown Section: A street cross section usually reserved for alleys in xvNch the center of the street is loxver than the edges so that drainage is carried doxvn the center of the street. Irrigation, Underground: A permanent, artificial xvatering system designed to transport xvater and distribute xvater to plants. Junkyard: A business that stores, buys, or sells materials that have been discarded or sold at a nominal price by a previous oxvner and that keeps all or part of the materials outdoors until disposing of them. Kennels: Facility for the boarding (overnight) of domestic animals, usually limited to dogs and cats. Breeding and training of dogs and cats and the sale to the public of puppies and kittens is classified as a kennel activity. Land Disturbing Activity: Alteration of the land surface by: A. Any ~ading, scraping, excavating, dredging, transporting or filling of land; B. Any clearing of vegetation; C. Any construction, rebuilding, or alteration of a building, road, driveway, parking area, or other structure, not including routine maintenance such as painting, repair, or reconstruction of existing structures or surfaces; D. Any substantial activity or use which may result in soil erosion from water or wind and the movement of sediments into waters or lands protected by th/s Chapter; and, E. It shall not include activities such as ordinary maintenance and landscaping operations, individual home gardens, repairs, additions or minor modifications of an existing single family dwelling, and the cutting of firewood for personal use. Land Use Plan: The Land Use Element of The Denton Plan, as may be anaended and including The Land Use Plan and Future Zoning Map. Landscaping: A planted area contaiaing trees, shrubs, and groundcovers providing a transition between structures on a site and the property line, adjacent structures, or street rights-of-way. Lane: A driving surface with a width as specified in the street design standards for that class of street. Laundry Facilities: A commercial laundering establishment wh/ch cleans clotNng, carpeting, drapes, and other cloth or synthetic fiber materials using a chemical process. Such establishments may also include self-service laundering facilities. License: Written license issued by the City Council, permitting a person to operate and maintain a HUD-Code Manufactured Home Park under the provisions of th/s Chapter. Light Manufacturing: Industrial operations relying on the assembly of products using parts previously developed from raw material and not classified as a point source of objectionable pollutants. Limits of Construction: Delineation on a graphic exhibit, xvhich shoxvs the boundary of the area xvithin xvhich all construction activiD- xvill occur. Live-Work Units: Alloxvs 25% of floor area to be used as xvork space, subject to home occupation limitations. Livestock: Facilities for the raising, breeding, or maintenance of domestic animals including, but not limited to cattle, horses, sheep, sxvine, goats, and poultry. This definition does not include feed lots or similar uses. Loading Space, Off-street: Space lo~cally and conveniently located for bulk pickups and deliveries, and scaled to delivery vehicles expected to be used. Local Drainage System: Any drainage facility or system, xvhich serves an area having a contributing drainage basin of less than one (i) square mile in area. Lot: A designated parcel, tract or area of land established by a plat or other~vise permitted by laxv to be used, developed or built upon as a unit. Lot Area: The total horizont~J area xvithin the lot lines of a lot, said area to be exclusive of street right-of- x~vay. Lot Corner: A lot abutting the intersection of rvvo or more streets other than an alley. Lot Coverage: That portion of a lot used for building, parking, vehicular and pedestrian circulation, loading areas, and outside storage areas. Lot Depth: The horizontal distance from the midpoint of the rear of lot line to the midpoint of the front lot line. Lot, Double Frontage: A lot having frontage on rvvo nonintersecting streets, as distinguished from a corner lot. Double frontage lots are prohibited. Lot, Flag: An5- lot not having standard legal access to an CiD- street, and xvhich is provided xvith access by a drivexvay parallel to the lot line of a lot having standard access. Lot Frontage: That portion of a lot adjacent to a street. Lot Improvement: Any building, structure, xvork of art or other object or improvements of land on xvhich they are situated, xvhether immediate or future, xvhich includes but is not limited to streets, alleys, utilities, drainage modifications, and access modifications including curb cuts. Lot improvements include off-site xvork accomplished for the betterment of removed building lots. Lot, Interior: A lot other than a corner lot or a through lot. Lot Line: A boundary of a lot. "Lot line" is synonymous xvith "properD- line." Lot Line, Front: In the case of an interior lot, the lot line separating the lot from the street other than an alley. A corner lot shall have one (i) street line considered the front lot line. The narroxver street frontage shall be the front lot line except xvhen the Director of Planning and Development determines topographical or access problems make such a designation impractical. Lot, Gross Area: An area under public or private properD- oxvnership, xvhose lot lines are described by plat or deed. Lot Line, Rear: A lot line xvhich is opposite and most distant from the front lot line, and in the case of an irregular, triangular, or other shaped lot, a line ten (i0) feet in length xvithin the lot parallel to and at a naaxinaum distance from the front lot line. Lot Line, Side: Any lot line not a front or rear lot line. Lot of Record: An indMdual lot or a lot xvhich is a part of a subdivision, the map of xvhich has been legally recorded in the office of the Denton County Clerk; or a parcel of land the deed of xvhich has been recorded in the office of the Denton Count}- Clerk. Lot, Reversed Corner: A corner lot, the side street line of xvhich is substantially a continuation of the front line of the first lot to its rear. Lot, Through: An interior lot having frontage on txvo (2) parallel or approximately parallel streets other than alleys. Through lots are prohibited. Lot Width: The horizontal distance between the side lines, measured at right angles to the lot depth at a point midway between the front and rear lines. Major Event Entertainment: A structure or area with a capacity of greater than 1,000 seats for pubhc performances and spoming events. Major event entertainment facihfies include concert hahs, stadiums, and ~ECH~S. Major Life Activity: Includes functions such as caring for one's self, perforngng manual tasks, waling, seeing, hearing, spea~ng, breat~ng, lear~ng and wor~ng. Manufacture of Non-Odiferous Foods: Industrial operations for the manuGctufing of non-odiferous foods. Manufactured Home: See "Dxvelhng, Manufactured Home." Manufactured Home Park or Park, HUD-Code: A parcel of land under single entity oxvnersNp xvNch has been separately platted for the placement of HUD-Code Manufactured Homes, accessou~ uses and se~qce facihfies, meeting all requirements of tNs Chapter and any applicable deed restrictions and state laxvs. Manufactured Home Subdivision, HUD-Code: A tract of land that is subdivided and platted for individu~2 oxvnersNp of HUD-Code manufactured homes. Master Plan: Pohcies and plans adopted by the CiD~ Council as a g~de to the systematic physical development of the City. Mechanical Equipment: Eq~pment or devices installed for a use appurtenant to the pfimau- use. Such eq~pment sha~ include heating and air conditioning equipment, solar collectors, parabohc antennas, disc antenna, radio or TV receiving or transmitting antennas, and any poxver generating devices. The folloxving eq~pment or devices are exempt: A. Private, noncommercial radio and television antennas not exceeding a height of sevenU~ (70) feet above ~ade or tNrty (30) feet above an e~sfing structure, xvNchever height is greater. No part of such antenna sha~ be xvithin the yards required by this Chapter. A structure pern~t sha~ be req~red for any antenna mast, or toxver over fifu- (50) feet above grade or tNru~ (30) feet above an e~sting structure xvhen the same is constructed on the roof of the structure. B. Parabolic antennas under three (3) feet in diameter. Medical Center: A xvalk-in facihU~ for medical, obstetrical, or sur~cal care limited to day use o~y. Midge School: A private school established for grades 6-8 or 6-9. Minimum Structure Separation: A req~red open space betxveen any ~vo structures on the same lot xvNch are used for nonresidential and m~tifan~y residential purposes. Minor Plat: A subdivision resulting in four (4) or fexver lots, not req~fing the creation of any nexv street or the extension of mu~cipal facilities and not generating an average daily veNc~ar traffic (ADT) count of one thousand (i,000) or more veNcles. Motel: A structure or ~oup of structures on the same lot contai~ng in~vidual guest u~ts for rental to transients, xvith separate exterior entrances, and consisting of in~vidual sleeping quamers, detached or in connected roxvs, xvith or xvithout cooing facihfies. Native Vegetation: Vegetation comprised of plant specie, other than no~ous xveeds, that are in~genous to the Denton CounU~ and that reasonably could have been expected to naturally occur on the site. Natural Resources: ~r, land, xvater, and indigenous plant and a~mal life of an area. Nonconforming Use or Structure: Any structure or use of land laxvf~ at the time of passage or amendment of this Chapter xvhich does not conform, after the passage or amendment of tNs Chapter, xvith the reg~afions of the district in xvNch it is located. Non-resident Lot: A lot on xvhich there is no dxvelling or business established. Nude Model Studio: Any place xvhere a person xvho appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, draxvn, painted, sculptured, photo~aphed, or sin~larly depicted by other persons xvho pay money or any form of consideration. Nudity or a State of Nudity: A. The appearance of a human bare buttock, anus, male genitals, female genitals, or female breasts; or B. A state of dress xvhich fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast. Nursery School: See "Day Care, Nursed~, Kindergarten". Nursing Home: See "Elderly Housing, Nursing Home". Octave Band: A portion of the audible sound spectrum. sound spectrum into eight (8) octave bands. An octave band analyzer dMdes the audible Odor Threshold: The concentration of odorous matter in the atmosphere necessauT to be perceptible to the olfactou~ nerve of a normal person. Determination of the odor threshold is prescribed by A.S.T.M.D. 1931-57, Standard Method for Measuring Odor in Atmosphere. Official Map: A map officially adopted by the governing body of City, Texas. Official Zoning Map: A map officially adopted by the Cig~ Council that illustrates the various zoning districts of the CiDT of Denton, Texas. Off-site: Located outside the boundau- of a development. One Hundred (100) Year Water Surface Elevation (100-Yr W.S.E.): The xvater surface elevation established by hydrologic/hydraulic analysis of a stream, river, creek, or tributau~, using the 100-year fully developed xvatershed, based upon the 100-year rainfall event. On-site: Located xvithin the boundauT of a development. Open Space: Any parcel or area of land or xvater set aside, dedicated, designated, or reserved for public use or enjoyment of for the private use and enjoyment of oxvners and occupants of the land adjoining or neighboring such open space. Outdoor Recreation: Outdoor commercial uses xvhich by their nature are recreational such as golf courses, outdoor sxvimming pools, tennis courts, and basketball courts. Outdoor Resale Business: A business that sells used merchandise, other than automobiles, logging equipment, or other agricultural equipment, and stores or displays the merchandise outdoors. Outdoor Storage: The storage of especially large quantities of materials or products associated xvith an industu- or business. Such storage requires a structure designed for and/or devoted to the containment of the item, such as oil storage tank or ~ain elevator. Owner: The oxvner of a tract of land as recorded in the Denton County Deed Records. An oxvner may include: a person, firm, corporation, partnership or agent, attorney-in-fact, manager or director, or developer. Such term as used in this Chapter alxvays includes one (1) or more of the persons enumerated in this section xvho oxvn all or any part of the land xvhich is contemplated to be developed. Park or Recreation, Public: The real property and improvements thereon oxvned, operated, or maintained by the City, university, or other public entity, ~vhich are designed or used for recreational purposes and are available to the general public. The recreational purposes includes, but is not limited to public s~vimming pools, golf courses, tennis courts, stadiums, and recreational centers. Park or Recreation, Private: A noncommercial, not for profit facility designed to serve the open space and recreation needs of the residents of a development. Parking Space: A rectangle not less than eighteen (18) feet long and nine (9) feet wide together with access and maneuvering space sufficient to permit a standard automob/le to be parked within the rectangle without the necessity of moving other vehicles, said rectangle to be located off of the street right-of-way. Parking, Street; Off-Street, HUD-Code Manufactured Home Park: A parking space located within the boundary of a HUD-Code Manufactured Home space, or in common parking and storage area having unobstructed access to an internal street or access way, and as depicted on the site plan. Parking Tandem: Parking spaces that are arranged one behind another. Each parking space shall meet the chmension requirements of a full-size car on a one-way aisle. Tandem parking is allowed in drive- through lanes. Partictflate Matter: Finely divided solid or liquid matter, other than water, which is released into the atmosphere. Paved: A paved surface shall be in accordance with City codes and Chapters relative to approved surfaces or as specified. Peak Partite Velocity: Unit of measurement that identifies, in inches per seconds, how fast the ground ITIOVeS. Pedestrian Oriented District: All property xvithin a Neighborhood Residential zoning district and the Central Business District. Pedestrian Path: A graded, cleared xvay for individuals xvho travel on foot. When located along any improved street or parking area, these paths shall be adjacent to the curb at curb level. Pedestrian Way: A right-of-xvay for pedestrian traffic. Perennial Stream: A stream xvith floxving xvater year-round during a ~pical year. The xvater table is located above the stream bed for most of the year. Ground xvater is the primary source of xvater from stream floxv. Runoff' from rainfall is a supplemental source of xvater for stream floxv. Permitted Use: That use of a lot xvhich is anaong the uses alloxved as a matter of right, and subject to the restrictions of the zoning district. Person: An individual, firm, partnership, proprietorship, association, corporation, estate, receiver, syndicate, branch of government, social or fraternal organization, or any other ~oup or combination acting as a legal entity, and including any trustee, assignee, or other representative. Pilot Channel: A concrete channel section used to convey normal loxv floxvs, fix the location of the floxv line of a channel, minimize erosion and provide access for maintenance. Planning Staff: The staff' of the City of Denton Planning and Development Department. Planning and Zoning Commission/Commission: The City of Denton Planning and Zoning Commission, referred to as "Commission." Planting Area: An outdoor area, the surface of xvhich sh~Jl not be covered by impervious surface materials or structures, and devoted entirely to the planting or maintenance or plant materi~Js, except as other~vise alloxved by this Chapter, such as xvalls, fences, plazas, landscape architectural features such as gazebos, pergolas, arbors, fountains, or sculpture. Landscape architectural features shall not include tennis courts, basketball courts or other pervious recreational facilities. Plants, Plant Material: Live plant materi~2, including ~asses, annuals, perenni~2s, bulbs, groundcover, shrubs, and trees, are botanical plants that are nourished through the processes of air, xvater, and soil nutrients. Plastic, fibrous, silk, or other non-live materials, are not considered live plant materials. Plat or Final Plat: A map of a subdivision, addition or development to be recorded in the County Clerk Plat Records after approval by the Planning and Zoning Commission or the Development Reviexv Committee. Pole Mounted Antenna: Any antenna xvhich is preassembled off-site and designed to be moved from site to site. Preliminary Plat: A map shoxving the salient features of a proposed development as required by this Chapter submitted for the purpose of preliminaD- consideration prior to the submission of a Final Plat. Printing/Publishing: An establishment xvhere printed material is produced, reproduced and/or copied by either a printing press, photographic reproduction techniques, or other similar techniques. This use does not include copy shops. Private Access Drive: A drive serving as the exclusive access for not more than txvo landlocked parcels of land, ~vNch is not o~vned or maintained by City. Private easements cannot be used to meet the right-of- ~vay requirement. Private Club: A group of people associated xvith or formally organized for a common purpose, interest or pleasure, including organizations xvith facilities for the storage, sale, possession, or serving of any alcoholic beverage permitted by the laxv of the State of Texas and xvhere none of such facilities are available except to a member or their guests. Private Street: A street xvhich serves sever~J lots over xvNch the general public has no right of use as opposed to a drivexvay xvNch is meant to serve one lot. Private Utility Provider: The oxvner of a xvire netxvork (i.e.. cable, electric, or telephone company) utilized in connecting the various cell sites to telephone sxvitching offices, long distance providers or the public sxvitched telephone netxvork. Private Way: A private easement or oxvnersNp established by deed for vehicular access to property. Professional Services and Offices: Offices used for the conduct of business-related activities, excluding the sale of merchandise or storing of merchandise on the premises. Protective Fencing: TemporaD- chain link fence, xvire fence, orange vin)q construction fence, snoxv fencing or other similar fencing xvith a minimum four-foot (.4') height. Public Improvement: An)- street, alley, utility, drainage facility or other facility or improvement of land designed and intended to be dedicated, conveyed, or oxvned by the public. Public Street: A street xvNch is oxvned or m~Sntained by CID-. Public Utilities: For the purposes of tree preservation provisions of the Denton Development Code, the term, Public Utilities includes public sanitaD- sexvers, public xvater mains, public streets, public storm sexvers, public detention ponds municipally-oxvned electric utilities, electric cooperatives, investor- oxvned electric utilities, telephone companies, cable television companies, and other utilities defined under Texas laxv as "public utilities," as xvell as an)- contractor hired by these utilities. Qualified Professional: For the purposes of tree preservation provisions of the Denton Development Code, a qualified professional is a person xvith a minimum of a Bachelor of Science Degree in an)- of the folloxving disciplines: ForestD-, Horticulture, Botany and/or Plant / Soil Science or, an Arborist that has been certified by the International SocieD- for Arboriculture. a Texas Certified NurseD- Professional, a Texas Master Certified NurseD- Professional certified by the Texas NurseD- and Landscape Association or a Licensed Landscape Architect. Quick Vehicle Servicing: A business providing service to the motoring public. Such uses can include gasoline sales, light repair, tune-ups, oil changes, transmission or drive train repairs to automobiles or light trucks. No outside storage of an)- automobiles or materials such as tires, auto parts, etc., is alloxvable. The sale of motor vehicles shall be prohibited. Rear Yard: See "Yard, Rear." Recreational Vehicle: A motorized vehicle, designed or maintained for use as a temporaD- dxvelling or sleeping place for travel or recreation purposes exclusively, having no foundation other than xvheels or jacks. Recreational Vehicle Park: A parcel of land xvNch is used solely for the rental or lease of lots for transient campers, trailers, motor homes, or temporaD- parking of an)- other recreational vehicle that is not a mobile home or HUD-code manufactured home. Recycling Business: A business that is primarily engaged in: A. Converting ferrous or nonferrous metals or other materials into raxv material products having prepared grades and having an existing or potenti~J economic value; B. Using raw material products of that kind in the production of new products; or C. Obtaining or storing ferrous or nonferrous metals or other materials for a purpose described by Paragraph A or B. Replat: A change in a map of an approved or recorded subdivision plat if such change affects any street layout on such map or area reserved thereon for public use or any lot line or if it affects any map or plan legally recorded prior to the adoption of any regulations controlling subdMsions. Residential District: A one-family, two-family, or multi-family zoning district, or any area within a planned development zoning district which is desi~onated for residential use, as shown on the approved site plan for the district. Residential Use: A one-family, two-family, or multi-family dwelling, trailer camp, mobile home, or HUD-code manufactured home park or development. Restaurant: A structure that prepares and serves food to customers, including sit down, fast food, drive- through, and drive-in facilities. Retail Sales and Service: A business established for the sale of goods or services to consumers, usually in small quantities (as opposed to wholesale) and does not include wholesale goods or services. Right-of-way: A strip of land occupied or intended to be occupied by a street, crosswalk, railroad, road, electric transm/ssion line, oil or gas pipeline, xvater main, sanitary or stoma sexver main or for another Specific Use. The usage of the term "right-of-xvay" for land platting purposes means that every right-of- xvay established and as shoxvn on a final plat is to be separate and distinct from the lots or parcels adjoining such right-of-xvay and not included xvithin the dinaensions or areas of such lots or parcels. Right-of-xvay intended for streets, cross~valks, ~vater mains, sanitary servers, stoma drains or any other use involving maintenance by a public agency shall be dedicated to public use by the maker of the plat on which such right-of-way is established. Riparian: An area adjacent to a river, stream or other natural course of water. Riparian Buffers: Areas identified as 100 feet from the stream centerline for streams draining a basin of greater than one square mile, and 50 feet from any streams that drain areas of one square mile or less. It also includes any areas identified as riparian through any Amay Corps of Engineers Section 404 Pem~it Process. Root Pruning: Shall mean to cut away, remove, cut off or cut back all or parts of the root. All root pruning shall be in accordance with approved methods set forth in the National Arborist Association Standards. Sales of Products Grown On-site: Roadside stands or other temporary structures constructed for the sale of a~icultural or horticultural products raised substantially on the premises. Salvage Yard: Any lot or parcel of land on which wastes or used secondhand materials are bought, sold, exchanged, stored, processed, or handled. Materials include but are not limited to: scrap iron and other ferrous metals, paper; rags, rubber tires, bottles, discarded goods, machinery, or two or more inoperable motor vehicles. Sanitary Landfills: A system of trash and garbage disposal in which the waste is buried between layers of earth. Satellite Earth Stations: Are considered to be accessory structures and are defined as a combination off A. An antenna or dish antenna whose purpose is to receive communication or other signals from orbiting satellites and other extraterrestrial sources; B. A low-noise anaplifier (LNA) which is situated at the focal point of the receiving component and whose purpose is to magnitS- and transfer signals; C. A coaxial cable whose purpose is to carry the signals into the interior of the structure; and, D. The station must be located to the side or rear of the structure unless a usable satellite signal cannot be obtained; in ~vhich case, the property o~vner may request a variance from the requirement through the board of adjustments. Ground-mounted stations shall be no more than ten feet above the maximum height requirement of the district in ~vhich they are located. School, Public or Private: A building ~vhere persons regularly assemble for the purpose of instruction or education and includes play~ounds, stadium, and other structures or ~ounds used in conjunction there~vith. The term is limited to (1) public and private schools having a curriculum generally equivalent to elementary or secondary schools, and/or (2) special educational facilities in ~vhich students ~vho have physical or learning disabilities receive speci~Jized education in lieu of attending regular classes in a kindergarten or grades one through t~velve. Scrap Metal Processor: ()ne ~vho, from a fixed location, utilizes machinery and equipment for processing and manufacturing iron, steel or nonferrous metallic scrap into prepared ~ades and ~vhose principal product is scrap iron, scrap steel, or nonferrous metallic scrap for sale for remelting purposes. Screening: The establishment of an opaque fence or barrier for the purpose of obscuring from sight a use. Section 404 Permit: A permit required under federal Clean Water Act provisions. Self-Service Storage: A structure or portion used for dead storage, mainiy of the excess person~J property of an indMdual or family, but also of small amounts of goods or merchandise for businesses or indMduals. Semi-Nude: A state of dress in ~vhich clothing covers no more than the genitals, pubic region, and areola of the fem~Je breast, as ~vell as portions of the body covered by supporting straps or devices. Semi-Public Halls, Club or Lodge: A structure or facility o~vned or operated for special educational or recreational purposes, but not primarily for profit or to render a service that is customarily carried on for gain. Setback: The minimum distance bet~veen by ~vhich any building or structure must be separated from a street right-of-~vay or lot line. Sewer Connection, Manufactured Home: Connection consisting of pipes, fittings and appurtenances from the drain outlet of a HUD-Code Manufactured Home to the inlet of the corresponding server service riser pipe of the selvage system serving the HUD-Code Manufactured Home Park. Sewer Service Riser Pipe, Manufactured Home: That portion of server service ~vhich extends vertically to the ~ound elevation and terminates at a HUD-Code Manufactured Home space. Sexually Oriented Business: An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, or nude model studio. Shared Drive: A common drive~vay or access shared by adjoining properties. Shopping Center: A group of commercial establishments planned, developed, and managed as a unit, related in location, size and t~pe of shops to the trade area that the unit serves, and providing on-site parking. 30 Side Yard: See "Yard, Side." Site Plan Review: The comprehensNe evaluation of a development and its impact on neighboring properties and the community as a ~vhole, from the standpoint of: land use, site design, landscape design, environmentally sensitive areas protection, architecture, lighting, signs, clearing and ~ading, en~neering design, health and safety, other adopted standards and criteria of this Chapter, all other adopted codes and ordinances of the City. Smoke: The visible discharge of particulate matter from a chimney, vent, exhaust or combustion process. Special Circumstances: With regard to utility extensions, only those areas ~vhere ~vater or server is deemed necessaU- and the application of any general rule for extension shall cause a burden and cost considerably ~eater than ~vhat ~vould be normally incurred due to the particular topography or unusual shape of the particular lot or tract invoNed. Specific Use Permit: A use xvhich is not automatically permitted by right, but xvhich may be permitted xvithin a zoning district subject to meeting specific conditions contained in this Chapter. Specified Anatomical Areas: Human genitals in a state of sexual arousal. Specified Sexual Activities: Includes any of the folloxving: The fondling or other erotic touching of the human genitals, pubic re,on, buttocks, anus, or female breasts; Sex acts, norm~J or perverted, actual or stimulated, including intercourse, oral copulation, or sodomy; Excretory functions as part of or in connection xvith any of the activities set forth in A through B above. Spread Limits: The xvidth of pavement covered by xvater floxving from a certain frequency (i.e.; one- hundred-year flood). Storage, Outdoor: Any area that contains trash collection areas or dumpster refuse containers; outdoor loading and unloading spaces; docks or outdoor shipping and receiving areas; outdoor storage of bulk materials and/or parts; or areas regularly used for outdoor repair, outdoor storage areas of service stations, motor vehicle dealers, or inspection stations. Temporary construction and related activities are excluded from this definition. Story: That portion of a structure included betxveen the surface of any floor and the surface of the floor next above it, or if there is no floor above it, the space betxveen the floor and the ceiling above it; provided, that a room, suite, or story xvith more than one-half of its height beloxv ~ade shall not be considered a story for the purposes of height regulations. Street: A public right-of-xvay for roadxvay, sidexvalk, and utility inst~Jlation including the terms "road", "highxvay", "land", "place", "avenue .... alley", or other similar designations. The entire xvidth betxveen the right-of-xvay lines of every xvay xvhich provides for public use for the purpose of vehicular and pedestrian traffic. Street Crown: The highest point of a street cross section, norm~Jly located at the centerline of the street. Stream Channelization: Manipulation of a stream channel to increase the rate of xvater floxv through the stream channel. Manipulation may include deepening, xvidenlng, straightening, armoring, or other activities that change the stream cross-section, or other aspects of stream channel geometry, to increase the rate of xvater floxv through the stream channel. A channelized stream remains a %vaters of the U.S.," despite the modifications to increase the rate of xvater floxv. Street, Crt-de-sac: A short dead-end street terminated by a vehicle turnaround. Street, Half: A portion of the xvidth of a street, usually ~Jong the edge of a subdivision, xvhere the remaining portion of the street is provided in another subdivision. Street, Marginal Access: A minor street par~21el and adjacent to a major arterial street providing access to abutting properties but protected from through traffic. Structure: Any structure attached to the ground which has a roof and which is designed for the shelter, housing or enclosure of persons, animals or property of any kind. That which is built or constructed; an edifice or structure of any kind or any piece of work artificially built up or composed of parts joined together in some definite manner and which requires location on, in, or above the ~ound or which is attached to something having a location on, in or above the ground. Structure, Height off The vertical distance measured from the average elevation of the proposed finished grade to the highest point of the coping of a flat roof or to the deck line of a mansard roof, or to the average height of the gable(s) of a pitch or hip roof. Any height limitation of this Chapter shall not apply to church spires, belfries, cupolas and domes not intended for human habitation, monuments, xvater toxvers, silos, chimneys, flag poles, except as may be limited in the "A" Airport overlay zone. Structure Line: A line on a plat indicating the limit beyond xvhich structures or structures may not be erected. Similar to Building Envelope. Structure, Principle: A structure in ~vhich is conducted the main or princip~J use of the lot upon ~vhich such structure is situated. Structural Alteration: A change to the supporting members of a structure including foundations, bearing ~valJs or partitions, columns, beams or girders, or the roof. Subdivision: The dMsion or redMsion of land into t~vo (2) or more lots, tracts, sites or parcels. Taflwater: The ~vater surface elevation directly do~vnstream of a drainage facility. Temporary Structure: A structure ~vithout any foundation or footings ~vhich is attached to the ~ound or other structure in some nonpermanent fashion. Temporary structures shall require a permit from the building inspection department and shall be removed from the site ~vhen the designated time period, activity, or use for ~vhich the temporary structure ~vas established has ceased, but not exceeding six months in duration unless an extension is obtained from the building inspection department upon just cause. Theaters: A structure or area for the presentation of plays, motion pictures, concerts, etc. Thoroughfare Plan: The thoroughfare component of the Mobility Plan, the official map depicting the City's existing and future street system and roa&vay ne~vork, together ~vith explanatory text. Time of Concentration; The estimated time (in minutes) required for storm~vater runoff' to flo~v from the most hydraulic~Jly remote section of the drainage area to a specific design point. TNRCC: The Texas Natural Resources Conservation Commission. Topography: The physical land surface relief describing the terrain elevation, position of land features and slope. Topography includes land forms, ~vater and other drainage features, and features such as gravel pits. A single feature such as a hillside or valley is called a topographic feature. Townhouse: See "D~velling, To~vnhouse." Townhouse, Fee Simple: See "D~velling, to~vnhouse, fee simple." Toxic and Noxious Matter: Any solid, liquid or gaseous matter ~vhich is present in sufficient quantities to endanger health, safety and comfort of persons in the vicinity or ~vhich may cause injury or damage to property. Traffic Impact Analysis: A study performed by a re~stered traffic engineer analyzing the impacts of the expected traffic generated by a development on the existing an proposed road system including recommendations for mitigating such traffic. Trailer: A non-motorized vehicle, pulled by an automobile or truck designed or maintained for use as a temporary &velling or sleeping place for travel or recreation purposes exclusively. Transfer Station: A temporary storage facility for the consolidation and eventual transfer of solid ~vaste to a landfill. Tree, Healthy: A healthy tree is a tree that is vigorously grooving and is free of structural problems such as hollo~vs or voids, free of disease, or insect problems and has a root system that is large enough to support its above ~ound mass. Tree Protection, Permanent: Structural measures, such as retaining ~valls/~vells or aeration devices, that are designed to protect the tree and its root systems throughout its lifetime. Tree Protection Sign: A sign furnished by the City upon approval of a tree survey or tree permit that describes prohibited conduct detrimental to trees. Tree Protection, Temporary: Physical barriers inst~Jled prior to any clearing and grading activity and construction for the purpose of preventing damage to existing trees and understory vegetation and set outside of the root zone of such vegetation for the life of the developments construction. Tree Removal: An act that causes or may be reasonably expected to cause a tree to die including uprooting, severing the main trunk, damaging the root system and excessive pruning. Tree Stand: Contiguous trees ~vhose canopies are generally clustered together. Tree Topping: The severe cutting back of limbs to stubs larger than three inches in diameter within the tree's crown to such a de~ee that removal of the top canopy disfigures and invites probable disease or death to the tree. Tree topping is prohibited. TSC: The Traffic Safety Commission. Ultimate Developed Condition: A fully developed area based on current approved land use plans or "C" factor of 0.6 for remaining undeveloped land in a watershed. Unbuildable Area: All areas outside of building envelopes and within open space. Underbrush: Underbrush may include plant specie with stems of less than i inch DBH that are noxious, non-native, or invasive weeds or specie that are categorized as perennials, vines, shrubs, or that bear thorns or are briars, or that are poisonous through contact with the skin, or any plant on the non- protected plant specie list. Understory: A ~ouping of native, noninvasive low-level woody, herbaceous, or ground covers species with stems less than 1 inch dbh. Undeveloped Floodplains: Areas within the FEMA 100-year floodplain, or other floodplain that is undeveloped and in its natur~J state. Upland Habitat: Areas, a minimum of ten acres is size, that contain remnants of the eastern Cross Timbers Habitat. U.S. Army Corps: United States Amay Corps of En~neers. Use: The purpose or purposes for which land or a structure is designed, arranged, or intended, or to which such land or structure is occupied, maintained, or leased. Vegetation: All plant life; however, for the purposes of this Chapter shall be restricted to mean trees, shrubs, ground cover, annuals, perennials, bulbs, ~asses, vines, and aquatic plants, with the exception of State and Federally protected and endangered vegetative specie which in all cases shall be preserved. Veterinary Clinic: Facility for the temporary boarding and treatment of domestic animals, operated under the supervision of a licensed veterinarian. Vehicle Repair: A business providing vehicle repair and or bodsxvork to the motoring public. Vibration: A periodic displacement of the earth measured in inches. Vision Clearance Area: A triangular area on a lot at the intersection of two (2) streets or a street and a railroad, two (2) sides of which are lot lines measured from the corner intersection of the lot lines for a distance specified in these regulations. The third side of the triangle is a 1/ne across the corner of the lot joining the ends of the other two sides. Where the lot lines or intersections have rounded corners, the lot lines will be extended in a straight line to a point of intersection. Water Related Habitats: Areas designated for wedand, tree and understory preservation and including significant stands of predominately native water related habitat. These areas include wedands. Waterbody: Area that in a normal year has water flowing or standing above ground to the extent that evidence of an ordinary high water mark is established. Wetlands contiguous to the waterbody are considered part of the waterbody. Watershed: The land area(s) that contribute surface runoff or drainage to a water system or body. Wetlands: Jurisdictional wedands as defined by the Federal Clean Water Act and the standards and guidelines in use by the United States Army Corps of Engineer, including the Federal Manual for Identif54ng and Delineating Jurisdictional Wedands. Those areas that are inundated or saturated by surface or ground water (hydrology) at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation, and are (hydrophytes) ~pically adapted for life in saturated soil conditions (hydric soils). Wetlands generally include swamps, marshes, bogs, and similar areas. Wholesale Nurseries: An area xvhere plants are groxvn for transplanting, for use as stocks for budding and grafting, or for sale in large quantities for resale purposes. The business may have up to 50% retail sales in conjunction xvith the xvholesale sales. Wholesale Sales: A business engaged in the sale of commodities in large quantities for resale purposes. Wholesale Storage and Distribution: The storage and distribution of goods and merchandise produced or manufactured off-premises for later shipment to retail or xvholesale distributors. Yard: A required open space located on the same lot as the principal structure, unoccupied and unobstructed except for accessory uses and landscaping. Yard, Front: A yard extended across the full xvidth of and situated betxveen the front lot line and the principal structure 1/ne projected to the side lines of the lot, the depth of xvNch shall be the least horizontal distance between the front lot 1/ne and the structure line. Yard, Rear: A yard extending across the full xvidth of the lot between the rearmost line of the principal structure projected to the side lines of the lot and the rear lot 1/ne, the depth of xvNch shall be the least horizontal distance between the rear I/ne of the principal structure and the rear lot line. In all cases, the rear yard shall be at the opposite end of the lot from the front yard. Yard, Side: A yard between the principal structure and the side lot line, extending from the front yard to the rear yard. The xvidth of the required side yard shall be measured horizontally from the nearest point of the side lot line to the principal structure. A corner lot shall have one front yard and one side yard. (Amended ()rd. No 2004-009, 01/06/2004) AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z04-0033 (Unicorn Lake) Hold a public hearing and consider adoption of an ordinance rezoning approximately 4.7 acres from Neighborhood Residential 2 (NR-2), Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NRMU) zoning districts to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district with an overlay; approximately 23.8 acres from Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NRMU) zoning districts to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district; and approximately 18.6 acres from Neighborhood Residential 2 (NR-2) and Neighborhood Residential 3 (NR-3) zoning districts to a Neighborhood Residential 2 (NR-2) zoning district. The proposed 47.1-acre site is located on the south side of Interstate 35 East, approximately 1,000 feet south of Wind River Lane. The Planning and Zoning Commission recommends approval with the condition that the overlay permit only professional office uses (7-0). BACKGROUND Applicant: Shelton Development Denton, TX The applicant is requesting the zoning change in order to develop the property for residential and commercial uses. The rezoning requests will create three zoning districts, an NR-2 zoning district, an NRMU-12 zoning district, and an NRMU-12 zoning district with an overlay to permit only professional office uses. District 1: The applicant is proposing to rezone approximately 4.7 acres from Neighborhood Residential 2 (NR-2), Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NRMU) zoning districts to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district with an overlay to permit only professional office uses. The overlay to permit only professional office uses simply means that only professional offices will be permitted, and no other uses will be allowed within the NRMU-12 zoning district. District 2: The applicant is proposing to rezone approximately 23.8 acres from Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NRMU) zoning districts to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district. Multi-family uses are proposed. District 3: The applicant is also proposing to rezone approximately 18.6 acres from the current Neighborhood Residential 2 (NR-2) and Neighborhood Residential 3 (NR-3) zoning districts to a Neighborhood Residential 2 (NR-2) zoning district. The applicant has indicated that no development will occur within this zoning district. The following chart summarizes the rezoning request: PROPOSED CURRENT PROPOSED PROPOSED ACREAGE DISTRICTS ZONING ZONING USE NRMU- 12 with an NR-2 & NR-3 District 1 & NRMU 4.7 overlay to restrict Offices multi-family uses District 2 NR-3 & NRMU 23.8 NRMU-12 Multi-Family District 3 NR2 & NR-3 18.6 NR-2 No Development TOTAL 47.1 Public notification and property owner responses are provided in Attachment 3. As of this writing, staff has received two written responses that are neutral to the request and none in favor or in opposition from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Approve with conditions (overlay). 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval with the condition that the overlay permit only professional office uses (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology ofZ04-0033: August 25, 2004, the Planning & Zoning Commission recommends approval of the request with the condition that the overlay permit only professional office uses (7-0). Ordinance 2002-040, adopted February 2002, placed the subject property in the Neighborhood Residential 2 (NR-2), Neighborhood Residential 3 (NR-3), and Neighborhood Residential Mixed Use (NRMU) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Planned Development 20 (PD-20). ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photos 5. Zoning Limitations 6. Public Notification Responses 7. Minutes from the August 25, 2004, Planning & Zoning Commission Meeting 8. Draft Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting to rezone approximately 4.7 acres from NR-2, NR-3 and NRMU zoning districts to a NRMU-12 zoning district with an overlay to permit only professional office uses; approximately 23.8 acres from NR-3 and NRMU zoning districts to a NRMU-12 zoning district; and approximately 18.6 acres from NR-2 and NR-3 zoning districts to a NR-2 zoning district. Existing Condition of Property The subject property is vacam. Adjacem Zoning North: Regional Cemer Commercial Dowmown (RCC-D) zoning district South: Neighborhood Residemial 2 (NR-2) zoning district East: Regional Cemer Commercial Dowmown (RCC-D) and Neighborhood Residemial 2 (NR-2) zoning districts West: Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial 4 (NR-4) zoning districts There are single-family residemial uses adjacem to the western boundary of the subject property (Sundown Ranch Subdivision). The properties to the north and east are undeveloped. The properties to the south are developed (DeNon State School). Comprehensive Plan Analysis The subject site is located in an "Existing Neighborhoods/Infill Compatibility" future land use area. New development in this district should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service, and commercial land uses is allowed. The DeNon Plan defines compatibility as, "The characteristics of differem uses or activities or design which allow them to be located near or adjacem to each other in harmony...Compatibility does not mean the 'the same as.' Rather, compatibility refers to the sensitivity of developmem proposals in maimaining the character of existing developmem" (Page 188). The DeNon Plan idemifies the following Primary Residemial Land Use Principles: Promote a Diverse Housing Stock: The residential component of the Land Use Plan allows all types of people to live in DeNon by allowing a variety of housing types, sizes, and prices. The housing stock should reflect the demographics and economic structure of the community. (Page 35; The DeNon Plan.) Limit Sprawl: The residemial componem of the Land Use Plan should guide developmem patterns that limit sprawl, accommodates projected housing demand, and allows quality high density developmem where it is close to jobs, shopping, schools and transit. (Page 35; The DeNon Plan.) The request to rezone the subject property is compatible with the Future Land Use Plan (Existing Neighborhoods) and is in compliance with the DeNon Plan. Development Review Analysis Transportation Upon platting, a Traffic Impact Analysis will be required. Public Infrastructure The preliminary plat submittal will address how the site will be provided with water and sewer service. Development Code / Zoning Analysis The applicant's proposal will create three new zoning districts: an NR-2 zoning district; an NRMU-12 zoning district; and an NRMU-12 zoning district with an overlay to restrict multi- family uses. District 1: The applicant proposes to rezone approximately 4.7 acres from NR-2, NR-3, and NRMU zoning districts to an NRMU-12 zoning designation with an overlay to permit only professional office uses. The overlay to permit only professional office uses simply means that only professional offices will be permitted, and no other uses will be allowed within the NRMU-12 zoning district. District 2: The applicant proposes to rezone approximately 23.8 acres from NR-3 and NRMU zoning districts to an NRMU-12 zoning district for multi-family uses. The NRMU-12 zoning district allows a maximum density of 12 dwelling units per acre. Based on this proposal, the maximum number of residential units permitted within the district will be 285 dwelling units. The current NRMU zoning district permits a maximum density of 30 dwelling units per acre. Within the NRMU zoning district multi-family uses are permitted only with approval of a specific use permit, and are subject to a limitation (L(4); see Attachment 5). The maximum number of residential units permitted within the existing 17.1 acres of NRMU zoning, with approval of a specific use permit, is 513 dwelling units. In addition to limiting the maximum number of residential dwelling units, the proposed zoning change from NRMU to NRMU-12 will limit the size of commercial development. The NRMU zoning designation permits retail development and professional offices up to 25,000 square feet. The NRMU-12 zoning district limits retail development to 5,000 square feet and professional offices to 10,000 square feet. Note, the residential zoning buffer between the existing neighborhood (Sundown Ranch Subdivision) and the mixed use district decreases with the rezoning. The existing residential zoning buffer between the NR-4 zoning district to the west and the NRMU zoning district is approximately 300 feet. If the request to rezone the property is approved, the buffer will decrease to approximately 135 feet. The decrease is due to a portion of the NR-3 district being incorporated into the proposed NRMU-12 zoning district. District 3: The applicant is proposing to rezone approximately 18.6 acres from the current NR-2 and NR-3 zoning districts by rezoning to an NR-2 zoning district. The applicant has indicated that no development will occur within this zoning district, however, no overlay restricting development has been proposed. It should be noted that portions of the property within District 3 are classified as an Environmentally Sensitive Area (ESA) Upland Habitat. Which means, should residential development occur, the developer will have to preserve 50% of the ESA area (trees). Existing Zoning: District 1 Existing Zoning Acres NR-2 2.1 NR-3 1.76 NRMU 0.8 District 2 Existing Zoning Acres NR-3 6.9 NRMU 17.1 District 3 Existing Zoning Acres NR-2 9.2 NR-3 9.1 NR-2 Proposed Zoning: District 1 Acres Proposed Zoning NRMU- 12 w/overlay to permit only professional 4.7 office uses District 2 Acres Proposed Zoning NRMU-12 23.8 District 3 Acres Proposed Zoning NR-2 18.6 PROPOSED ZONING District 1: NRMU-12 w/overlay to restrict multi-family uses District 2: NRMU-12 District 3: NR-2 NR-2 The following charts summarize the maximum number of residential unites permitted per acre according to the existing and proposed zoning designations: TOTAL CURRENT EXISTING MAXIMUM DENSITY, ZONING ACREAGE dwelling units per acre NR-2 11.3 22 NR-3 17.8 53 NRMU 17.1 513 PROPOSED PROPOSED ZONING PROPOSED MAXIMUM DENSITY, DISTRICTS ACREAGE dwelling units per acre NRMU- 12 w/overlay to District 1 permit only professional 4.7 0 office uses District 2 NRMU- 12 23.8 285 District 3 NR-2 18.6 37 The charts below illustrate the difference among the zoning districts. Limitations for each use are explained below the charts. Single Family Dwellings P P P N SUP SUP Accessory Dwelling Units L(1 ) L(1 ) L(1 ) N N SUP P Attached Single Family Dwellings Dwellings Above Businesses L(40) N N P P Live/Work Units N N P P Duplexes N N P N Community Homes For the P P P P Disabled Group Homes N N SUP SUP SUP Multi-Family Dwellings N N P L(4) Hotels N N N P Bed and Breakfast N N L(10) P Retail Sales and Service N N L(15) L(17) Restaurant or Private Club N N N L(11) Drive-through Facility N N N SUP Professional Services and Offices N N L(14) L(17) Quick Vehicle Servicing N N N SUP Laundry Facilities N N P P Bakeries N N N L(21) Kennels L(37) N N N Veterinary Clinics L(14) N N P SUP SUP SUP Gas Wells L(27) L(27) L(27) L(27) Community Service N N P P Churches P P P P Semi-public, Halls, Clubs, and Lodges SUP SUP L(15) P Business / Trade School N N N L(14) Adult or Child Day Care SUP SUP P P Kindergarten, Elementary SUP SUP P P School Elderly Housing N N L(13) P Medical Centers N N N P Any proposed developmem on this site is required to be in compliance with the site design standards of the Developmem Code. An approved site plan for the proposed developmem will be required prior to the issuance of any building permit. The chart below illustrates the difference among zoning districts, with regard to general zoning district regulations: Maximum density, dwelling units per acre 2 3.5 12 30 15 feet Minimum front yard setback 20 feet L(2) 10 feet None Minimum side yard 6 feet 6 feet 6 feet 6 feet Minimum side yard adjacent to a 10 feet 10 feet 10 feet None street Minimum rear yard 10 feet 10 feet 10 feet None Minimum side yard for non-attached buildings 10 feet 6 feet 10 feet 12 feet Maximum lot coverage 30% 50% 60% 80% Minimum landscaped area 70% 55% 40% 20% Maximum building height 40 feet 40 feet 40 feet 65 feet 10 feet plus 1 foot for each foot of building height above 20 feet 10 feet plus 1 foot for each foot of building height above 20 feet 15 feet plus 1 foot for each foot of building height above 20 feet Minimum yard when abutting a single-family use or district 20 feet plus 1 foot for each foot of building height above 20 feet Limitations: L(2) = For infill lots, the from setback shall be an average of the adjacem lots. Staff Findings · The proposed NRMU-12 zoning districts could serve as transitional zoning between the existing single-family residemial uses (Sundown Ranch Subdivision) and the commercial oriented Regional Center Commercial Downtown zoning district; The zoning change from NRMU to NRMU-12 will decrease the maximum number of permitted residemial dwelling units, as well as limit the size of commercial developmem; The proposed zoning change is compatible with the Existing Neighborhoods Future Land Use designations and is in compliance with the intent of the Denton Plan. Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change. 10 ATTACHMENT 2 Location/Zoning Map Land Use Map NORTH + ,[,111~]--- SITE ATTACHMENT 3 Notification Map Limits of 500' ~,~11111111~1 ,,, ~ ~~ [[[[%[[[[[[[[[[[[[[[[= U[m[ts of 200 · ... . Scale: None Public Notification Date: August 3, 2004 200' Legal Notices* sent via Certified Mail: 16 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 0 · Neutral: 2 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Site Photos ATTACHMENT 5 Zoning Limitations The following limitations regulate the specifics of each use allowed within the zoning district. L(1) = Accessory dwelling units are permitted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residemial structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of L(1).5. 4. One additional parking space shall be provided that conforms to the off-street parking provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residemial structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than ten acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than ten acres. L(2) = For infill lots, the from setback shall be an average of the adjacem lots. L(4) = Permitted as part of a mixed use developmem of ten (10) acres or more and only in conjunction with office, retail or other permitted commercial or institutional uses. L(10) = All restrictions of L(8), but limited to no more than 5 guest units. L(11) = Limited to sit down only, and no drive up service permitted. Limited to no more than 100 seats and no more than 4,000 square feet of restaurant area. L(13) = Uses are limited to no more than 55,000 square feet of gross floor area per lot. L(14) = Uses are limited to no more than 10,000 square feet of gross floor area. L(15) = Uses are limited to no more than 5,000 square feet of gross floor area per lot. An SUP is required for additional square footage for Semi-Public Halls, Clubs and Lodges. L(17) = Uses are limited to no more than 25,000 square feet of gross floor area per use, except grocery stores may be larger with approval of an SUP. L(21) = Bakery and bottling areas not to exceed 2,500 square feet. Sales on premises of products produced required in this zone. L(27) = Must comply with the provisions of Subchapter 89, Gas Well Drilling and Production. L (37) = 5-acre minimum land area required and no more than 25 kennels per acre, including indoor and outdoor runs. Natural buffer strip is required adjacem to any residemial use. L (40) =Limited to a maximum 12 units per acre. ATTACHMENT 6 Public Notification Responses Within 200 feet of subject property: Name & Address In Support, In Opposition, Comments Neutral Keira Franklin 3629 Paint Drive Neutral As long as there will be no building or anything built in tract 3 1 have a neutral feeling to the request. Denton State School Neutral No Comments. Beyond 500 feet of subject property: In Support, In Opposition, Name & Address Neutral Tonya Broadhurst Russell In Opposition 3325 Mustang Drive Comments It has been brought to my attention that an area behind my neighborhood in Sundown Ranch is going through a zoning change. Upon receiving this information I felt I must write to voice my concerns. My daughter who is 5 years old recently started kindergarten at Sam Houston Elementary School, which is on of the main reasons I bought a new home in the single-family neighborhood - I wanted her in a safe neighborhood that was made up of alot (sic) of families & I wanted her in a school that has a great reputation. The area that is in question of rezoning is an area I thought was going to be developed into nice, expensive homes, town center, etc. I was never told it would consist of multi-family homes (apt), commercial uses, businesses, etc. As a new homeowner I wan to protect my quiet neighborhood & do not want the traffic, noise, lights, etc. that would follow such zoning changes. This proposed zoning change is NOT IN THE INTEREST of the families in my neighborhood, nor do I personally like the idea. The character and feel of a neighborhood has much to do with that is located around it - this the old saying "Location, Location, Location." Lets keep a little of the "quiet" that I'm sure all of the families living here appreciate so much and have worked so hard to find in this day & age of needless change for the pursuit of growth or otherwise lets just say money - at someone elses (sic) expense (which is our neighborhood that could possibly suffer from zoning changes). I cannot attend the meeting on 8/25/2004 thus am writing this letter to voice my concerns. I hope the final outcome is a good one for the average person and not a gain for a developer that probably doesn't even live near here. ATTACHMENT 7 City of DeNon Planning and Zoning Commission Minutes August 25, 2004 4. PUBLIC HEARINGS: Hold a public hearing and consider making a recommendation to City Council on the following items: Rezoning of approximately 47.1 acres, consisting of 4.7 acres from Neighborhood Residemial 2 (NR-2), Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial Mixed Use (NRMU) zoning districts to a Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning district with an overlay; approximately 23.8 acres from Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial Mixed Use (NRMU) zoning districts to a Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning district; and approximately 18.6 acres from Neighborhood Residemial 2 (NR-2) and Neighborhood Residemial 3 (NR-3) zoning districts to a Neighborhood Residemial 2 (NR-2) zoning district. The proposed 47.1-acre site is located on the south side of Interstate 35 East, approximately 1,000 feet south of Wind River Lane. (Z04-0033, Unicom Lake, Chris Fuller). Larry Reichhart, Assistant Director of Planning and Development, stated Unicorn Lake was broken down into 3 districts. District one is 4.7 acres converting to NRMU-12 uses allowed with an overlay prohibiting multi-family. District two converting to NRMU-12 zoning allowing 12 units per acre. District three is 18.6 acres converting to NR-2 zoning. Staff recommends approval. Commissioner Roy questioned connectivity to Clubhouse Drive. Larry Reichhart, Assistant Director of Planning and Development, stated connectivity will be brought through the site and connect with Wind River. Mark Donaldson, Carter and Burgess, stated request to create zone districts to allow small office The upland habitat will help create a buffer due to the fact that 50% must be preserved. Commissioner Roy questioned the depth of the green area backing up to the homes? Mark Donaldson, Carter and Burgess, stated the minimum depth of 135 feet west and 150 feet south. Commissioner Holt questioned why there was no overlay in District three restricting developmem? Mark Donaldson, Carter and Burgess, stated if NR-2 was fully developed then NRMU-12 would be preserved and vice versa. Brad Shelton, 3300 Sundown Blvd, Denton, stated he was there to answer any questions. Kevin Ware, 3412 Mustang, Denton, stated two concerns. Changing NRMU to MRMU-12 would reduce the amount of buffer zone and any developmem in NRMU would require a SUP with limitation of mixed use, NRMU-12 would bypass additional review and allow multi-family without a SUP. Esther Williams, 2717 Clubhouse Drive, Demon, questioned procedures for signage and property owner notification for neighborhood meetings. Kelly Carpenter, Director of Planning and Development, stated back up did show where the signs were posted and that staff encourages the developer to meet with the neighborhood but does not require them to. Matt Bowler, 2704 Hollow Ridge, Demon, stated he was the Vice Presidem of the Home Owners Association and a last minute meeting was held the night before. He questioned if an overlay in district one could restrict office use only or multi-family use. He stated Mr. Shelton agreed to say office use only. He also questioned if the density would transfer from the lake onto the land. Kelly Carpenter, Director of Planning and Development, stated yes, density would transfer. LaVelle Dickens, 2717 Crater Lake Lane, Demon, questioned why the roads were not included by stall? His big concern was buffering. Bob Shelton, 3300 Sundown Blvd, Demon, stated they warn to build an office building and they were not sure about future development. Kelly Carpenter, Director of Planning and Development, questioned if Mr. Shelton agreed to restrict the use to office use only? Bob Shelton, 3300 Sundown Blvd, Denton, stated yes he did agree to that restriction. Larry Reichhart, Assistant Director of Planning and Development, stated the motion should be stated as "Professional Services / Offices". Commissioner Strange wanted to clarify that the transportation plan does not affect this tract of property. Kelly Carpenter, Director of Planning and Development, stated that State School Road and Unicorn Lake Blvd are not on this property Commissioner Thibodeaux questioned if NRMU-12 would be placing restrictions on District one or District two? Larry Reichhart, Assistant Director of Planning and Development, stated District one. Commissioner Roy motioned to recommend approval with a condition on District one of professional service / office use. Commissioner Strange seconded. Motion carried 7-0. Attachment 8 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FOR APPROXIMATELY 47.1 ACRES OF LAND GENERALLY LOCATED ON THE SOUTH SIDE OF INTERSTATE 35 EAST, APPROXIMATELY 1,000 FEET SOUTH OF WIND RIVER LANE IN THE CITY OF DENTON, DENTON COUNTY, TEXAS WITHIN THE M,E.P, & P.R.R. SURVEY, ABSTRACT NO. 950, WiTH APPROXIMATELY 4.7 ACRES BEING CHANGED FROM NEIGHBORHOOD RESIDENTIAL 2 (NR-2), 'NEIGHBORHOOD RESIDENTIAL 3 (NR-3) AND NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICTS TO A NEIGHBORHOOD RESIDENTIAL MIXED USE 12 (NRMU-12) ZONING DISTRICT WITH AN OVERLAY FOR PROFESSIONAL OFFICE USES ONLY; APPROXIMATELY '23.8 ACRES BEING CHANGED FROM NEIGHBORHOOD RESIDENTIAL 3 (N~-3) ~ NEIGI-IBORHOOr) PmSIDENTL~L MIXED USE (NRMU) ZONING DISTRICTS TO A NEIGHBORHOOD RESIDENTIAL MIXED USE 12 (NRMU-12) ZONING DISTRICT; AND APPROXIMATELY 18.6 ACRES BEING CHANGED mOM NEI6HBOaHOOD RESID~NT~2L 2 (NR-2) A~ N~IO~m ORI-IO0~) RESIDENT~',L 3 ZONING DISTRICTS TO A NEIGHBO1LHOOD RESIDENTIAL 2 (NR-2) ZONING DISTRICT.; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR WOL^TIONS TIn,REeF, A SEVERABmrr¥ CLAUSE ~ AN ~,FFECTrW. (Z04-0033) WHEREAS, Shelton Development has applied for a change in zoning for approximately 47.1 acres of land located on the south side of Interstate 35 East, approximateIy 1,000 feet south of Wind River Lane with approximately 4.7 acres more particularly described as Tract 1 in Exhibit"A" attached hereto and made a part hereof by reference (the "Tract 1 Property") being changed from Neighborhood Residential 2 (NR-2), Neighborhood Residential 3 0qR-3) and Neighborhood Residential Mixed Use (NRMU) to Neighborhood Residential Mixed Use 12 (NRMU-12) with an overlay for professional office uses only (the '`Tract 1 Property Zoning Change"); with approximately 23.8 acres more particularly described as Tract 2 in Exhibit "A" (the "Tract 2 Property") being changed from Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NtLMU) to Neighborhood Residential Mixed Use-12 (NRMU-12); and approximately 18.6 acres more particularly described as Tract 3 in Exhibit "A' (the "Tract 3 Property") being changed from Neighborhood Residential 2 (NR-2) and Neighborhood Residential 3 (NR-3) to Neighborhood Residential 2 (NR-2); and WHEREAS, on August 25, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, with respect to the Tract 1 Property Zoning Change, the City Council makes the following findings The change in zoning, including the overlay district, is consistent with the Comprehensive Plan; The overly district will protect and enhance the Tract 1 Property and surrounding area which are distinct from lands and structures outside of the overlay district and the immediate neighborhood; and Co The regulations imposed in the overlay district serve important and substantial public interests by preserving the integrity and of the neighbor:hood surrounding the overlay district while offering a different type; NOW, TI-IEKEFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The zoning district classification and use designation of thc Tract 1 Property is hereby changed from Neighborhood Residential 2 (NR-2), Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NRMU) zoning districts to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district with an overlay allowing for Professional Office Uses only; the Tract 2 Property is hereby changed from Neighborhood Residential 3 (NR-3) and Neighborhood Residential Mixed Use (NRMIJ) zoning districts to a Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district; and the Tract 3 Property is hereby changed from Neighborhood Residential 2 (NR-2) and Neighborhood Residential 3 0',YR-3) zoning districts to a Neighborhood Residential 2 (NR-2) zoning district. SECTION 3. The City's official zoning map is amended to show the change in zoning district classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance axe severable. SECTION 5. Anyperson violating any pro, sion of this ordinance shall, upon conviction, be fined a stun not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2004. BULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: PAGE 3 Exhibit A · ZONING DESCRIi'TION TRACT 1 RF_AL PROPEKTY RECORDS, D]~NTON COUNTY, TEXAS. SAID 4.669 ACRE 'TRACT WITH BEARING BASIS BEING A WI~ST LINE OF SAID WINDJAMMER, LTD. TRACT AND THE FAST LINE OF WIND RIVEK ESTATI~S, PHASE ? AND ' ' ADDITION TO TI:fB CiTY'OF DENTON RECORDED IN CAB/NST P, PAG~ 151, PLAT RECORDS, DENTON COUNTY, T]~XAS, BEING MOKE PARTIC~Y 'DESCIIlBHD BY ~'TES AND BOUNDS AS FOLT.~WS: coa°m~czN(~ AZ zm~ sorPr~x' comq~ oF bro. m.~.cr ~ TH~'. EASt UN~ O]* SUNDOW~ RANCa ~F_XS~ ~ RECORDED IN CABINET R, PAGE 269-271, MAP RECORDS, DENTON COUNTY, TEXAS. AND A NORTHWEST CORNER OF X 20135 ACRE TRACT OF LAND. mzscmmm> IN rmZD To STAT~ O~ TmrAS. m~coRmrD IN VOI,UM~ ~^~Z m, ~mJ m~coRDs. Dm,row corm'r'/, mXAS; ~m~ ~o~ra oo ~zo~_mS 27 .rmjums s~ s~coNDs ZAS~}AnO~O~ .Win? nn, m oF sam wmro~~, LTD. TRACT. A DmTANCB OF ~ O7437 mmwo r~m ~,om~ o~ BEING A 4.669ACRE TRACT OF lAND SITUATED ]lq TI~ M.B1~. ~: P.1L1L SURVEY,'ABSTRACT NO. 950, IN THE CITY OF DIe, TON, DENTON COUNI~, TEXAS AND BEING A PART OF A TRACT OF LAND DESCRIBED IN DEED TO WINDJAJvfMER, LTD., RECORDED IN COUNTY CLERK'S FILE NO. 98-R0093041, 'TI~NCE NORTH 00 DBGR]~S 27 MINUTES 31 SECONDS EAST, CON'TINUING ALONG TI~ WEST LINg OF SA/D WINDJAMMER, LTD. TP,.ACT AND ~ COMMON EAST LII~ OF'SAID SUNDOWN RANCH, PI4_ASI~ 2, A DISTANCE OF 712.44 FI~ET TO A POINT FOP,. CORNSR; - m~c~ ow~ ~ ACross s)~rr~ wmr)J~~ Lr~. ~cr'r~ FOLLOWING COUP-SES AND DISTANCES: SOUTH 56 DEGREES 05 MINUTES 12 SECONDS EAST, A.DISTANCB OF $47.50 FleET TO A POINT FOR CORNF_,R; SOUTH 27 DEGREES 31 MINUTES 14 SF_~ONDS W~ST, A DISTANCE OF 216,24 FE~T TO A POINT FOR CORNER AND BEING THE BEGINNING OF ' A TANGENT CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 62 DEGREES 28 MINUTES 33 SECONDS, A RADIUS OF 400.00 FEET, AND A LONG CHORD THAT BM. ARS SOUTH 58 DEGRE]~S 45 IVIES 31 SECONDS WEST, A DISTANCE OF 414.$7 FleET; h'GLD~.UNICORN%02 lgllsfl V',sdam~-.ONING TIKACT l.,~oc 7/28/2004 PaS~ I afl '- ALONG SA~ TANOENT CURVE TO THE RIOHT, AN ARC DISTANCE OF Z;36. I6 FEET TO A P0INT FOR CORNF2~ SOUTH 89 DEGREES 59 MINI3TES'47 S]SCONDS W~ST, A DISTANC~ OF 5.44 FEET TOTHE PblNT O1~ BEGINNrN(~ AND CONTAINING4.669 ACR.ES OF LAND, MORE OR t:'~LD\UNICOKN~2 ! 98501%~llm~ONi~G TR.%CT ].~: . 7,'28J~004 ~'~g¢ 2 of 2 ZONING DESCRIPTION TRACT 2 BEING A 23.809 ACRE TRACT OF LAND SITUATED IN TI~ M.~P. & SURVEY, ABSTRACT NO. [}50, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS AND BEING A pAKT OF A TRACT OF I..A2qD DESCRIBED IN DEED TO WINDJA.MM~R, LTD., P,.ECORDF. D IN COUNTY CL.KRK',q FILE NO. 98-R0093041, REAL PROPERTY RECORDS, DENTON COUNTY, .TEXAS. SAID 23.809 ACRE TRACT WITH BEARING BASIS Bt~ING A WEST ~ OF SAID WINDJAblMI~K, · LTD. TRACT AND THE EAST LII~ OF WlND RIVER ESTATES;PHASE 7 AND ADDITION TO THE crry OF DENTON KI~CORDP.,D IN CAB]NET P, PAGE 151, PLAT RECORDS, DKNTON COUNTY, TEXAS, BEING MORM PARTICULARLY DESCRIBED BY lvI~TES AND BOUNDS AS FOLLOWS: COMMEN~NG AT THE SOUTHW1~ST CORNI~ OF AFORBSA/D WINDJ~ LTD. TRACT AND THE EAST LINE OF SUNDOWN RANCH PHASE 2, RECORD]~I) IN CABINET R, PAGE 269-271, MAP RI~CORDS, DENTON COUNTY, TEXAS AND A NORTHWEST CORNER OF A 201..3~t ACRE TRACT OF LAND DESCRIBED IN DEED TO STATE OF TEXAS, KECORDED IN VOLUME 435, PAGE I2, DRRB RECORDS, DISWTON COUNTY, TEXAS; THENCE NORTH 00 DEGREES 27 M/NUTES 31 SECONDS FAST, ALONG THE WEST LINE OF SAD WINDIAMMER, LTD. TRACT, A DISTANCI~ OF 1074.37 FEET TO A POINT FOR CORNEPq THENCE OVER AND ACROSS SAID WINDJ~ LTD. TRACT ~ FOLLOWING COURSES AND DISTANCFS; NORTH 89 DI~GtLEES ~9 MINUTES 47 SECONDS EAST, A DISTAN~/E O1~ 5.44 FEET TO A POINT i~OK CORNER. AND BEING II-IE BEGINND?G OF A TANGENT CURVE TO THE !.Rwr HAVING A CENTRAL ANGLE OF 17 DEGREES 20 MINUTES 22 SECONDS,.A RADIUS OF.400.00 FEET,. AND A LONG CHORD THAT BEARS NORTH 8 ! DEGRF~S 19 MINUTES 36 SECONDS FAST, A DISTANCE OF 12039 FEET; ALONG SAID TANGENT CURVE TO THE LEFT, AN ARC DISTANCE OF 121,05 FEET TO THE POINT OF BEGINNING AND BEiNG THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A CENTRAL ANGLE OF45 DF_,GRF.~S 08 NfINU~ 11 SECONDS, A RADITJS OF 400.00 FI~ET, AND A LONG CHORD THAT B~.ARS NORTH 50 DEGREES 05 MINrUTES 20 SECONDS EAST, A DISTANCE OF 307.03' FEET;' I:~;LD%UNICO I134',.02198~01 '~amV_X]N131G TRACT 7;'2gr200n PAS,: 1 o1'3 ALONG SAID TANGENT CURVE TO THE LEFT, AN ARC DISTANCE OF 315.11 TO A POINT FOR CORNF, R; THENCE CONTINUING OVP, R AND ACROSS SAiD W]ND~AMME~ LTD. ~CT THE FOLLOWING CORSES AND DISTAN.CF, S: NORTH 27 DEGRBF_8 3I MINUT~ I4 SECONDS FAST, A DISTANCE OF 21'6.24 FEET TO A POINT FOR CORN~P,4 SOUTH 56 DEGREES 05 MINUTES 12 SECONDS EAST, A DISTANCE OF' 651.07 FEET TO A POINT FOR CORNER; SOUTH 33 DEGREES 56 MINUTES 25 SECONDS EAST, A DISTANCE OF 619.52 FEET TO A POINT FOR CORNER; SOUTH 49 DEGREF. B 06 MINUTES 01 SECONDS.WI~ST, A DISTANCE OF ~;I7.77 FEET TO A POINT FOR CORNF.~; . · SOUTH 06 DEGREES 50 MINUTES 44 SECONDS WNST', A DISTAlgCE OF 109.41 FEET TO A POINT. FOR CORNEI~ . SOUTH 54 DEGREES 01 M/NUTES 55 SECONDS WEST, A DISTANCE OF 1 I7.67 FEET TO A POINT FOR COP, NF, R: SOUTH 89 DEGREES 49 MINUTES 43 SECONDS WEST, A DISTANCE OF 286.46 FEET TO A POINT FOR CORNER; THENCE NORTH 65 DEGKI~S 35 MINUTES 29 SECONDS WEST, A DISTANCE OF 362.99 FEET TO A POINT FOR CORNER AND BEING THE BEGINNING OF A TANGENT CURVE TO THE RIGHT HAVING CENTRAL ANGLE OF 47 DEGREES 22 MINUTES 44 SECONDS, A RADIUS OF '100.00 FEET, AND A LONG CHORD THAT BEARS NORTH 41 DEGREES $4 MINUTES 08 SECONDS WEST, A DISTANCE OF g0.36 FEET; ALONG SAID TANGENT CURVt~ TO THE RIGHT, AN ARC DISTANCE OF 82.69 FEET TO A POINT FOR CORNrKR;~ NORTH I $ DEGREES 12 MINUTES 46'SECONDS WEST, A DISTANCE OF 353.14 FEET TO A POINT FOR CORaNER AND BEING ~ BEGINNING OF A TANGENT CURVE'TO THI~ RIGHT HAVING A CENTRAL ANGLE OF 1 $ DEGREES 12 MINUTES 46 SECONDS, A RADIUS OF 330.00 FEET, AND A LONG CHORD THAT BEARS NORTH 09 DEOR_E~S 06 MIN~TES 23 SECONDS WEST, A DISTANCE OF 104.46 FEET; .ALONG SAID TANGENT CURVE TO THE PJGHT. AN A-KC DISTANCE OF 104.90 FEET TO A POINT FOR CORNF3~ i:%8LD~UNICO R2q~ 19850 l~dam%ZONINO TRA,C~ ?/2gt2004 NORTH 00 DEGKI~ES 00 MINUTF. S 00 SECONDS FAST, A DiSTANCB OF 7-92.20 FEET TO THI! POINT OF BEGINNING AND CONTAINING 2~.g09 ACRES OF LAND, MORE OR L~g$. ]':~S LD~Ulq 100, tLl'/~2 ! ~8$01~sdala'~.ONlNG TRACT Pa~e :3 ZONING DESCRIPTION 'TRACT3 BEING A 18.566 ACRE TRACT OF LAND'SITUATED IN THE M.B.P. & P.P,.1L SUR.VE¥, ABSTRACT NO.'950, IN ~ CITY OF DENTON, DENTON COUNTY, TEXAS AND .BEING A PART OF A TRACT OF LAND DESCR/BED IN DEED TO WINDIER, LTD., RECORDED IN COUNTY eL .~RK'S FII,B NO. 98-R009304I, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS. SAID 15.566 ACRE TRACT ~ BEARING BASIS BEING A WEST LINE OF SAID WINDIAMMEP,, LTD. TRACT AND THE EAST LINE OF WIND RIVER ESTATP~, PHASE 7 AND ADD1TION TO THE CITY OF DENTON R]]CO'RDED 1N CABINET P,'PAGE 151,. PLAT. R.~/CORDS, DENTON COUNTY, TEXAS, BF. ING MOP~ PAKTICLEARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT ~ SOUTHWEST CORA~ OF AFORESAID WINDJAMMER, LTD. TRACT AND THE FAST .LINE OF SUNDOWN RANCH PHASE 2, RECORDED iN CABINET 1%, PAGE 269-271, MAP RECORDS, DENTON COUNTY, TEXAS AND A NORTHWF. ST COP, Nt~ OF A 201.38 ACRE TRACT OF LAND DF. SCRIBED IN DEED TO STATE OF TEXA~, RECORDED IN VOLUME 435, PAGE 12, DEED RtlCORDS,.DENTON COUNTY, TF. XAS; THENCE NORTH 00 DBGi?.EES 27 MINUTBS 31 SECONDS EAST, ALONG THE WEST ~ OF SAID WINDJAMMtIR, LTD. TRACT, A DISTANCE OF 1074.37 FBET TO A POINT FOR coRNER; .. 'THENCB OVER AND ACROSS SAID WINDI~ LTD. TRACT THE FOLLOWING DISTANCES AND COURSES: .- NORTH 89 DIEGREES 59 MINUTES 47 SECONDS EAST, A DISTANCE OF $.44 FEET TO A POECf FOR CORNER AND BEING THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A CE~ ANGLE OF 17 DEGR-~ES 20 MINUTES 22 SECONDS, A RADIUS OF 400.00 FEET, AND A LONG CHORD THAT BEARS NORTH. 81 D]~GP.C~S 19 M]/qUTES 36 SECONDS EAST, A DISTANCE OF 120.59 FEET; ALONG SAID TANGENT CURVE TO THE LEFT, AN ARC DISTANCE OF 121.05 FBBT TO ;/POINT FOR CORNHR; SOUTH 00 DBGKEES 00 MINUTES Od.sECoNDS EAST, A DISTANCE OF 292.20 FEET TO A POINT FOR CORNER AND BEING THE BEGINNING OF A TANGENT CURVE TO THE LEFT HAVING A ~L ANGLE OF ! 8 DEGREES 12 MINUTES 46 SECONDS, A RADIUS OF 330.00 FEET, AND A LONG CHORD THAT B]SARS SOUTH 09 DEGKE]SS 06 MIKUTES 23 SECOND.S EAST, A DISTANCE OF 10z[.z~ FEET; I.'~[.D~JN ICOI~N~2 ! 98~0 I~au%ZONINO TRACT Pa~; 1 ~f2 ALONG SAID TANGENT CLrP, VE TO THE LEFT, AN ARC DISTANCE OF 104.90 FEET TO A POINT FOP. COP, NF~ SOUTH 18 DEGKF_.ES I2 MINUTES 46 SECONDS EAST, A DISTANCI~ OF 353. t4 FEET TO A PO~ FOR ~K ~ B~G ~ BEG~G OF A T~GB~ C~ TO ~ L~T ~G A ~ ~G~ OF 47 DEGAS ~ ~ 44 S~O~S, A ~S OF 100.00 ~, ~ A LONG CHO~ ~T B~ SO~ 41 DE~ 54 ~S 0g SECO~S E~T, A DIST~ OF 80.36 F~;.' ALONG SAID TANGENT CURVE TO THE LEFT, AN ARC DISTANCE OF 82.69 I~ET TO A POINT FOR CORNER; . · SOUTH 65 DEGR~RS 35 MINUT~.$ 29 SECONDS ]~AST, A DISTANCE OF 362,99 FEET TO A POINT FOR CO~ NORTH 89 DEGREES 49 MINt/rES 43 SECONDS EAST, A DISTANCE OF 286.46 Fi~ET TO A POINT FOP. CORNER; NORTH 54 DEGREES 01 MINLrCBS 55 SECONDS F_~ST, A DISTANCE OF 117.67 FEET TO A t~OINT FOR CORNER; NORTH 06 DEGP~ES 50 MIN[J~S 44 SECONDS FAST, A DISTANCE OF 109.41 FEET TO A POINT FOR COKN~P,; NORTH 49 DBOI~E~$ 06 MINUTES 01 SECONDS FAST, A DISTANCI3 OF 417.77 FEET TO A POINT FOR CORNER; ... SOUTH 79 DEGREES 51 M/NUTES 56 S]~C6NDS FA, ST, A D/STANCE OF 558.97 F~T TO A POINT IN TH~ EAST ~ OF SAID WIND2fAMMBP~ LTD. TRACT AND A WEST LINE OF AFOKF. SAD STATE OF ~ TRACT; THENCE SOUTH 02 DEGREES z[3 MINUTES 43 SECONDS WI~, ALONG TIlE BAST LINE OF SAID WINDJAMMER, LTD. TRACT AND THE .WEST ~ OF SA/D STATE OF TEXAS .TRACT, A DISTANCE OF 500.64 FEET TO A POINT IN THE SOUTHEAST CORNER OF SPdD WINDJAMMeR,LTD. TRACT AND A NORTH~t~ST CORNER OF SAID STATE OF TEXAS TRACT; TI-IENCE SOUTH 89 DEGR~S 49 MINUTES 43 SECONDS v~rEST, ALONG THE SoIYrH LINE OF SAID WlNI)~AMME. R, LTD. TRACT AND TPiE NORTH LINE OF SAID STATE OF TEXAS TRACT, A DISTANCE OF 1~1.30 FEET TO THE POINT OF BEGINNING AND CONTAINING 18.566 ACP. F~ OF LAND, MOR~ OK LESS. I:~Li)tUNICO}LNt0219{~ml%~:lam~O)q~G TR.A'CT 7~004 P~9~ 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 21, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z04-0030 (2401 West Oak StreeO Hold a public hearing and consider adoption of an ordinance regarding the rezoning of approximately 3.6 acres from a Dowmown Residemial 2 (DR-2) zoning district to a Dowmown Commercial General (DC-G) zoning district. The property is located approximately 300 feet west of Bonnie Brae, on the south side of Oak Street. The Planning and Zoning Commission recommends approval (6-0). BACKGROUND Applicam: 2401 West Oak Ltd. DeNon, TX The applicant is requesting to rezone the property for medical center uses. The Development Code defines medical cemers as walk-in facilities for medical, obstetrical, or surgical care limited to day use only. Based on the currem Dowmown Residemial 2 (DR-2) zoning designation, medical offices are allowed only with an approved specific use permit. The Dowmown Commercial General (DC-G) zoning designation permits medical offices with no limitations. Commercial, residemial, and institutional uses, including hospitals, medical offices, professional offices, and multi-family uses, are located in the vicinity of the subject property. Dowmown Commercial General (DC-G) and Dowmown Residemial 2 (DR-2) zoning districts are located to the north and east of the property. Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has received two written responses in favor and none in opposition 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 (6-0; Commissioner Strange abstained). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology of Z04-0030: August 11, 2004, the Planning & Zoning Commission recommended approval (6-0) of the request to rezone approximately 3.6 acres from a Downtown Residential 2 (DR-2) zoning district to a Downtown Commercial General (DC-G) zoning district. Ordinance 2002-040, adopted February 2002, placed the subject property in the Downtown Residential 2 (DR-2) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Multi-Family 2 (MF-2). ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photos 5. August 11, 2004, Planning & Zoning Commission Meeting Minutes 6. Draft Ordinance Prepared by: Chris Fuller Planner I Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicant is requesting to rezone approximately 3.6 acres from a Downtown Residential 2 (DR-2) zoning district to a Downtown Commercial General (DC-G) zoning district. The requested zoning change would allow the applicant to develop medical offices. Based on the current Downtown Residential 2 (DR-2) zoning designation, medical offices are allowed only with an approved specific use permit. Existing Condition of Property The subject property is developed, though current structures are in the process of being razed. Adjacent Zoning North: Downtown Commercial General (DC-G) and Downtown Residential 2 (DR-2) zoning districts South: Downtown Commercial General (DC-G) zoning district East: Downtown Residential 2 (DR-2) zoning district West: Downtown Commercial General (DC-G) zoning district The property to the immediate north is developed for multi-family uses. The properties farther to the north are developed for hospital, medical center and professional office uses. The properties to the east are developed, with the Denton Municipal Utilities Hickory Electric Substation and a convenience store. The properties to the south and west are zoned Downtown Commercial General (DC-G) and are developed as multi-family uses. Comprehensive Plan Analysis The subject site is located in the "Downtown University Core District" future land use area. This area is intended to have a mix of educational, residential, retail, office, service, government, cultural and entertainment development. It is a place where residents can live, work, learn, and play in the same neighborhood. The proposed institutional facilities are compatible with the Downtown University Core District uses as stated within the Denton Plan. The development of medical offices will complement the existing institutional uses in the area, while adding to the mix of residential and non-residential uses. The request to rezone the subject property is compatible with the Future Land Use Plan (Downtown University Core) and with the surrounding zoning designations. The proposed zoning change is in compliance with the Denton Plan. Development Review Analysis Transportation Access to the property is limited to Oak Street. Public Infrastructure Adequate utilities capacity exists to serve the proposed use. Development Code / Zoning Analysis The Downtown Residential 2 (DR-2) zoning district is intended to primarily address residential uses. While non-residential uses are permitted within the DR-2 zoning district, most are restricted with some type of limitation. The Downtown Commercial General (DC-G) zoning district permits a broad array of uses, most with no limitations. The chart below illustrates the difference between the two zoning districts. Limitations for each use are explained below the chart. Single Family Dwellings P N Accessory Dwelling Units P N Attached Single Family Dwellings P P Dwellings Above Businesses P P Live/Work Units P P Duplexes P N Community Homes For the Disabled P P Multi-Family Dwellings L(5) L(5) Community Service N P Semi-public, Halls, Clubs, and Lodges P P Business / Trade School N P Adult or Child Day Care P P Hospital N P Elderly Housing N P Medical Centers SUP P Mortuaries N P Hotels N P Bed and Breakfast L(9) P Retail Sales and Service L(15) P Movie Theaters N SUP Restaurant or Private Club N P Drive-through Facility N SUP Professional Services and Offices L(15) P Quick Vehicle Servicing N SUP Vehicle Repair N SUP Auto and RV Sales N L(20) Laundry Facilities P P Indoor Recreation N P Major Event Entertainment N SUP Commercial Parking Lots N L(28) Administrative or Research Facilities SUP P Broadcasting of Production Studio SUP P Printing / Publishing N P Bakeries N P SUP / Wholesale Sales N L(36) SUP / Wholesale Nurseries N L(36) Veterinary Clinics SUP P Printing / Publishing N P Limitations: L(5) - Within this district the density of apartments will be calculated as one bedroom equating to .5 units. L(9) - All restrictions of L(8), but limited to no more than 15 guest units. L(15) - Uses are limited to no more than 5,000 square feet of gross floor area per lot. An SUP is required for additional square footage for Semi-Public Halls, Clubs and Lodges. L(20) - Permitted, but outdoor storage of autos prohibited. L(28) - Use allowed as part of consolidated parking plan. L(36) - Permitted when combined with retail sales. The limitations listed above regulate the specifics of each use allowed within the zoning district. Any proposed development on this site is required to be in compliance with the site design standards of the Development Code. An approved site plan for the proposed development will be required prior to the issuance of any building permit. The chart below illustrates the difference between the two zoning districts, with regard to general zoning district regulations: Minimum lot are (square feet 4,000 None Minimum lot width 40 feet None Minimum lot depth 80 feet None Minimum front yard setback 10 feet None Minimum side yard 6 feet None Minimum rear yard 10 feet None Maximum density, dwelling units per acre 30 150 Maximum lot coverage 75% 85% Minimum landscaped area 25% 15% 100 feet/ Maximum building height 45 feet L(33) Limitations: L (33) = Additional height may be allowed with an SUP and a viewshed study, which illustrates that any views of the Historic Courthouse are not blocked by the new structure(s) additional height. Staff Findings The proposed zoning change is compatible with neighboring zoning designations, and is in compliance with the intent of the Denton Plan. Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change. ATTACHMENT 2 Location/Zoning Map NORTH Land Use Map Neighborhood Center ATTACHMENT 3 Notification Map NORTH Limits of 500' Notification In Favor Limits of 200' Notification Scale: None Public Notification Date: July 27, 2004 200' Legal Notices* sent via Certified Mail: 7 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 2 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Site Photos 1 2 3 4 $ 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 CondenseltTM Page 13 COMMISSIONER POWELL: 4A. I will open the public hearing. Excuse me, I will not open that public hearing yet because Mr. Strange needs to rccuse himself from thi~ issue for a conflict of interest. MR. SI,rYDER: /,nd for thc record, he has filed the appropriate affidavit with the keeper of the minutes of the meeting. COMMISSIONER POWELL: I have an announcement to make. It has been just made clear to me that I should point out that Mr. Fuller has received a recent promotion to Planner 2. Good for you, sir. MR, FULLER: Thank you. COMMISSIONER POWELL: NOW, I'll open the public hearing one more time. And it is for 4A, rezonlng of approximately 3.6 acres of Downtown Residential Zoning District to Downtown Co~mnercial Zoning District. Property is located approximately 300 feet west of Bonnie Brae on the north side of Oak Street. Mr. Fuller, MR. FULL£R: Thank you. The applicant is requesting to rezone approximately 3,6 acres from the Downtown Residential 2 Zoning District and Downtown Conunercia[ General Zoning Disrict. Medical offices are proposed. Within the OR-2 zoning district, medical offices are pemfitted only with approval of a Specific Use Page 14 Permit. The DCG zoning District permits medical offices with no limitations. Comrnercial, residential and institutional uses including hospitals, medical offices, professional offices and multi-family uses are located in the vicinity of the property, Staff has received one written notice in favor of the proposal and none in opposition. The proposed zoning is in compliance with the intent of the Denton Plan as the institutional uses will complement the existing institutional uses and will bring the zoning into compatibility with the other zoning districts. Staff recmmnends approval. Thank you. COMMISSIONER POWELL: Thank you. Any questions of staff from up here? Seeing none, this is a public hearing. I'll ask if anybody wants to speak on this issue? If you'd come forward, sir, and give us your name and address. MR. ARTHUR: My name is David Arthur, 3520 Belmont in Denton, Texas. COMMIfiglONEIt POWELL: thank you, sir. MR, ARTHUR: Thank you. Appreciate the opportunity to speak to you. I brought this and I'm not sure that I need it. COMMISSIONER POWELL: ArO yell speaking in favor or against or -- ~LANNING AND ZONING AUGUST 11TH, 2004 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 i15 16 17 18 19 20 21 22 23 24 25 Page 15 MR. ARTHUR: In favor. I'ra a part of the partnership who's willing to develop this. We've purchased this property and torn down the old apartments that were there and we'r~ looking to build medical facilities to support the new medical district. And I'm lmlly here just to answer any questions if you have any. I do have a couple of points I would like to make if I can put this up here. I don't know that you can read though. COMMISSION',ER POWELL: They can hone in on that, I think, sir. MR. ARTHUR: Can you zoom out? I can just read it if you'd like, COMMISSIONER POWELL: nrhat would be fine, sir. Be sine to speak into the mike, though. MR, ARTHUR: okay. We'd request -- we · requested the zoning change from DR-2 to DCG tO match the surrounding properties. There are several properties around us that ahv~ady have this existing zoning. You may be aware of that already. This will allow us to build up to 10,000 square foot buildings and that's what we would like the flexibility to be able to do. We've designed buildings. We've designed eight lots on our plat to go anywhere from 5,000 square feet up to 10,000 square feet buildings specifically to be 1 2 3 4 5 6 7 8 9 i0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 16 used for doctors' offices or support facilities for thc hospital. And then we believe this would be an attractive alternative to the previous use that was on the land which was apartments. And I don't know if any of you will remember the apartments that were flaere, but they were quite an eyesore. I think they'll be an asset. And what we're going to do is going to be a real asset for Denton. It also will increase the values on the property rolls. And, finally, will be providing additional office space for the hospital needs for the new hospital district. So if you -- does anyone have any questions I can answer for you? COMMISSIONER POWELL: DO We have any questions for the speaker? Yes, Mr. Roy. COMMISSIONER ROY: SO tile buildings that are on the site now are going to be removed? It looks tike they're being demolished at this time; is that correcff MR. ARTHUR: YeS, sir. They are in the process of being demolished already. COMMISSIONER P, OY: SO you'll be building something from scratch? MR, ARTHUR: That's right. Once we clear Page 13 -Page t6 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 1 2 3 4 5 6 7 8 9 10 i1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 the existing buildings, then we are going to be building new facilities. COMMISSIONER ROY: Our backup says that access to the property is off of Bonnie Brae. That doesn't seem right. MR. ARTHUR: well, you turn -- I don't know if we can put thc map back up there that was there. Can we get this map back up there? I think it's better. Bonnie Brae runs, of course, north and south on the east side of the property, but the property running fight in front of the property is West Oak heading over to the interstate, and that's the street that runs just on the south side of the new hospital. COMMISSIONER ROY: So thc access to your property will be as it is now, it's accessed off of West Oak, not off of Bonnie Brae? MR. ARTHUR: That is correct. COMMISSIONER ROY: You're not proposing some new access to Bonnie Brae? MR. ARTHUR: That's right. Or you can come off of the interstate access road and come back heading back east. COMMISSIONER ROY: okay. But you are not proposing an access on Bonnie Brae? MR. ARTHUR: NO, no. existing. Page 18 COMMISSIONER ROY: okay. Thank you. MR. ARTHUR: Nothing that's not already COMMISSIONER ROY: Thank you. COMMISSIONER POWELL: Any other questions? Mr. Watkins. COMMISSIONER WATKINS: Thank you, Mr. 1 2 3 4 5 6 7 8 9 10 1I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 19 right? M[~. SNYOER: ant I'll -- I mean, I'i1 leave it up to the applicant. I mean, it's really the applicant is the one that's taking the risk. Do you understand the question? MR. ARTHUR: well, I'm not sure I understand the risk. It is on the south side of the street, so -- MR. SNYD~R: okay. The risk -- the risk is that somebody could come up and question whether this is properly noticed or not -- MR. ARTHUR: ob, okay. MR. SNYDER: -* SillCe the notice says it's on the north side instead of the south side. And somebody says, well, I would have come to that public hearing if I would have known it was on the south side. MR. ARTHUr: okay. I think the risk is pretty minimal. MR. SNYDER: okay. MR. ARTHUR: It's such an improvement in the area, I think -- MR. SSYDER: ^nd this -- this has to go on to City Council anyway. MR. ARTHUR: we can get this corrected before it goes to there. Chairman. A question, I guess, for staff. Our backup Page 20 COMMISSIONER POWELL: would it help us if the motion to approve indicated that it was on the south MR, SNYDER: NO, it won't be necessary. COMMISSIONER POWELL: It wouldn't help? MR. SNYDER: NO, it wouldn't help. COMMISSIONER POWELL: okay. Any other says that this is on the north side of Oak Street -- COMMISSIONER POWELL: And it is not. COMMISSIONER WATKINS: It is not7 This will not endanger anything we do tonight, wilt it? MR. SNYDER: what counts for tonight is what's in the notice. It says on the north side of Oak Street, 300 feet of Bonnie Brae. COMMISSIONER WATKINS: That's probably a close location. It's just on the other side of the street but I wouldn't want to do something and have it go astray because of the location. COMMISSIONER POWELL: That's what in here, but do we know that's what's on the notice? MR. SNYDER: That's what -- yeah, this is the notice, meeting's notice. I think it's -- I think it's in close enough proximity that it's probably okay. COMMISSIONER ROY: This is government work, 8 9 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 side? questions of the applicant or staff?. Mr. Roy, I didn't see you there. COMMISSIONER ROY: rm ready to move approval of Item 4A. COMMISSIONER POWELL: i'm sorry. COMMISSIONER ROY: Oh, you didn't close it. COMMISSIONER POWELL: But I asked for questions, too. COMMISSIONER ROY: sorry. COMMISSIONER POWELL: I'm going to close the public hearing officially and thank the applicant. MR. ARTHUR: Thank you very much. COMMISSIONER POWELL: And then I'm going to ask for a motion. COMMISSIONER ROY: somebody else can do it. MR. SNYDER: Have we asked if anybody else wanted to speak? COMMISSIONER POWELL: No, We did not. PLANNING AND ZONING AUGUST 11TH, 2004 MINUTES Page 17 - Page 20 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 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 CondenseltTM Page 21 MR. SNYDER: okay. Let's just make sure. COMMISSIONER POWELL: So that wc don't get into any trouble tonight, would anybody else like to speak on this issue? Good. Now, I'll close the public hearing and I'll ask for a motion from Mr. Roy. COMMISSIONER ROY: oh, you're going to let me have another try at it. COMMISSIONER POWELL: Absolutely. COMMISSIONER ROY: NOW, I move approval of Item 4A. COMMISSIONER POWELL: IS there a second? COMMISSIONER WATKINS: second. COMMISSIONER POWELL: From Mr. Watkins. Mr. Watkms seconded it. Mr. Roy made the motion. I'll call for a vote. Mr. Strange is not here to vote on this issue. Motion passes 6-0 of those present. Page 22 1 2 3 4 5 6 7 8 9 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 Page 24 PLANNING AND ZONING AUGUST 11TH, 2004 MINiJTES Page 21 - Page 24 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM DOWNTOWN RESIDENTIAL 2 (DR-2) ZONING DISTRICT TO THE DOWNTOWN COMMERCIAL GENERAL (DC-G) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 3.6 ACRES OF LAND LOCATED APPROXIMATELY 300 FEET WEST OF BONNIE BRAE, ON THE SOUTH SIDE OF OAK STREET IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABmlTY CLAUSE AND AN EFFECTIVE DATE. (Z04-0030) WHEREAS, 2401 West Oak Ltd. has applied for a change in zoning for approximately 3.6 acres of land located approximately 300 feet west of Bormie Brae, on the south side of Oak Street and more particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (the "Property") from Downtown Residential 2 (DR-2) zoning district to Downtown Commercial General (DC-G) zoning district classification and use designation; and WHEREAS, on August 11, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change is consistent with the Comprehensive Plan; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The zoning district classification and use designation of the Property is hereby changed from Downtown Residential 2 (DR-2) zoning district to Downtown Commercial General (DC-G) zoning district classification and use. SECTION 3. The City's official zoning map is amended to show the change in zoning district classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invahd by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY PAGE 2 ~7/22/2004 ~5:4S ~9403889500 JV STRANGE PA6~E~ 8~ RXHIBIT "A# All that cert=~n =rat= or parcel of lan~ lying in the Eugene P~chalskf sudsy, ~straot 996, City of Denton, De,ton Co~=y~ Texas,'and sane ~ract ~h~ ~ d~ from Bon~z~ ~~y, LTD., to ~nan~a Ltd., o~ ~e 9~ day of May 1986, recorded ~ Vol~e 1883, ~age 731~ Pr~e~y Reoo~ o~ Denton C~ty, Te~. a~ be~g th~ same tract a Trusts~ ~ed ~rom =~es A. Cline, as T~s~ee to ~lt~an= sav~ngs Association on ~he 9~ day of Janua~ 1988, receded i~ Vol~e 23~5,' Page 232, ~al . P=o~e~ Records of Den=on Co~y, T~s, amd being ~ore pa~icularly de~sd a~ Beginning at an iron pin a= the southwe~= corner of said Bonanza tract a~d being North 60 degrees 31 m~utes 43 ~econ~ West 107.05 fe%t and North ~9 degrees 57 minutes 34 ~econds West 1179.61 feet from the intersection or,he West line of Bonnie Bra~ and the South l~ne of Was= Hickory Street; Thence North00 degrees 52 m~nutes 20 seconds West wight he West ~ne of Bonanza tract a d~stance of 150.10 feet to an ~=on pin on the South ~ne of west Oak Street a~ =ha Northwest corner of said Bonanza tract~ Thence South 90 degrees 00 m~nutes o0 s~conds East wi~h the South line of West Oak Street and th~ North line of ~aid Bonanza tract a d~stance of 914.8~ feet to an ~ron pin a= the North Northeast corner o£ said ~onanza traot~ We~t Hickory Street a distance of 906.74 fe~t to an ~ron pin at the Easternmost coL~ner of ~aid Bonanza tract~ Thence North 89 degrse~ 57 minutes 34 ~aconds West ~ith the South line o~ saia Bonanza tract a distance of 1179.61 feet to the ~o~nt of Beginning Containing in all 3.6168 acres of land, more or ~ess. NOTE ¥ THE CO,ANY DOES NOT /~EPRESENT THAT THE ABOVE ACREAGE OR SQUAR~ FOOTAGE CALCULATIONS ARE CORRECT. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Parks and Recreation Department Howard Martin, 349-8232 ~ SUBJECT Hold a public hearing and consider adoption an ordinance granting approval of a license agreement for the subsurface use of a portion of the South Lakes Park approximately 5,049 linear feet for the purpose of a fiber optics communications cable in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for the issuance of a license; and providing an effective date. BACKGROUND The Denton Independent School District has requested the use of 5,049 linear feet, 0.101 acres of parkland for the purpose of a new fiber optics cable to complete a communications network The alignment is requested to connect to schools on the north end of the park and schools to the south part of the city. State law as defined in Chapter 26, Protection of Public Parks and Recreational Lands, of the Texas Parks and Wildlife Code requires that: (a) a municipality of this state may not approve any program or project that requires the use or taking of any public land designated and used prior to the arrangement of the program or project as a park unless the municipality, acting through its duly authorized governing body or officer, determines that: (1) there is no feasible and prudent alternative to the use or taking of such lan& and (2) the program or project includes all reasonable planning to minimize harm to the land, as a park, resulting from the use or taking. (b) .4 finding may be made only after notice and a hearing as required by this chapter." Parks and Recreation Department staff has reviewed all possible alternatives. These alternatives included: Select another route through the city that would not cross South Lakes Park at this location. Consider re-routing using Teasley Lane. Due to the fact DISD is not a utility company, they cannot use TXDOT right of way for communication lines. Therefore, this is not a feasible and prudent alternative. Construct the proposed Fiber Optics line in the existing utility easements established along Teasley Lane in the Park. Non-city owned utilities are not permitted within city utility easements. Therefore, this is not a feasible and prudent alternative. Allow the construction of the new proposed fiber optics cable onto a 0.101-acre strip of park property along the western property line with Acme brick and the mid section of the park to Hobson Road. This will provide for a route creating little impact to the Park. Therefore, this is a feasible and prudent alternative. We know of no other alternative, making this the only feasible and prudent alternative. OPTIONS Based on the above option 3 as the only feasible and prudent alternative for the proposed project, City Council may approve or deny the recommendation to a allow the routing of a fiber optics line through South Lakes Park. RECOMMENDATION Staff recommends approval of option 3 to construct a 5,049 LF fiber optics communications line using a 1.101-acre portion of South Lakes Park. There will be no major impact on current or future park operations or programs. The Parks and Recreation Department confirms that the Denton Independent School District has investigated all other alternatives and has used reasonable planning to minimize harm to the land. ESTIMATED SCHEDULE OF PROJECT Construction is projected to begin in Winter 2004-05. PRIOR ACTION/REVIEW The Parks, Recreation and Beautification Board considered this item at their August 30, 2004 meeting and recommended approval of DISD's request. FISCAL INFORMATION Compensation related to this use is still under discussion with the Denton Independent School District. It is reasonable to expect that improvements directly related to programs and/or facilities on the South Lakes Park will be provided if approved. BID INFORMATION Not applicable EXHIBITS: 1. Ordinance 2. Map 3. Park Board Minutes of August 30, 2004. Respectfully Submitted: Prepared by: Bob Tickner, Superintendent Park and Recreation Department Janet Simpson, Director Parks and Recreation Department ORDINANCE NO. AN ORDINANCE GRANTING APPROVAL OF A LICENSE AGREEMENT FOR THE SUBSURFACE USE OF A PORTION OF THE SOUTH LAKES PARK APPROXIMATELY 5,049 FEET FOR THE PURPOSE OF A FIBER OPTICS COMMUNICATIONS CABLE IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE; PROVDING FOR THE ISSUANCE OF LICENSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 26.001 of the Texas Parks of Wildlife Code provides that public land designated and used as a park may be used for a non-park purpose if the City Council finds after notice and hearing that there is not feasible and prudent alternative to the use of such land for the proposed project and the proposed project includes all reasonable planning to minimize the harm to the park resulting from such use; and WHEREAS, the City of Denton desires to cooperate with the Denton Independent School District in the development of Fiber Optics Communication Cable by providing a license for the construction of a fiber optics cable 5,049 linear feet across South Lakes Park; and WHEREAS, Denton Independent School District desires to construct fiber optics cable line across South Lakes Park since alternative options would not be feasible and prudent; and WHEREAS, the City provided notice in the Denton Record Chronicle on August 30, September 6, and September 13, 2004 of a Public Hearing to be held on September 21, 2004 in the Council Chambers to consider the alternatives to the use of City Park and Recreational land for the subject fiber optics cable project; and WHEREAS, the City Council on September 21, 2004, received testimony from City staff and citizens regarding alternatives to the use of the South Lakes Park for this fiber optics cable line which includes, but is not limited to, the following: Select another route through the city that would not cross South Lakes Park at this location. Consider re-routing using Teasley Lane. Due to the fact DISD is not a utility company, they cannot use TXDOT right of way for communication lines Construct the proposed fiber optics line in the existing utility easements established along Teasley Lane in the Park. This option may not be prudent as an agreement with the City of Denton prohibits use of existing public utility easements other than city street right of ways. Allow the construction of the new proposed fiber optics cable onto a 0.101-acre strip of park property along the western property line with Acme brick and the mid section of the park to Hobson Road. WHEREAS, the City Council finds that the fact situation discussed above does not fall within the purview of Section 253.001 of the Texas Local Government Code; and EXHIBIT 1 WHEREAS, the City Council finds that there is no feasible and prudent alternative to the use of the Park land and that the fiber optics line project when constructed in accordance with the provisions of the license as described below will minimize the harm to the park land resulting from the proposed subsurface use of such park land effected shall remain useable for the park patrons once the construction of the fiber optics cable line improvements are completed; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the fiber optics cable line proposed by the Denton Independent School District, be constructed and maintained below the surface of the park property described in Exhibit A, which is attached hereto and made a part hereof for all purposes, and that the surface of the park after installation of the fiber optics cable line be constructed in a manner so that the park land may still be used by its patrons after completion of the project in the same manner it was used prior to the fiber optics cable line project. SECTION 2. That a license which is revocable as required by law be composed by the City Manager or his designee and approved by the City Attorney allowing the subsurface use of the park property as referenced above with appropriate provision to insure the improvements are constructed in accordance with City Subdivision Rules and Regulations; protects the patrons using the park from injury and damage both during and after construction of the project; compensates the City for the reasonable market value of the use herein granted and generally protect the health, safety and general welfare of the City. SECTION 3. That during construction of the improvements above, Denton Independent School District may have temporary use of such additional park land necessary to stage the construction of the improvements as may be approved by the Director of Parks and Recreation Department and at the completion of the construction activities for the above improvements such additional park land shall be restored to the condition to which it existed prior to the beginning of such construction activities. SECTION 4. That the fights and benefits set forth in this ordinance may not be assigned without the express written consent of the City. SECTION 5. That the License above grantee shall, to the extent allowed by law, constitute a covenant running with the land and be filed in the Deed Records of Denton County, Texas. SECTION 6. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the 2004. __ day of ., c:x~ocu~-~a~c^~xz~souraz~2.~ocPage 2 of 3 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY c:wocum~t~nydera, octa~s-~w~sourm~2.~ocPage 3 of 3 Exhibit A ACME BRICK COMPANY V. 3127, P. 950 McMATH MIDDLE SCHOOL N 89°55, E ~-- 1' CITY OF DENTON V. ;5257, P. 971 "SOUTHLAKE PARK' N 1078'~- ~ HOBSON LANE 1-FOOT FIBER OPTIC ESMT. 0.101 OFAN ACRE OF LAND iN THE C. POULLIALIER SY. A-1007 CITY OF DENTON DENTON COUNTY, TEXAS DRAWN: MGD JOB #: 1041 CHECKED: WMC DATE: 09-04-04 REVISED: SCALE: 1"=200' 5' TEMP. CONSTRUCTION ESMT. 89'54' E z II 03 135'-J:-~ IlI * THIS EXHIBIT WAS PREPARED FROM RECORD INFORMATION ONLY AND $ 89'55'50' W 852.15 REQUIRES FIELD VERIFICATION PRIOR TO ANY OFFICIAL RECORDING * CITY OF DENTON V. 5257, P. 971 'SOUTHLAKE PARK~ I TYPICAL ESMT SCALE: 1 · '1' FIBER OPTIC ESMT. · - 5' TEMP. CONST. ESMT. DETAIL Coleman & Associates Land Surveying P. O. BOX 686 DENTON, TEXAS 76202 PH(940)565-8215,FAX (940)565-9800, WWW.C OL EMANSURVEYING.COM t~) 2004 COLEMAN & ASSOC. SURVEYING 1-Foot Fiber OPf~ E~semenf land ~ri~d in the deed fo f.~i~ of Denton recorded in Volume 5257, Page 971 ~~Real Prope~ R~s~Denfon Count, Texas; the subject easement b~6~ ~re padicularly desc~~s follows' INING af the No~hwesf corner of the tract being described herein af the corner o~6~ 1, Block A, D.I.S.D. Third Middle School Addition recorded Cebinef N, Page~.e~f the Plat Records of Denton Count, Texas; THENCE North 8b D~r~s 55 Minutes East with the South line of said Lot 1, Block A a disfan?~o~=..~of, more or less; THENCE Souf~ly across the seid Ci~ of Denton tract, 1-foot East of and parallel with the West hne thereof, the following 5 calls: TH South O0 Degrees 01 Minutes EeSfline there,, ~ disfence Denton frecf, of '~sf of end perellel with the West of 2508 or less; ~ HENCE South 89 Degrees 54 Minutes West ~ seid Ci~ of Den~ ;foot South of end perellel with e North Ii '~ e disfence more or less; THENCE South O0 Degrees O0 Minutes~Eesf ecross the seid Ci~f ~n~on fr~cf distance of 1759 feet, more or les~p the South line of f~C~..~ Denton frect; Denton trocf e disfence of 1-foo~rom which the Sou~w~sf ~rner thereof beers South 89 Degrees 55 Minufes~~ disfence of 1~ ~f,~ore or less; THENCE Northerly of the Ci~ of ~fo'~ frecf the following 5 THENCE North O0 De~ees O0 Minutes Wesf~c~ss the sold City of Denton frecf, 1078 feet Eesf of e~r~llel with fh~~ thereof, e disfence of 1740 feet, more or less, fo e Nodh line of the C~'~:~ ~nfon frecf; THENCE North 89 Degrees 54 Minu~s Ea~ifh e North line of the Ci~ of Denton Trecf e distance of 135 feet, more~E~r less, fo ~ reenfrenf corner thereof; THENCE Nodh O0 Degrees Minutes West ~ disfence of 5174 feet, more or less, fo the P~CE OF BEGINNIN~ nd enclosing 0.101 of enocre of lend; South Lakes Park Proposed Fiber Optics Line EXHIBIT 2 Parks, Recreation and Beautification Board Minutes Senior Center August 30, 2004 Members present: Teresa Andress, Geri Aschenbrenner, Ross Richardson, Members absent: Chuck Smith, Jo Kuhn, and Patrice Lyke. Staff present: Tickner, Janie McLeod, Emerson Vorel, and Kathy Schaeffer. and Reggie Heard. Janet Simpson, Bob Chairperson Teresa Andress called the meeting to order at 6:15 p.m. at the Senior Center. Awards and Recognition - None APPROVAL OF MINUTES. Ross made a motion to approve the August 2nd minutes as distributed. Reggie seconded the motion and it passed unanimously. ACTION ITEMS Proposed Fiber Optics Cable Route at South Lakes Park. Bob said the Denton Independent School District has requested the use of 4,300 linear feet, .0987 acres of parkland for the purpose of a new fiber optics cable to complete a communications network. The alignment is requested to connect McMath Middle School on the north end of the park and schools to the south part of the city. After reviewing all alternatives, staff recommends approval of option 3 to construct a 4,300 LF fiber optics communications line using a 0.098-acre portion of South Lakes Park. Reggie made a motion to approve the request and Geri seconded the motion. The motion passed unanimously. Proposed Gas Line Easement Airport Open Space Park. Bob said that Jerry Hess Operating Company has requested the use of parkland in order to locate a natural gas transmission line. After reviewing all other alternatives, staff recommends approval of the use of the Airport Open Space Park for the natural gas line easement. There would be no major impact on current park operations or programs. Ross made a motion to approve the request and Reggie seconded the motion. The motion passed unanimously. Strategic Plan. Janet reported that approximately every five years, the Parks and Recreation Department develops an operational Strategic Plan to guide decision-making in the department. The Board reviewed the Strategic Plan in detail at the July meeting and had requested that it be brought forward for approval. Geri made a motion to approve the Strategic Plan and Reggie seconded the motion. The motion was approved unanimously. Naming of Skate Park - Kathy reported that the Skate Park Committee is a group of adults and youth who have been involved in the creation and design of the skate park. There are currently EXHIBIT 3 10 members on the committee and an additional list of 20 email addresses were consulted. All four middle schools and the two high schools were asked to submit names. The committee recommended the name of the park to be: Skate Works. Ross made a motion to approve the recommendation and Geri seconded the motion. The motion passed unanimously. Request to Sell Alcoholic Beverages at Fuego Y Alma Event. Janet reported said that the Fuego Y Alma Committee requested to sale alcohol at the October 9th event. She added that it would be the organization's fourth year without incidents. Patrick Vasquez was there to represent the organization and gave a review of the activities to take place. Geri made a motion to approve the request to sale alcohol at Fuego Y Alma and Reggie seconded the motion. The motion passed unanimously. Discussion Items - None DIRECTOR'S REPORT Project Status Report. Bob reviewed the progress of the renovation on the Civic Center. Keep Denton Beautiful Newsletter was included in the packet and there were no questions. Geri commented that some benches at Avondale Park had been bent and wondered the cause. Janet explained that possibly some damage to the tables had occurred as a result of vandalism. The benches will be repaired. Teresa asked if the Water Works Park revenue had increased. Janet said that there had been three rounds of marking and that the weather was a deterrent to the attendance. Janet said the park would be closing after the Labor Day events. Teresa said she was very pleased that the Denton Boys Baseball Association had put together a league that will be playing at Roberts Field. She was pleased that the teams would be playing in Denton. Janet said that Patrice Lyke has joined the Board but was not able to attend tonight due attending a CIP meeting. There being no further business, the meeting was adjourned at 6:55 p.m. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 21, 2004 Wastewater Utilities Howard Martin, Utilities 349-8232 SUBJECT Consider adoption of a resolution of the City Council of the City of DeNon, Texas, stating commitment to the continuation of adequate funding for implementation and support of the City of Denton "Environmental Protection Agency and Texas Commission on Environmemal Quality Approved Pretreatmem Program Pilot Project," as modified under Project XL; authorizing the execution by the City Manager of documems providing for modification of said project; and providing an effective date. BACKGROUND As required by the Clean Water Act (CWA) water pollution comrol program and Texas Pollutam Discharge Elimination System (TPDES) Permit No. 10027-003, the City of Denton Pretreatment Program controls sources of pollutants discharged to the wastewater collection system and treatment facilities by consistent monitoring and inspection of industrial and major commercial users. In February 2000, the City of Demon signed a Final Project Agreemem (FPA) with the USEPA and the Texas Natural Resources Conservation Commission (TNRCC; cureremly known as the Texas Commission on Environmemal Quality or TCEQ) to implemem a pilot project under the XL Program. The goal of the pilot project was to allow the relaxation of programmatic / regulatory requirements in order to achieve greater environmental benefits. The pilot project proposed to decrease the frequency of industrial user inspections and sampling events and to allocate the resulting resources toward compliance with Phase II Storm Water requirements. It is important to note that changes in monitoring and inspection schedules are considered by the USEPA to be substamial modifications of the Approved Pretreatment Program. As stated in the FPA and in Denton's TPDES permit, if the objectives of the proposal are not met, the Approval Authority (TCEQ) shall direct the City of Denton to resume the implementation of its previously approved Pretreatment Program. In lieu of an ordinance revision, the TCEQ is requiring a resolution of commitment from the Denton City Council that assures continued support of the proposed FPA modifications for the Pretreatment Program XL project. Overall, the USEPA XL program is designed to offer regulatory relief for programs that achieve "greater environmemal benefits" compared to the benefits that would likely be realized under traditional regulatory approaches. In essence, this program encourages improvemems and innovation in pollution comrol through regulatory flexibility. As mentioned in previous presentations to the Public Utility Board, the Utilities Department anticipates significant future challenges concerning wastewater discharges into Lake Lewisville. One of the ways to overcome these challenges is by implementing non- traditional regulatory approaches such as the nutrient trading strategy currently being explored through the City of Demon's 319 Gram with the TCEQ. However, the implementation of such non-traditional regulatory approaches cannot be viable without significam regulatory flexibility. The proposed FPA modification will provide a mechanism to pursue regulatory flexibility under the XL program umil February 22, 2010. It should be noted, however, that "greater environmental benefits" must be demonstrated in order to enjoy the full benefit of the XL program's regulatory relief provisions. We believe that greater environmental benefits can be demonstrated decisively both through our existing monitoring efforts and through the new activities proposed under the TCEQ 319 gram. A paper emitled "Chlorpyrifos in Surface Waters Before and After a Federally-Mandated Ban" is attached as a demonstration of how the monitoring efforts under the current XL program have been used to illustrate the effects of a federal ban on chlorpyrifos. This paper has recemly been accepted for publication in Environment International, a well-respected international journal specializing in environmental research. OPTIONS 1. Accept the proposed resolution without modification. 2. Accept the proposed resolution, with modifications. 3. Do not accept the proposed resolution. RECOMMENDATION Staff recommends Option 1, accepting the proposed resolution without modification. PRIOR ACTION/REVIEW (Council, Boards, Commissions) February 22, 2000: FPA signing ceremony. The Public Utilities Board considered modifications to the Pretreatment Program at their September 13, 2004 meeting. FISCAL INFORMATION None BID INFORMATION None EXHIBITS 1. Final Project Agreement Modification. 2. RESOLUTION NO. 2004- 3. Chlorpyrifos in Surface Waters Before and After a Federally-Mandated Ban 4. Public Utilities Board Meeting Minutes Prepared by: Respectfully submitted: Jim Coulter Director of Water Utilities Kenneth Banks, Water Resources Program Manager and / Bill McCullough, Environmental Services Coordinator Final Project Agreemem Modification Pilot Pretreatment Program Project XL City of DeNon, Texas Under the provisions of the Final Project Agreemem (FPA) signed February 22, 2000, the undersigned parties to the original Final Project Agreement hereby agree to extend the duration of the project for five additional years, umil February 22, 2010. The purpose of the extension will be to allow the City of Denton to incorporate the elements of the FPA imo the Publicly Owned Treatmem Work's (POTW's) NPDES permit. Accordingly, reporting provisions outlined in the FPA will be brought forward as well, including the requirement that the City of Denton submit each year during the month of March a Pretreatment Program Status Report to EPA Region VI. The final project report required by the FPA will due in the final year of the pilot, February, 2010. All other obligations and commitmems comained in the original FPA and in the POTW's National Pollutam Discharge Elimination System (NPDES) permit developed pursuam to the FPA will cominue to be in force for the extended life of the project. SIGNATORIES TO THE FINAL PROJECT AGREEMENT CITY OF DENTON, TEXAS PROJECT XL EXHIBIT 1 RESOLUTION NO. 2004- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, STATING COMMITTMENT TO THE CONTINUATION OF ADEQUATE FUNDING FOR IMPLEMENTATION AND SUPPORT OF THE CITY OF DENTON "ENVIRONMENTAL PROTECTION AGENCY AND TEXAS COMMISSION ON ENVIRONMENTAL QUALITY APPROVED PRETREATMENT PROGRAM PILOT PROJECT," AS MODIFIED UNDER PROJECT XL; AUTHORIZING THE EXECUTION BY THE CITY MANAGER OF DOCUMENTS PROVIDING FOR MODIFICATION OF SAID PROJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Code of Federal Regulations requires that publicly-owned treatment works have sufficient resources and qualified personnel to carry out the authority and procedures of the pretreatment program; and WHEREAS, the City of Demon TPDES Permit No. 10027-003 requires comrol of pollutams comributed by industries; and WHEREAS, the City Council of the City of Demon, Texas approved Ordinance No. 93-112 on June 15, 1993, which ordinance provided for an approved pretreatmem program, which provided, among other things, control of pollutants, protection of the wastewater collection system and treatment facility, safety of workers, reduction of the levels of toxic pollutants in wastewater discharges from the publicly-owned treatment works to the receiving system, and other provisions; and WHEREAS, Staff proposes in the Pilot Pretreatment Program under Project XL that the Council of the City of Denton approve this Resolution; to modify the previous agreement by decreasing the frequency of Industrial User inspections and sampling evems, and which modification is deemed a "substamial modification" of the approved pretreatment program under 40 CFR 403.18; and WHEREAS, the City of Demon City Council acknowledges that it fully supports and is committed to continued funding of the City of Denton Pretreatment Program, Pilot Project XL, to meet the requirements of Federal regulations and the TPDES permit; and further the City Manager of the City of Demon, Texas is hereby authorized to execute documems providing for the modification of said project as provided hereinabove; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the recitals and recitations contained in the preamble to this Resolution are hereby adopted and incorporated by reference as if set forth more fully herein below. EXHIBIT 2 SECTION 2. That the City Council resolves to continue to fully support and is further committed to the continued funding of the City of Denton Pretreatment Program, Pilot Project XL, as modified, in order to meet the requirements of the Federal regulations and the applicable TPDES permit. SECTION 3. That the City Council hereby empowers the City Manager to execute and deliver any and all appropriate documents which are necessary and appropriate to effect the modification of the City of Denton Pretreatment Program, Pilot Project XL. SECTION 4. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT PROUTY, CITY ATTORNEY By: Chlorpyrifos in Surface Waters Before and After a Federally-Mandated Ban Kenneth E. Banks,+$* David H. Humer, + and David J. Wachal ~ '~ City of Denton Watershed Protection Program, 901,4 Texas St., Denton, Texas 76209 US,4 $ Institute of,4ppliedSciences, University of North Texas, P.O. Box 310339, Denton, Texas 76203 US,4 * Corresponding author (Tel.: +1-940-349-7165; fax: +1-940-349-7334. E-mail address: kenneth.banks~cityofdenton.com) Abstract Samples collected from rural and urban streams in the City of DeNon, Texas, USA were analyzed for the organophosphorus pesticides diazinon and chlorpyrifos during the years preceding and following a United States Environmental Protection Agency ban on many chlorpyrifos uses. A network of 70 monitoring stations, based mainly on topography and hydrological considerations, were established within the three main watersheds of Denton. Monitoring stations were sampled monthly from March through August during periods of normal flow (baseflow), resulting in a total of 308 samples and 311 samples collected during 2001 and 2002, respectively. Pesticide concentrations were determined using commercially available enzyme-linked immunosorbem assays specific for each pesticide. Results from this temporally and spatially dense monitoring effort were used to illustrate the impacts of a ban on most chlorpyrifos sales that was imposed in December, 2001. The total number of samples exhibiting concentrations above method lower limits of detection (LLD) decreased between 2001 and 2002 for both chlorpyrifos and diazinon. The total number of sites exhibiting at least one sample with concentrations above the LLD for chlorpyrifos, however, significamly decreased (Fisher's exact test, p <<0.0001, n = 70) when comparing 2001 (before the ban) to 2002 (after the ban). Similar analyses indicated no significam difference (Fisher's exact test, p = 0.50, n = 70) in the number of sites exhibiting detectable diazinon concemration between 2001 and 2002. Our results indicate that the cessation of retail chlorpyrifos sales at the end of 2001 resulted in a highly significam decrease in the surface water occurrences of this pesticide during 2002. Keywords: Diazinon; Chlorpyrifos, Ban; Urban watersheds; Immunoassay; ELISA Introduction Urban and rural aquatic ecosystems are often polluted by a wide variety of comaminams from agricultural, industrial, or municipal activities. Comaminams of concern include pesticides, because of the toxicity of some of these compounds at low concentrations and prevalence of their use. The issue of high organophosphorus pesticide concentrations in receiving streams is particularly relevant in southern states, where these compounds are used extensively during the spring and summer momhs (see Coupe et al., 2000). Over 500 million kg of pesticides of various types are used each year in the United States in EXHIBIT 3 agricultural and urban settings (Aspelin, 1995). Depending on local conditions, large amounts of these pesticides may wash into adjacent watersheds (Baker and Richards, 1990), which may affect resident aquatic biota. A relatively recent study by the U.S. Geological Survey demonstrated that some commonly used household and garden pesticides occur at higher frequencies and concentrations in urban streams when compared to agricultural streams (USGS, 1999). The study also found that pesticide concentrations were frequently in excess of United States Environmental Protection Agency (USEPA) guidelines for protection of aquatic life. Pesticides of greatest concern within urban and rural environments include organophosphorus pesticides (Center for Watershed Protection 1999; Schueler, 1995) because they can harm aquatic life even at very low concentrations. The prevalence of these pesticides is also a concern, since organophosphate pesticides are some of the most frequently used pesticides in the world (Ankley et al., 1991). Chlorpyrifos (O,O-diethyl-O-(3,5,6-trichloro-2-pyridinyl) phosphorothioate) and diazinon (O,O-diethyl-O-(2-isopropyl-6-methyl-4-pyrimidinyl) phophorothioate) are two organophosphorus pesticides widely used in both agricultural and urban applications (Sine, 1992). Both pesticides have been associated with toxicity in ambient waters, point source discharges, and agricultural discharges (Foe and Sheipline, 1993; Amato et al., 1992; Burkhard and Jenson, 1993; Miller et al., 1994; Kuivila and Foe, 1995). Diazinon and chlorpyrifos have also been responsible for causing aquatic life toxicity in urban waters (Jones-Lee and Lee, 2000). Table 1. Physical properties and fate characteristics of chlorpyrifos and diazinon. Physical properties and fate characteristics Chlorpyrifos Diazinon Molecular weight (g/mol) 351.0 a 304.3 c Water solubility (mg/L) - 2 b,d -- 40 c K,,w 66,000 a 2,000 ° Koc 6070 ~ 758 ~ Vapor Pressure 1.87 x 10-s ~ 1.4 x 10-4a Aerobic aquatic persistence (days) 154 ~ 82 a Average soil persistence, T1/2 (days) 60-120 ~ 14-28 ~ EXTOXNET, 2003 Hayes, 1982 USEPA, 2001 McEwen and Stephenson, 1979 USEPA, 2000b Chlorpyrifos is the most iNensively used organophosphate insecticide in agriculture (Larson et al., 1997) and is prevaleN in urban insecticide applications (Schiff et al., 2002). Chlorpyrifos is commonly used to coNrol insects on agricultural crops such as cotton, grains, fruits, alfalfa, and sugar beets. Urban uses of chlorpyrifos include landscape maiNenance, structural pest coNrol, dormaN sprays, and pet products. Diazinon is also widely used in both agricultural and urban applications (Sine, 1992). Urban uses of diazinon are similar to chlorpyrifos, with dormaN sprays, foundation and landscape insect coNrol, and building pest coNrol being common applications. Agricultural applications are varied, and include insect control on alfalfa, lettuce, sugar beets, and melons. In general, the effects of urban non-poiN source pollution runoff on receiving water quality are highly site specific (USEPA, 1983). Runoff coefficieNs may vary greatly depending on rainfall evens, field slopes, soil, and chemical characteristics (Wauchope, 1978), which makes it difficult to assess coNaminaN conceNrations without temporally and spatially dense monitoring networks. Although there is little doubt that activities within the land componeN of watersheds profoundly affect water quality in receiving streams, rivers, lakes, and shallow aquifers, determining the nature and exteN of these effects can be problematic if monitoring efforts lack adequate spatial and temporal resolution. Previous monitoring efforts conducted by the City of DeNon, Texas (USA) have demonstrated that chlorpyrifos and other organophosphates such as diazinon are ubiquitous within the surface waters of the City, particularly during times of heavy applications (Banks and Wood, 2001; Banks 2002). Results from these monitoring efforts indicate that diazinon and chlorpyrifos are often detected simultaneously within the same receiving waters, and are most strongly associated with residential land uses. Although the physical properties and fate characteristics of chlorpyrifos are somewhat differeN from those of diazinon (Table 1), these compounds are often found concurreNly due to their similar uses and application patterns. Because surface water monitoring activities during the City of Denton studies were both spatially and temporally dense, the data collected during these efforts provide a comprehensive summary of the occurrence and distribution of both compounds and the association between land uses and organophosphorus conceNrations in receiving waters (see Banks and Thuesen, 2002; Banks et al., 2004). Monitoring efforts for chlorpyrifos and diazinon were conducted during peak pesticides application seasons (March through August) within the City of DeNon, Texas during both 2001 and 2002. During June, 2000 the USEPA released a revised risk assessmeN and announced an agreement to eliminate and phase out certain uses of chlorpyrifos (USEPA, 2000a). The agreemeN phased out nearly all indoor and outdoor resideNial uses. Chlorpyrifos uses in schools, parks, and other non-resideNial settings where children might be exposed were also canceled. The only outdoor non-agricultural uses remaining are treatments of golf courses, road medians, industrial plants, and non- structural wood materials. The only public health uses allowed are professional applications for the treatment of fire ant mounds and professional uses as an adulticide for mosquito control. Under the agreement, all retail sales of chlorpyrifos were stopped on December 31, 2001. The objective of this paper was to use the results of a spatially and temporally dense monitoring network to examine the differences in surface water concentrations of chlorpyrifos and diazinon during the year prior to and the year following this USEPA ban. Methods Study Area The City of Denton is located in north central Texas, USA at latitude N 33° 12' 49.7" and longitude W 97° 09' 03.4" (Figure 1). Topography varies from level to gently rolling, while physiography is divided between the Grand Prairie and Eastern Cross Timbers regions. The jurisdictional and extra-territorial jurisdictional boundaries of the city cover approximately 207 square kilometers. Approximately 89,000 people live in the region (United States Bureau of Census (USBC), 2000; assuming 5% annual growth). Annual precipitation averages 99 cm/year, the majority of which normally occurs during the months of April through May and the months of September through October. State of Tex~$ Figure 1. Map of Texas showing Denton County Major Watersheds There are three main watersheds that drain the majority of the city (Figure 2). The Cooper Creek watershed is a relatively highly developed commercial / residential area of the city, comprised of mainly of mixed rangelands (972 hectares) urban development (430 hectares) and cropland / pasture (547 hectares). The Pecan Creek watershed is somewhat larger and more diverse than Cooper Creek, with the main land use divided among urban (2024 hectares), mixed range land (1350 hectares), and cropland / pasture (1180 hectares). Hickory Creek is a large and predominantly agricultural watershed, although some areas of the watershed, particularly near the Interstate Highway 35 corridor (Figure 2), are experiencing rapid conversions from rural to urban land uses. Cropland / pasture (3871 hectares), mixed range-lands (3855 hectares) and forest (977 hectares) are currently the most predominant land use categories for Hickory Creek. Figure 2. Map of Denton's watersheds showing sampling stations (dots). Sub-watershed Characterization and Establishment of Monitoring Stations Several sources were used to delineate water resources, including city zoning information, city storm-water infrastructure information, digital ortho-quad aerial photography, a Landsat 7 Enhanced Thematic Mapper Plus [ETM+] image (acquisition date August, 1999), soils data, and topographical data. Field visits of the study area provided additional information. All information was combined within an ArcView® GIS (geographical information system) database (Environmental Systems Research [ESRI], Version 3.2a). Using the available information, the three main watersheds of the city were divided into 70 sub-watersheds of various sizes and land uses. In some cases, professional judgment was needed to accurately establish sub-basins, as some drainage modifications had altered surface water flows. Sampling stations were established in the primary lotic system of each sub-watershed, which were consistently classified as first order streams. Sample collection During 2001 and 2002, surface water samples were collected monthly during periods of normal flow, from March through August. Although each sampling station was visited on a monthly basis, not all of the stations had sufficient water to provide a sample every month. All samples were collected from the center of the waterways to minimize bank influence, if depth allowed, samples were collected approximately 1 foot below the surface of the water. For shallow sites, samples were collected at the depth necessary to minimize bottom and surface influence. Samples were placed in specially cleaned 25 mL borosilicate sample vials with no headspace, sealed using teflon septa, chilled during transport, and stored at 4°C in the dark until analyses. All samples were analyzed within 72 hours of collection. ELISA Analytical Chemistry Enzyme-linked immunosorbent assays (ELiSA) were obtained from Strategic Diagnostics inc. (Newark, Delaware, USA) and used to determine chlorpyrifos and diazinon concentrations in surface water samples. Each analytical run for diazinon was accompanied by known standards at 0.03, 0.10, and 0.50 pg/L pesticide, whereas those for chlorpyrifos were accompanied by known standards at 0.05, 0.3, and 1.0 pg/L pesticide. Samples with concentrations that exceeded the highest calibration standard were diluted to bring the measured values within the range of the standard curve. All R2 values for standard curves exceeded 0.95, and the Coefficients of Variation among the optical density values for all calibration standards were within the 15 percent guideline specified by the manufacturer. Concentrations were derived by reading optical densities of the calibration standards and samples using an Millipore Microwell Strip Reader (Millipore Corporation Bedford, MA, USA). The optical density of each sample was corrected using the optical density of the negative control samples and converted to concentrations based on an equation derived from the calibration standards. Quality Assurance / Quality Control (QA/QC) activities consisted of at least one known addition spike, laboratory split sample, and field duplicate sample per 10 field samples. For these methods, Strategic Diagnostics, Inc. has established a lower limit of detection (LLD) of 0.022 pg/L for diazinon and 0.050 pg/L for chlorpyrifos. Statistical analyses Data from each of the 70 monitoring stations were categorized into one of two exclusive categories: either above the LLD for either diazinon or chlorpyrifos (e.g., a positive sample) or below the LLD (e.g., a negative sample). A 2 x 2 contingency table approach (Stokes et al., 1995) was used to summarize the number of monitoring stations that exhibited at least one positive sample during 2001 and 2002 for both pesticides. We then tested the null hypothesis of no association between the row variable (year) and the column variable (the presence of at least one positive sample at given monitoring station) against the alternate hypothesis of non-random association using a chi-square approach via SAS v. 8.02 statistical software (SAS institute inc., Cary, NC, USA). As the time frame between sampling events was approximately one month, and samples were only collected during periods when water was flowing, the potential for confounding issues due to pseudo-replication is likely minimal. Preliminary data analyses indicated that the expected counts in the 2 x 2 table cells were too small to meet the sample size necessary for the chi-square distribution to apply. To overcome this problem, Fisher's exact test (Cody and Smith, 1997) was employed as a more accurate method for testing the null hypothesis of no association. For situations where the sample size requirements of the usual chi-square tests are not met, Fisher's exact test is considered a more appropriate alternative to conventional chi-square approaches (Stokes et al., 1995). Because many samples, particularly chlorpyrifos, had concentrations below LLDs, calculating summary statistics would have necessitated a choice on how non-detect values would influence summary statistics. To avoid the arbitrary choices needed to create summary statistics and the inevitable subjectivity associated with this process, we chose instead to report simple statistics and to use proportions to quantify the number of samples with concentrations values above LLDs. Results and Discussion In general, both 2001 and 2002 were characterized by relatively wet springs into early summer, followed by a relatively dry fall into winter (Figure 3). During the monitoring period of March through August, rainfall during 2002 was substantially higher than 2001 for all months except August. The frequency of rainfall events was also higher during 2002, particularly during the more predominant application months of May-July (5.7 + 2.5 events for 2001 compared to 9.7 + 3.1 events for 2002). 1 O0 80 60 40 20 0 J /01 F M A M J J A S O N D 02 ~30-yr. av. ~01total o02total 30-yr.av.totalI Figure 3. Monthly average and accumulated rainfall (in centimeters) for January through December 2002 compared to average values derived from the previous 30 years. "01" - monthly total precipitation for 2001, "02" - monthly total precipitation for 2002, "30-yr. av." - 30-year average monthly rainfall, "01 total" - total accumulated precipitation during 2001, "02 total" - total accumulated precipitation for 2002, "30-yr. av. total" - 30-year average accumulated rainfall. Table 2 summarizes the presence of both diazinon and chlorpyrifos in concentrations above the established LLDs during both the 2001 and 2002 monitoring periods. Since the main pathway for both diazinon and chlorpyrifos to enter urban streams is presumed to be through overland flow (Schueler, 1995), it is likely that greater amounts of rainfall would result in more of these chemicals transported from land surfaces to receiving waters. However, larger rainfall volumes also create both dilution and flushing effects. This is particularly true in urban streams, which tend to convey large amounts of water over a relatively short time due to the lack of rainwater infiltration caused by impervious surfaces within their drainage basins. Increased frequency of rain events also influences the amount of chlorpyrifos and diazinon entering surface waters. In general, concentrations of organophosphates entering streams tend to be greater if weather conditions remain dry for several weeks between successive storms (Center for Watershed Protection, 1999). As our samples were collected during periods of normal flow, the direct influence of storm water flows was minimized. Dilution and flushing effects, however, seem to have been more pronounced during 2002, resulting in a lower number of samples exceeding the method LLD for both diazinon and chlorpyrifos. Table 3 shows the number of stations having at least one concentration value exceeding the method LLD for both chlorpyrifos and diazinon and the associated Fisher's exact test probabilities. Although the total number of samples above the method LLD decreased for both chlorpyrifos and diazinon from 2001 to 2002 (Table 1), the number of sites exhibiting at least one sample above the method LLD for diazinon did not change significantly between 2001 and 2002 (Table 2, Fisher's exact test, p = 0.50, n = 70). The number of sites exhibiting at least one sample containing chlorpyrifos above the method LLD, however, was highly significantly lower (Table 2, Fisher's exact test, p << 0.0001, n = 70) during 2002 compared to 2001. Table 2. Summary of diazinon and chlorpyrifos monitoring data collected during the 2001 and 2002 sampling periods. 2001 Sampling Period Chlorpyrifos Diazinon Total number of samples 308 308 Number above LLD* 215 308 Proportion above LLD* 69.8 100.0 Maximum Concentration 0.70 [tg/L 2.58 [tg/L 2002 Sampling Period Chlorpyrifos Diazinon Total number of samples 311 311 Number above LLD* 12 273 Proportion above LLD* 3.9 87.8 Maximum Concentration 0.11 [tg/L 1.67 [tg/L * LLD - Louver Limits of Detection. 0.022~tg/L diazinon, 0.050~tg/L chlorpyrifos Table 3. 2 x 2 contingency table and associated Fisher's exact test probabilities. Total number Chlorpyrifos Diazinon of sites Number of sites exhibiting at least one concentrations above the LLD* for 2001 Number of sites exhibiting at least one concentrations above the LLD* for 2002 68 70 70 11 69 70 Fisher's exact test probability 1~ <<<0.001 1~ - 0.50 * LLD - Louver Limits of Detection. 0.022pg/L diazinon, 0.050pg/L chlorpyrifos Collectively, the above findings suggest that the ban on most residential and outdoor uses of chlorpyrifos that was imposed on December 31,2001 did affect surface water chlorpyrifos concentrations in the study area. From 2001 to 2002, the proportion of total number of samples containing chlorpyrifos concentrations above the method LLD decreased. However, concurrent monitoring of diazinon demonstrated that the total number of samples containing diazinon concentrations above the method LLD also decreased between years, although the number of sites exhibiting at least one measurable concentration of diazinon did not change significantly between years. Analyses of the numbers of sites exhibiting at least one measurable quantity of chlorpyrifos during the monitoring period showed a highly significant difference between years, indicating that chlorpyrifos was much less prevalent in surface waters in the year following the imposition of the ban. Conclusion The occurrence of chlorpyrifos concentrations above detectable levels within the surface waters of Denton, Texas, USA significantly decreased from 2001 to 2002. Although monitoring of a similarly applied organophosphorus pesticide (diazinon) also showed decreases in the total number of concentrations above detectable levels between years, the magnitude of change on a site-by-site basis was not significant between 2001 and 2002. Results presented in this paper indicate that the ban on chlorpyrifos imposed at the end of 2001 resulted in a decrease in chlorpyrifos occurrences within the surface waters of Denton. These results may be useful to researchers exploring relationships between land uses and water quality, water supply organizations, and government agencies examining the effects of environmental regulations. References: Amato, J.R.; Mount, D.I.; Durham, E.J.; Lukasewyez, M.T.; Ankley, G.T.; Robert, E.D. An example of the identification of diazinon as toxicants in an effluent. Environ. Toxicol. Chem. 11:209-216; 1992. Ankley, G.T.; Dierkas, J.; Jensen, D.; Peterson, G. Piperonyl Butoxide as a Tool in Aquatic Toxicology Research with Organophosphate Insecticides. Ecotoxicol. Environ. Sar. 21:266-274; 1991. Aspelin, A.L.Pesticide Industry Sales and Usage. 1992 and 1993 Market Estimates: U.S. Environmental Protection Agency: Office of Pesticide Programs, Biological and Economic Analysis Division, Washington (DC) 773-K-94-001; 1994. Baker, D.B.; Richards, R.P. Transport of soluble pesticides through drainage networks in large agricultural river basins. In: Kurtz, D.A. (Ed.), Long Range Transport of Pesticides. Lewis Publishers, Chelsea, MI, USA.; 1990. Banks, K.E.; Wood, S.H.; "Watershed Protection Program Annual Report 2001". Final Report, City of Denton Watershed Protection Program, Denton, Texas, USA.; 2001. Banks, K.E. "Watershed Protection Program Annual Report 2002". Final Report, City of Denton Watershed Protection Program, Denton, Texas, USA.; 2002. Banks, K. E.; Thuesen, K.A. "Application of a Watershed-Based Pesticide Monitoring Program for Water Resources Protection". In: StormCon, The North American Surface Water Quality Conference; August 2002. Banks, K.E.; Turner, P.K.; Wood, S.H.; Matthews; C.A. "Increased Toxicity to Ceriodaphnia dubia in Mixtures of Atrazine and Diazinon at Environmentally Realistic Concentrations". Ecotoxicol. Environ. Sar. (in press); 2004. Burkhard, L.P.; Jenson, L.L. Identification of ammonia, chlorine, and diazinon as toxicants in a municipal effluent. Arch. Environ. Cont. Toxicol. 25:506-515; 1993. Center for Watershed Protection (CWP). Diazinon Sources in Runoff from the San Francisco Bay Region. Technical Note 106. Watershed Prot. Tech. 3(1): 613-616; 1999. Cody, R.P.; Smith, J.K. Applied Statistics and the SAS Programming Language, 4th Edition. Prentice-Hall, Upper Saddle River, New Jersey, USA; 1997. Coupe, R.H.; Manning, M.A.; Foreman, W.T.; Goolsby, D.A.; Majewski, M.S. Occurrence of pesticides in rain and air in urban and agricultural areas of Mississippi, April-September 1995. Sci. Total Environ. 248(2-3): 227-240; 2000. 10 EXTOXNET. The Extension Toxicology Network. University of California, Davis, Oregon State University, Michigan State University, Cornell University, and the University of idaho. Available from <http://ace.orst.edu/info/extoxnet/>; 2003. Foe C.G.; Sheipline, R. Pesticides in surface waters from applications on orchards and alfalfa during the winter and spring of 1991-1992. Central Valley Regional Water Quality Control Board, Sacramento, CA, USA; 1999. Hayes, W.J. Pesticides Studied in Man. Williams and Wilkins, Baltimore, Maryland, USA; 1982. Jones-Lee, A; Lee, G.F. Development of TMDL goals for control of organophosphate pesticide-caused aquatic life toxicity in urban stormwater runoff. Proceedings of the Water Environment Federation National 73rd Annual Conference, Anaheim, CA, USA; October 2000. Kuivila, K.M.; Foe, C.G. Concentrations, transport, and biological effects of dormant spray pesticides in the San Francisco Estuary, California. Environ. Toxicol. Chem. 14:1141-1150; 1995. Larson, S.J.; Capel, P.D.; Majewski, M.S. Pesticides in Surface Waters: Distributions, Trends, and Governing Factors. Ann Arbor, Chelsea, Mi, USA; 1997. McEwen, F.L.; Stephenson, G.R. The use and significance of pesticides in the environment. John Wiley and Sons, New York, USA.; 1979. Miller, J.L.; Bailey, H.C.; Miller, M.J. Fate and toxicity of diazinon and chlorpyrifos in municipal effluents. Abstracts, 15th Annual Meeting, Society of Environmental Toxicology and Chemistry, Denver, CO, USA; October 30-November 3, 1994. Schiff, K.; Bay, S.; Stransky, C. Characterization of stormwater toxicants from an urban watershed to freshwater and marine organisms. Urban Water 4(3):215-227; 2002. Schueler, T. Urban Pesticides: From The Lawn To The Stream. Watershed Prot. Tech. 2(1):247-253; 1995. Sine, C., ed. Farm Chemicals Handbook. Meister, Willoughby, OH, USA; 1992. Stokes M.E., Davis C.S., Koch G.C. Categorical Data Analysis Using the SAS System. SAS institute inc., Cary NC, USA. 1995. United States Bureau of the Census (USBC). City and County Data Book, Washington, (DC): U.S. Bureau of the Census; 2000. 11 USEPA. Results of the nationwide urban runoff program, Vol. I. Final Report, United States Environmental Protection Agency, Water Planning Division, Washington (DC); 1983. USEPA. Chlorpyrifos Revised Risk Assessment and Agreement with Registrants. United States Environmental Protection Agency, Office of Pesticide Programs, Washington, (DC); 2000a. USEPA. Environmental risk assessment for diazinon. United States Environmental Protection Agency, Office of Pesticide Programs, Washington, (DC). 2000b. USEPA. Preliminary cumulative risk assessment of the organophosphorus pesticides. United States Environmental Protection Agency, Office of Pesticide Programs, Washington, (DC); 2001. USGS (United States Geological Survey). The Quality of Our Nation's Waters -- Nutrients and Pesticides. U.S. Geological Circular #1225. Web Site Address: water.usgs.gov; 1999. Wauchope, R.D. The pesticide content of surface water draining from agricultural fields: a review. J. Environ. Qual. 7:459-472; 1978. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES September 13, 2004 DRAFT 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, September 13, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities EXCUSED: Dick Smith ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Receive a report and review a proposed Council resolution approving modification of the pretreatment program to incorporate a Pilot Project under the United States Environmental Protection Agency ("USEPA") Excellence and Leadership ("XL") Program. Kenny Banks, Water Resources Program Manager, presented this report. The USEPA XL program is designed to offer regulatory relief for programs that achieve "greater environmental benefits" compared to the benefits that would likely be realized under traditional regulatory approaches. In essence, this program encourages improvements and innovation in pollution comrol through regulatory flexibility. In lieu of an ordinance revision, the TCEQ is requiring a resolution of commitment from the Denton City Council that assures continued support of the proposed FPA modifications for the Pretreatment Program XL project. Hopkins moved to accept the proposed resolution without modification, with a second from Gallivan. The motion was approved by a vote of 6-0. Page 1 of 1 EXHIBIT 4 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 21, 2004 Utility Administration Howard Martin, Utilities 349-8232 ~ SUBJECT Consider adoption of a Resolution of the City Council of the City of Demon, Texas authorizing the Mayor to sign and send a letter addressed to officials of the Texas Commission on Environmemal Quality requesting a public meeting on the application of Safety-Kleen Systems, Inc. for Permit Renewal and Amendment to Authorize Continued Receiving, Storage and Processing of Industrial and Municipal Hazardous and Non-Hazardous Wastes (TCEQ Permit No. 50163); and providing an effective date. BACKGROUND The Agenda Committee requested this item be placed on the September 21st City Council Agenda. EXHIBITS 1. Notice from Texas Commission on Environmemal Quality 2. Resolution Respectfully submitted: ACM, Utilities TEXAS COMMISSION ON ENVIRONMENTAL QUALITY NOTICE OF RECEIPT OF APPLICATION AND INTENT TO OBTAIN INDUSTRIAL AND HAZARDOUS-WASTE PERMIT PERMIT NO. 50163 APPLICATION. Safbty-Kleen Systems, Inc., 1722 Cooper CreekRoad, Denton, Denton County, Texas, 76208, a business involved in spent solvent recycling, solvent reclamation, fuels blending, and recoverable fuels marketing, has applied to the Texas Commission on Environmental Quality (TCEQ) for a permit renewal and amendment to authorize continued receiving, storage and processing of industrial and municipal hazardous and non-hazardous wastes. This application also includes a revision to include a new Container Storage Area No. 5 and additional waste codes. The facilityis located at the address shown above. This application was submitted to the TCEQ on March 9, 2004. The permit renewal application is available for viewing and copying at the Denton Public Library, North Branch, 3020 North Locust, Denton, Denton County, Texas. The TCEQ executive director has determined the application is administratively complete and will conduct a technical review of the application. After completion of the technical review, the TCEQ will issue a Notice of Application and Preliminary Decision. PUBLIC COMMENT / PUBLIC'MEETING. .You may submit public comments or request a public meeting about this application. The purpose of a public meeting is to provide the opportunity to submit comments or to ask questions about the application. The TCEQ will hold a public meeting if the executive director determines that there is a significant degree of pub!it interest in the application or if requested by a local legislator. A public meeting is not a contested case hearing. .. Written public comments and requests for a public meeting must ~be submitted to' the Office of the Chief Clerk, MC 105, TCEQ, P.O. Box 13087, Austin, TX 78711-3087. ADDITIONAL NOTICE. After technical review of the application is completed, the executive director may prepare a draft permit and will issue a preliminary decision on the application. Notice of the Application and Preliminary Decision will be published and mailed to those who are on the county-wide marling list or the mailing list for this applicatiOn. That notice will contain .the fin al.deadline.forsubmitting~public.comment~.. EXHIBIT 1 OPPORTUNITY FOR A CONTESTED CASE I-IEARING. After the deadline for public comments, the executive director will consider the comments mad prepare a response to all relevant and material, or significant public comments. The response to comments, along with the executive director's decision on the application, will be mailed to everyone who submitted public comments or who is on the mailing list for this application. If comments are received, the mailing will also provide instructions for requesting reconsideration of the executive director's decision and for requesting a contested, case hearing. A contested case hearing is a legal proceeding similar to a Civil trial.in state district court. A contested case'hearing will only be granted based on disputed issues Of fact that are relevant and material to the Commission's decision on the application. Further, the Commission will only grant a he .aring On issues that were raised during the public comment period and not withdrawn. The TCEQ may. act 0n this application without providing an opportunity for a contested.case hearing if certain criterial are fi/et. ' ' ' MAI][;ING LIST. In addition to submitting public comments, you may ask to be placed on a mailing.list to receive future public notices mailed by the Office of the Chief Clerk. You may request to be added to: (1) the mailing list for this SPecific application; (2) the permanent mailing list for a specific applicant .amc and permit ntimber; and/or (3) the.permanent mailing list for a specific county. Clearly specify whi'ch mailing list(s) to Which you wish to be added and send your request to the TCEQ Office of the Chief Clerk at the address above~ Unless you otherwise specify, you will be included only on the mailing list for this specific application. INFORMATION. If you need more information about this permit application or the permitting process, please call the TCEQ Office of Public Assistance, Toll. Free, at lZ800-687-4040. General information about the TCEQ can be found at our web siie at www.tceq.state.tx.us. Further information may also be obtained from Safety-Kleen Systems, Inc. at the address stated above or by calling Mr. Ken Dobias, Environmental} Health and Safety Manager'at (940) 483-5251. Issued: August 11, 2004 · Kathleen Hartnett White, Chairman R, B. "Ralph" Marquez, Commissioner Larry R. Soward, Commissioner TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Prevenliny Pollution August 11, 2004 The Honorable Euline Brock Mayor City of Denton 215 East McKinney Street Denton, Texas 76201 Applicant Name: Safety-Kleen Systems, Inc. Facility Location: Denton County HazardOUs Waste Permit Number: 50163 Industrial Solid Waste Registration Number: 65124 Regulated Entity Number: RN100215441 Customer Reference Number: CN600128128 Type of Authorization: Renewal Dear Mayor Brock: T{afismitted h~c/th, is the Tekas COmmission on Enviromnenml Quality (TCEQ) Industrial Hazardous Wa'ste'part B .a~p'l~cation for g:permffrenewal and:a copy of the public noticei The TCEQ is currently in the pi'obess'of conducting a tectmidal review of the application to determine compliance with state and federal regulations. Based upon the results of the review of this application, the TCEQ will act to issue or deny the permit within a scheduled time frame. If you have any comments or recommendations which you wish the Commission to consider during this evaluation, please subm/t them within 30 days of the date of this letter. Further information concerning this application may be obtained by viewing the public copy of the application at the Denton Public Library, North Branch, 3020 North Locust, Denton, Denton County, Texas or at the TCEQ Region 4 office located in Fort Worth or by contacting Mr. Dipak Bhakta at (512) 239-2256, or by writinghim at the TCEQ, Office of Permitting, Waste Permits Division, Industrial and Hazardous Waste (MC-130), P.O. Box 13087, Austin, Texas 78711-3087. Sincerely, Donald D. Nelon, Team Leader Air and Waste Applications Team Permits'Adminisffative Re;~iew'Section 0VIC-161)' ' Registrati0ni'Revi~w, and Rep0i-tin~ Divi:~ion '. DDN/pm Enclosure P.O. Box 13087 · Austin, Texas 78711-3087 · 512/239-1000 · Internetaddress:www.tceq.state.tx.us pr hied on recycled paper us ng soy-based nk' Texas Commission on Environmental Quality .ATTN: Industrial and Hazardous Waste Permits Section -MC 130 Permits Division P. O. Box 13087 Austin, Texas 787l 1-3087 INDUSTRIAL AND HAZARDOUS WASTE PART B PERMIT APPLICATION GENERAL INFORMATION A. Facility Name: safeW-Kleen Sys.t.ems, Inc. · ....... (Individual, Corporation, or Other Legal Entity Name) Address: 1722 Cooper Creek Road Ci.ty: Denton State: Telephone Number: 940-483-5200 TCEQ Registration No.: 6512'~l County: Denton TX ,,, Zip Code: 76208 EPA I.D. No.: TXD077603371 If the application is submitted on behalf of a corporation, please identify the Charter Number as re6orded with the Office of the Secretary of State for Texas. COA No. 00029308-6 (Charter Number) Facility Contact 1. List those persons or firms, including'a complete mailing address and telephone number, who will act as primary contact for the applicant during the processing of the permit application. Ken Dobias, Environment, Health, & Safety Manager Safety-Kleen Systems, Inc. - Denton Recycle Center 1722 Cooper Creek Road , Denton, Texas 76208 940-483-5251 Robert Sorensen, Facility Manager (Same information as above) If the application is submitted by a'eorporation or by a pei'son residing oat ofstat'e,'the applicant must register: an Agent in Service or Agent of Service with the Texas Secretary of State's office and provide .a.czmplete mailing address for the agent. The agent must be a Texas resident. C. T. Corporation 350 North Saint Paul Dallas, Texas 76201 TCEQ Pm B Application , TCEQ-0376 (Rev. 06/02/2003) List the individual who will be responsible for causing notice to be published in the newspaper and his/her mailing address, telephone number and fax number. If e-mall is available please provide an e- mail address, Ken Dobias, Environment, Health, & Safety Manager Safety-Kieen Systems,.Inc. - Denton Recycle Center 1722 Cooper Creek Road Denton, Texas 76208 940-483-5251 940-483-5279 (fax) Ken. Dobias~sa fety-kleen.com For applications for new permits, renewals, major amendments and class 3 modifications' a copy of the administratively complete application must be made available at a public place in the county where the facility is, or will be, located for review and copying by the public. Identify the public place in the county (e.g., public library, county cpurt house, city hall), including the address, where the application will be made available for review and copying by the public. _Denton Public Library ,North. Branch_ 3020 N. Locust Denton, Texas If an applicant proposes a new industrial or hazardous waste facility that would accept municipal solid waste, the applicant shall hold a public meeting in the county in which the facility is proposed to be located. This meeting must be held before the 45~ day after the date the'application is filed. In addition, the applicant shall publish notice of the public meeting in accordance with 30 TAC 39.503(e)(5). Existing Facility TCEQ Part B Application TCEQ-0376 CRev. 06/02/2003) Co Operator": Identify the entity who will conduct facility operations. Same a's Applicant Address: City: , Texas Zip Code: Telephone Number: Application Type' and Facility Status .. permit .. amendment . X modification m new major , Class 3 __ interim status minor . .X... Class 2 X . ~:enewa]. Class I ~ __ RD&D ...... Class I ': 2. Is this submittal part of a Consolidated Permit Pr.o~e.ssing request, in accordance with 30 TAC Chapter 33? '' .... Yes X No If yes, state the other TCEQ program authorizations requested. 3. Does the application comain confidential.material7 Yes X No I/yes, cross-reference the confidential material throughout the application to Section XII: Confidential Material, and submit as a separate Section XII document or binder .conspicuously marked "CONFIDENTIAL". 4. In either column, check all that apply. proposed hazardous waste management facility __ on-site m off-site __ commercial __ recycier __ land disposal 5o X existing hazardous waste management facility. , X on-.qite __ off-site .. X. commere'ia[ ' X . reeycler land disposal X areal or.capacity expansion (Capacity) Is the facility within the Coastal Mmaagement Program boundary7 .___Yes. X 'No. Pro--~ide a brief verbal description of the portion of the facility covered by this applicat'ii>~-,, including the changes for which an.amendment Or modification is requested. This application is for the renewal authorization to receive, store, and process industrial and municipal hazardous and non-hazardous wastes. This application includes a revision to include a new Container Storage Area No. 5 and additional waste codes in the renewed application. ~The operator has the duty io submit an application if the facility is owned by one person and operated by another [30 TAC 305.43(b)]. The permit will specify the operator and the owner who is listed on Part A of this application [Section 361.087, Texas Health'and Safety Code]. TCEQ Part B Application 3 TCEQ-0376 0tar. 06/02/2003) Facility Siting Summary . Is the facility located or proposed to be located: 1. within a tOO-year floodplain? YES' NO X 2. in wetlands? YES . NO X in the critical habitat of an endangered species of plant or animal? YES .NO X 4. on the recharge zone of a sole-source aquifer? YES ,_ NO X 5. in an area overlying a regional aquifer? YES .... NO X (for a new commercial hazardous waste management facility or subsequent areal expansion of such a facility or unit of that facility as defined in 30 TAC 335.202) within ~A of a mile (2,640 feet) of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park? YES NO X If YES, the TCEQ shall not issue a permit for this facility. In an area in which the governing body of the county or municipality has prohibited the processing or disposal of municipal hazardous waste or industrial solid waste? YES__NO X If YES, provide a copy of the Ordinance or order. Wastewater and Stormwater Disposition 1. Is the disposal of any waste to be accomplished by a waste disposal well at this facility? · '-X" -'~1-6':- "~':E~ .... (WDW Permit No(s). ) ~ any point source discharge of effluent or rainfall runoffoccur as a resul~ofthe pro. po_~.ed a~tivities? X. YEs __NO If YES, is this discharge regulated by a NPDES or TCEQ permit? X YES Permit No. 043,.3.6 (TCEQ) PermitNo.. TXD0124052 .(NPDES) __ NO. Date TCEQ discharge permit application fried ~ Date NlaDES discharge permit application filed . TCEQ Part B Application TCEQ-0376 trey. 06102,'2003) .l. Adjacent Landowners List An Adjacent Landowners List is Attached. Submit a map indicating the boundaries of all adjacent parcels of land, and a list (see samples in the instructions) of the names and mailing addresses of all adjacent landowners and other nearby landowners who might consider themselves affected by the activities described by this application. Cross-reference this list to the map thro.ugh the use of appropriate keying techniques. The map should be a USGS map, a city or county plat, or another map, sketch, or drawing with a scale adequate enough to show the cross-referenced affected landowners. The list should be updayed prior to any required public notice. Exce£tfor Class I or Class 1~ modifications, please also submit this mailing list on a'3 ~-inch computer disc using soft'ware compatible with WordPerfect, as allowed by 30 TAC 39.5(b). If more convenient, four sets of printed labels of the list may be provided in lieu of a computer disc. If the adjacent landowners lis't is submitted on computer disc, please label the disk with the applicant's name and permit number. Within the file stored on the disk, type the permit number and applicant's name on the top line before typing the addresses. Names and addresses must be typed in the format indicated below. This format is requked by the U.S. Postal Service for machine readability. Each letter in the name and address must be capitalized, contain no punctuation, and the appropriate two-character abbreviation must be used for the state. Each entity listed must be blocked and spaced consecutively as shown below. Example: Permit No. HW-50000, Texas Chemical Plant TERRY M JENKINS RR 1 BOX 34 WACO TX 767 ! 0 MS AND MRS EDWARD PEABODY 1405 MONTAGUE LN WACO TX 76710-1234 A list submitted on computer disc should be the only item on that disc. Please do not submit a list on a disc that includes maps or other materials submitted with your application. If you wish to provide the list on printed labels, please use sheets of labels that have 30 labels to a page. Please provide four complete sets of labels of the adjacent landowners list. TCEQ Core Data Form A Core Data Form is Attached. The TCEQ requires that a Core Data Form (Form 10400) be submitted on aH incoming applications unless a Regulated Entity and Customer Reference Number has been issued by the TCEQ and no core data information has changed. For more information regarding the Core Data Form, call (512) 239-1575 or go to the TCEQ Web site at www.TCEQ.state.tx,us/permitting/pro~ects/cr. Signature on Application It i~ the duty----of the operator to submit an application for a permit. The person who signs the application form~ will often be the operator himself; when another person signs on behalf of the applicant, his title or relationship to the applicant will be shown. In' all cases, the person signing the form must be authorized to do so by the applicant. An application submitted by a corporation must be signed by a responsible corporate officer such as a president~ secretary, treasurer, vice president, or by his duly authorized representative,.ifsueh representative is responsible for the overall operation of the facility fi-om which the activity described in the form originates. ' In the case of a partnership or a sole proprietorship, the application must be signed by a general partner or the · proprietor, respectively. In the case ora municipal, state, federal, or other public facility, the application must be signed by_a pr'_m_cipa[, e~ecutive officer, a i-anking elected, official, or another.duty outhorized.employee. A person signing an application on behalf of an applicant must provide notarized proof of authorization. TCEQ Part B Application 5 TCEQ-0376 (Rev. 06/02/2003) RESOLUTION NO. R2004- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE MAYOR TO SIGN AND SEND A LETTER ADDRESSED TO OFFICIALS OF THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY REQUESTING A PUBLIC MEETING ON THE APPLICATION OF SAFETY-KLEEN SYSTEMS, INC. FOR PERMIT RENEWAL AND AMENDMENT TO AUTHORIZE CONTINUED RECEWING, STORAGE AND PROCESSING OF INDUSTRIAL AND MUNICIPAL HAZARDOUS AND NON-HAZARDOUS WASTES (TCEQ PERMIT NO. 50163); AND PROVIDING AN EFFECTWE DATE. WHEREAS, Safety-Kleen Systems, Inc, 1722 Cooper Creek Road, City of Denton, Denton County, Texas 76208 has applied to the Texas Commission on Environmental Quality ("TCEQ") for a permit renewal and amendment to TCEQ Permit No. 50163 to authorize continued receiving, storage and processing of industrial and municipal hazardous and non-hazardous wastes; and WHEREAS, this application also includes a revision to include a new "Container Storage Area No.5" and additional waste codes; and WHEREAS, the Executive Director of TCEQ has determined that the application is administratively complete, and will conduct a technical review of the application. Upon completion of this review, TCEQ will issue a Notice of Application and Preliminary Decision; and WHEREAS, citizens of the City of Denton, Texas have expressed an interest regarding the above-referenced proposed expansion and permit renewal; and WHEREAS, the City Council desires that all concerned citizens have an opportunity to submit comments and ask questions about the application; and WHEREAS, the City Council believes it is in the public interest to pass a resolution requesting that the TCEQ hold a public meeting regarding the renewal and amendment of TCEQ Permit No. 50163; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City Council of the City of Denton, Texas on behalf of its citizens, wishes to request that a public meeting be held in Denton, Texas to provide an opportunity for its citizens to submit comments and to ask questions about the application of Safety-Kleen Systems, Inc. for renewal of and amendment to TCEQ Permit No. 50163. SECTION 2. That the Mayor of the City of Denton, Texas is hereby authorized by the City Council to write a letter expressing to the appropriate officials of the Texas EXHIBIT 2 Commission on Environmental Quality, the City Council's request for a public meeting on the above-referenced application. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Documents~Resolutions\04\Safety-Kleen Systems - TCEQ - Request for Public Meeting - 2004.doc AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: September 21, 2004 City Manager's Office Mike Conduff, City Manager SUBJECT Consider appointing a voting delegate and an alternate voting delegate to the National League of Cities Annual Congress of Cities. BACKGROUND The National League of Cities Annual Business Meeting will be held on Saturday, December 4, 2004 at the Congress of Cities in indianapolis, indiana. The City of Demon is entitled to cast two votes at the Annual Business Meeting and the delegate(s) must be present to vote. Consideration of the voting delegate and alternate voting delegate should include whether the individual is able to remain a day longer at the conference to participate in the business meeting. Respectfully submitted: Jennifer Walters City Secretary AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 21, 2004 Economic Development ACM: Mike Conduff, City Manager SUBJECT Consider nominations/appointments to the City's Economic Development Partnership Board. BACKGROUND The City Council appointed a nominating committee at the September 7, 2004 meeting to present a slate of nominees for the Economic Development Partnership Board for Council consideration. The following Board positions will be vacant: Perry McNeill - City Council category Randy Robinson - Chamber of Commerce Board category Bob Haley - Top Twenty Taxpayer category Norval Pohl - UNT category Under the ordinance creating the Board, the President of the University of North Texas will appoint the Board member representing UNT. Dr. Pohl has chosen to serve another term. ESTIMATED SCHEDULE EDP Board members will serve two-year terms. Board members may serve three consecutive terms. Respectfully submitted: Linda Ratliff, Director Economic Development Department -1- AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: Legal CM/DCM/ACM: Herbert L. Prouty, City Attorney SUBJECT: Consider adoption of a Resolution of the City of Denton, Texas, authorizing participation in and cooperation with a coalition of cities within CoServ Gas, Ltd's system including the authority to hire legal and consulting services and the authority to negotiate with the Company and to direct any necessary litigation; authorizing the hiring of Diversified Utility Consultants, Inc. to investigate and to respond to the filings of CoServ Gas Ltd.; authorizing intervention in any proceedings at the Railroad Commission; suspending the effective date of CoServ Gas's requested gas rate changes as set forth in their Statement of Intent filed with the City Secretary to permit the City time to study the request and establish reasonable rates; requiring the reimbursement of municipal rate case expenses; requiring notice of this Resolution to the Company; finding that the meeting complied with the Open Meetings Act; making other findings and provisions related to the subject; and declaring an effective date. BACKGROUND: On August 25, 2004, CoServ Gas, Ltd. filed a systemwide request for a gas rate increase requesting $1,165,525 in additional annual revenue. The increase was filed in twenty-five cities in CoServ's current distribution system including the City of Denton. CoServ indicates the gas rate request constitutes an overall 7.3 percent increase in total revenues, (inclusive of gas costs) for CoServ. CoServ's request also includes a number of other increases including a surcharge on customer bills to cover pipeline safety fees assessed by the Railroad Commission, a rate case expense surcharge to cover reasonable expenses relating to the filing of CoServ's Statement of Intent to Increase Rates, an increase in its monthly customer charge, and a request for a declining block rate design which would provide lower proportional rates for high usage, especially during the winter months. Due to the fact, according to CoServ, that it has not had a rate increase in four to five years and that Denton's rates are among the lowest in the system, the rate increase request would fall more heavily on Denton than most cities in the system. CoServ indicates that for Denton customers, residential rates would increase 20.06 percent, commercial rates would increase 25.98 percent and industrial rates would increase 20.21 percent. But the impact of the rate increase may be better reflected by the notice CoServ was required to publish in the newspaper as required by Ordinanee No. 2002-073. According to the attached '2qotice of Gas Rate Increase Request" published by CoServ in the Septcwnber 6, 2004 issue of the Denton Record-Chronicle, aggregate revenues in Denton would increase by $152,144, a 74.09 percent increase in revenues, exclusive of the gas commodity costs. Base rate revenues would increase by 72.96 percent for residential customers and by 143.96 percent for commercial customers. A residential customer using 6 Mcf would see a base rate increase of $10.18 per month while a commercial customer using 30 Mcr would see a base rate increase of $66.26 per month. The total impact of the rate increase on Denton customers could be more when the surcharges and additional monthly customer charges are included. Agenda Information Sheet September 21, 2004 Page 2 As indicated above, CoServ's primary justification for this increase is that due to their very small or limited customer base, they originally set rates that were below a reasonable rate level, have not had a rate increase in four or five years and have spent milhons of dollars on pipelines, metering stations and other equipment. Attached hereto is a Narrative by CoServ accompanying their Statement of Intent to Increase the Rates, which explains their rate increase request in more detail. CoServ has requested an 8.68 percent rate of return on a $24,372,960 rate base. This rate of return is not based on CoServ's capital structure as of March 31, 2004, but is based on a capital structure utilizing local distribution companies (LDC) industry norms. More information on the rate case is included in the City Attorney's confidential status report. On September 8, representatives of Allen, Denton, Flower Mound, Highland Village, McKinney, Piano and The Colony met in The Colony to discuss the CoServ case. They all agreed to pass a resolution suspending the effective date of the rate increase, to work together to jointly review CoServ's rate request and to hire the Lloyd Gossetink, Blevins Rochelle, Townsend firm and C2 Consulting to investigate the rate request and to negotiate with CoServ. OPTIONS: The City Council can approve the Resolution suspending the effective date of the rate increase, authorizing the hiring of the Diversified Utility Consultants, Inc. and cooperating with the coalition of cities. The City Council can pass the Resolution making changes over those proposed by the staff. The City Council can choose not to enact the Resolution and CoServ's gas rate increase that would automatically go into effect on or after October 1, 2004. RECOMMENDATION: The staff recommends that the City Council choose Option I and pass the Resolution suspending the effective date of the rate increase for at least 90 days, authorizing the City Manager to hire Diversified Utility Consultants, Inc. to respond to and investigate this rate increase request, authorizing the City to cooperate with the coalition of cities and authorizing the City Manager to sign a Non-Disclosure Agreement with CoServ. The Resolution would further authorize the Steering Committee of the Coalition of cities to hire the Lloyd, Gosselink finn and C2 Consulting. This is an important and complex rate case. You and your rate consultants will need additional time to fully investigate this matter and to have the necessary information to determine reasonable gas rates for CoServ. If you choose Option 3 and do nothing, then CoServ has the ability to implement the rate increase in Denton within 35 days from the August 25, 2004 filing or on or after October 1, 2004. The passage of the Resolution suspending the effective date of the rate increase is consistent with the exercise of due diligence in gas rate proceedings. Passing the Resolution suspending the rates also follows what the Council has consistently done in alt recent gas rate change requests. Following this procedure in the past has resulted in significant reductions of amounts previously requested by gas companies like TXU Gas. Although CoServ Gas does not have nearly as many gas customers in Denton as TXU Gas, CoServ's system has grown rapidly since its beginning in 1999. During the past four years, CoServ has grown from 57 Denton customers to 1,435 customers. CoServ is certificated to serve S:~0ur Doe tmlel~.~ORl~S&6lS CoServ Rate Requeat.doc Agenda Information Sheet September 21, 2004 Page 2 in some the fastest growing subdivisions in Denton, including Robson Ranch and the Oaks of Montecito. This, coupled with the fact that CoServ is asking for a significant increase in rates that may adversely impact Denton residential, commercial and industrial customers, emphasizes the fact that you need as much time as possible and the help of gas utility experts to fully evaluate this request and make an enlightened decision on reasonable rates for CoServ. FISCAL iMPACT: Under Section 103.022 of the Gas Utility Regulatory Act, all reasonable costs of the rate case consultants are reimbursable to the City by CoServ. Although CoServ has the right to pass rate case expenses on to customers in the form of a surcharge, we anticipate expenses to be a small fraction of the requested increase and the impact on customers to be slight. Based on previous gas rate cases, suspending the rates and cooperating with a coalition of cities to investigate and prosecute the rate case could result in a significant reduction in the mount requested by CoServ. Respectfully submitted: City Attorney Attachments: 1. '~Notice of Gas Rate Increase Request" published by CoServ in the September 6, 2004 issue of the Denton Record-Chronicle. 2. Nan'ative by CoServ. S:~ l~c~m~u~OP.M$~lS 'CoS cr'v I:ta~ e R~tue.~lne :i 1'03 ,525~ ~dl tO )'enton.ijs' Octob'~r as that-term "is.nsed in 'the .Texa~; ..:~.~ '¥.',"~,,.-~,?::,,.'....~ ~:'; C.-:,..'.:i i':' .: ;., ......' "i. ':..':'. 7 Cify..ofDenton.'., ~s.in'tariff. It.iS' aVailabte for.:-,'.: '-. ::~. '" at the office~' et' c0serv at 7701 South stemm0iig~, 1.842. Persons' with questions or who want information about this City of Demon, 'at .~40~349-$200, or CoS.crv ..... Arty 'affected person may file in'.wri~g c0~ints.'~of,~-¢ with the .City. of Denton ..... '~ .... "' "'~- ': ' · ':i- -? ' * ... " .;.. ' .... ' ' I .Ltd; at. 1-80 CoServ Gas, Ltd. Narrative Accompanying Statement of Intent to Increase Rates Year Ended March 31, 2004 CoServ Gas, Ltd. Narrative TABLE OF CONTENTS Page No. Introduction .............................. .' ..................................................................................... 1 Revenue deficiency ........................................................................................................ 5 Rate base ............ : .............................................................................................. Rate of return ................................................................................................................. 9 Expenses ...................................................................................................................... 14 Revenues ........................................... 2 ........................................................................ 20 Cost-of-service study ................................................................................................... 22 Rate design ....................................................... i ........................................ i .................. 23 Revenue Deficiency Calculation .................................................................................. 27 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O · . 3t CoServ Gas, Ltd. Narrative INTRODUCTION CoServ Gas, Ltd. ("CoServ Gas" or the "Company") is proposing a rate increase using historical costs incurred by the Company updated for known and measurable changes. When CoServ Gas set its rates for the first time, there was no historical data to support the rate calculations. Estimates for revenues, expenses, and investment were used, and initial rates were set based upon those estimates. While it was necessary for the Company to make a massive investment in its system infrastructure to meet its future growth requirements, only a handful of customers were initially served. In order to produce a reasonable set of rates for a company with a huge investment and few customers, it was necessary to set rates at a level significantly below what could have been justified. The original set of rates has remained in effect as CoServ Gas has not requested an increase since they were established. Many of these rates have been in place for four to five years. The Company is recommending a single, company-wide rate to replace the 18 different. sets of existing rates. This single set of rates will streamline the review of the Company's proposal and reduce the rate ease expenses that are ultimately passed on to customers. In addition, to assist its customers with the cost of high winter heating bills and to mitigate the adverse impact of weather on the.Company's revenues, the Company is proposing a change from the current straight-line rate structure to a "declining block" desigm A declining block design that lowers rates as consumption increases will result in lower Winter heating bills compared to those that are experienced using flat rates. CoServ Gas's proposal will result in an average bill increase across the Company's service territories of about 7.3%. No one likes to see their utility bills increase; however, the Company believes that its calculation of the increases is very fair. CoServ Gas is eager to work with the cities that wish to review its proposal and develop rates that are fair to both the Company and its customers. COMPANY BACKGROUND CoServ Gas is a new and fast-growing Texas natural gas distribution utility. It is dedicated to providing safe, dependable, and economical gas service to its customers in the Metroplex. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17. 18 19 21 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative The Company's story begins in 1937 when Denton County Electric Cooperative ("Co-op") began operations. Its mission was to provide reliable, affordable electric power to rural homes and communities in North Texas. The Co-op helped fuel the tremendous expansion in the Metroplex, home to some of the nation's fastest-growing communities. To continue to meet the needs of its service territory, the Co-op reinvented itself as CoServ Electric in 1998. CoServ's new mission was to become a single source provider of both electric and gas services. To accomplish this objective, it established several affiliates, including CoServ Gas, which would serve new residential and commercial subdivisions in the Metroplex. CoServ Electric would Continue to provide electric service to its members, but it would also provide CoServ Gas with support services such as meter reading and billing, allowing both companies to enjoy economies of scale. In 1998, CoServ Gas began a massive construction project to install the infrastructure needed to accommodate the predicted growth in the area. Before installing its first meter on a new home, the Company spent mil/ions of dollars for high-pressure steel pipelines, metering stations, and other equipment to provide service to thousands of customers. In February 1999, the Company connected its first customers - two model homes in Flower Mound. Since then, the Company has emerged as the fastest-growing gas distribution utility in the State, with more than 28,000 customers. CoServ Gas has earned a reputation for safety, reliability, and unsurpassed customer service. THE COSERV FAMILY OF COMPANIES TODAY Today, the CoServ family of companies ("CoServ") is still in a tremendous growth mode. In order to accommodate this growth with the least cost, CoServ is structured in a manner that provides for efficiency in staffing and resources. CoServ Gas benefits from the staffing and resources of other CoServ entities. CoServ Electric provides necessary services to CoServ Gas such as engineering, meter reading, executive oversight, accounting, treasury, mapping, information technology, human 1 2 3 4. 5 6 7 8 9 10 ti 12 13 14 .15 I6 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative resources and customer service. Llano Utility Services, Inc. ("Llano Utility Services") provides construction services related to the backbone and infrastructure of the gas system. CoServ Realty GP, LLC ("CoServ Realty") provides necessary off'me space to CoServ Gas. As CoServ Gas grows, required staff'mg and resources are added when necessary and appropriate. COSERV GAS MANAGEMENT When establishing CoServ Gas in 1998, CoServ lacked the in-house expertise to effectively and efficiently construct, grow and operate a gas utility. Therefore, it formed a strategic alliance with TexEnergy Management, L.C. ("TexEnergy"). CoServ recognized the tremendous diversity of expertise and vision provided by TexEnergy and executed a long- term management agreement. Through this agreement, TexEnergy provides necessary management services related to the day-to-day operations'of, the gas utility, as well as necessary construction planning and oversight related to the construction of the Company's gas system. HOW COSERV GAS SETS ITS RATES Under Texas law, utility companies set rates to recover their reasonable and necessary expenses, plus a return on investment. Rates are calculated using the company's revenues and expenses over a t2-month period and its invested capital at the end of the same 12-month period, adjusted for known and measurable changes. As previously discussed, when CoServ Gas set rates for the first time, there was no historical data for the rate calculations. Estimates for revenue, expenses, and investment were used and initial rates were set based upon those estimates. However, it required a massive investment in plant to serve a handful of customers. With no economies of scale, the initial rates based upon the Company's actual costs and invested capital would have been unreasonably high. In order tO produce a reasonable set of initiat rates for a company with a huge investment and few customers, it was necessary to set rates at a level significantly below what might have been justified. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 t9 2O 21 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative Since initially setting rates, the Company has continued to invest in new utility infrastructure and its expenses have continued to increase. A recent review by outside consultants indicated that CoServ was overdue for a gas rate increase. If, however, new rates were to be designed based on the company's total invested capital, unreasonable increases to existing customer rates would occur. The reason that unreasonable rates would have occurred is simple: CoServ Gas has made a massive investment in infrastructure designed to accommodate future growth and to last for decades. Creating an ~nfrastmcmre that is sized to accommodate furore load requirements is beneficial and cost effective for both current and future customers. In an effort to minimize the cost to its customers, CoServ has taken the greatest possible advantage of economies of scale and construction efficiencies. Until the expected customer growth materializes and CoServ's plant assets are more fully utilized, the Company must use these assets to serve a much smaller customer base. Therefore, the rates proposed in this case reflect the portion of the Company's invested capital that is currently serving its existing customers and eliminates the invested capital, along with related cost of service components that are substantially in excess of the level needed to service current customers. As a result, the Company is only asking current customers to provide a return on approximately 70% of the total plant investment. This portion of the Company's current i~vestment in plant represents the portion necessary to serve current customers. In addition, although the Company is foregoing current recovery of and a return on its investment to support future customers, the Company is requesting a recovery of a portion of the deferred costs related to its plant investment held for the benefit of future customers. The portion for which we are requesting recovery is the portion related to customers that now exist but did not exist at the time the plant investment was made, amortized over the remaining useful life of the related plant. The deferred costs are comprised of deferred return and deferred depreciation. In addition, the Company is proposing to increase the monthly customer charge to reflect the fixed cost of making service available to a customer. The Company is also proposing to 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 i6 17 18 19 20 21 22 23 24 25 26 27 28 CoServ Gas, Ltd. Narrative switch from "straight-line rates" to ~'declining block rates", which are rates that drop as a customer uses more gas. Relative to a comparable straight-line rate, declining block rates will lower winter heating bills and help level out customer gas bills throughout the year. MINIMIZING RATE CASE EXPENSES CoServ Gas's initial rates, which are'still in effect, vary from city to city, resulting in many different sets of rates within our service areas. The Company is proposing the consolidation of these different rates into a single, company-wide set of rates. Company-wide rates will minimize future increases in costs associated with the administration of rates - savings that will ultimately be passed on to customers. In addition, rate cases are expensive to prepare and process. The cities', towns' and Company's rate case expenses, whether at the local level or at the Raikoad Commission, are passed on to customers in the form of a surcharge on their monthly billing. Unfortunately, there have been recent examples of surcharges that were as high as the actual rate increase - and occasionally higher. The Company's goal is to minimize rate case expenses - fnrst by filing a consolidated proposal with all cities and towns and then by keeping the discussions at the local level. A Raikoad Commission proceeding is like a major court case, with huge expenses for attorneys, consultants, and expert witnesses. CoServ Gas is hopeful that it Can work with the cities to come up with a mutually satisfactory solution at the local level. REVENUE DEFICIENCY We have calculated a revenue deficiency as of March 31, 2004 by applying the proposed rate of remm to the Company's net invested capital ("rate base"), adding in our operating expenses and federal income taxes, and subtracting our revenues. A summary of this calculation follows: 5 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 CoServ Gas, Ltd. Narrative Rate base Rate of return Return on rate base Expenses, including federal income taxes Total revenue requirement Adjusted revenues Revenue deficiency $ 24,372,960 x 8.68% 2,115,712 5,04_8,353 7,164,065 5~998,540 $ 1,165,525 The numbers presented above have been adjusted for the known and measurable changes discussed below. These adjustments were calculated as of the year ended March 31, 2004. In the following discussion, adjustments will be described, for each component presented above. 1. RATE BASE In general, the-Company's rate base consists of assets acquired over a period of time to provide utility service to its customers. Through a return on this rate base, the Company is able to recover a reasonable profit on its investment and its costs of financing the assets. The Company has been conservative in calculating its rate base by eliminating investments not supporting current customers, and thereby including only approximately seventy perdent (70%) of our total plant investment to date. The amount of plant currently included in rate base was calculated by multiplying the Company's gross plant by a percentage representing the portion utilized by current customers. Generally, the portion utilized by current customers was calculated by dividing the number of current customers utilizing a specific portion of plant by the total number of customers anticipated to be served by this portion of plant. The Company's rate base, reduced by plant that will support future customers, is comprised of the following: 6 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 CoServ Gas, Ltd. Narrative Plant in service Depreciation and amortization reserves Net Plant in Service Prepayments and materials and supplies inventory Cash working capital Customer deposits Contributions in aid of construction Deferred federal income taxes Total rate base $ 29,736,642 .... fl,791,603) 27,945,039 153,853 421,183 (5,212,534) 1,160,702 $ . 24,372,960 A. NET PLANT IN SERVICE The primary component of rate base is net plant in service. This includes utility property, plant and equi'pment, net of accumulated depreciation. Net plant in service was calculated by taking total gas utility plant in service at gross cost, tess accumulated depreciation, plus or minus the following adjustments: 1. Completed construction not classified - completed projects related to plant in service that had not yet been classified in the appropriate plant accounts were added to plant in service. 2. Propane plant - non-utility propane plant was removed from plant in service as was the associated accumulated depreciation. 3. Management fees - accrued but unpaid management fees were removed from plant in service. 4. Plant held for the benefit of future customers ' the portion of the Company's investment in plant that will benefit future customers. 7 1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative AND MATERIALS AND SUPPLIES B. PREPAYMENTS INVENTORY Prepayments were included in rate base at an amount equal to the average month-end balance experienced by the Company over the thirteen months from March 2003 through March 2004. Materials and supplies inventory balance at March 31, 2004 was included in rate base. C. CASH WORKING CAPITAL Cash working capital requirements arise from the delay between the receipt of revenues and when expenses are paid.. An allowance for cash working capital requirements was calculated as 12.5 percent (45 days) of the sum of operating and maintenance and administrative and general expenses and included in rate baSe. This method, described in the Texas Railroad Commission's Natural Gas Rate Review Handbook (page 17),. is consistent with traditional utility ratemaking practices. D. CUSTOMER DEPOSITS The balance in the customer deposits account as of March 31, 2004 was deducted from rate base to allow for the cost free nature of these funds. E. CONTRIBUTIONS IN AID OF CONSTRUCTION The Company receives contributions of cash toward the construction of gas utility plant from developers and builders. The balance in the contributions in aid of construction account ("CIAC") at March 31, 2004, after being adjusted to remove the portion related to future customers, was deducted from rate base to allow for the cost free nature of these funds. F. DEFERRED FEDERAL INCOME TAXES Income tax effects arising from timing differences between income tax and book accounting methods are treated as an adjustment to a utitity's rate base for regulatory purposes. This adjustment is comprised of the following: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I8 19 2O 21 22 23 24 25 26 27 28 29 3O CoServ Gas, Ltd. Narrative To reflect the tax benefits of accelerated versus straight-line depreciation expense, deferred income taxes related to the CoServ Gas system were calculated by determining the timing differences between accumulated depreciation as of March 31, 2004 under the accelerated methods available for tax purposes and the straight-line depreciation method used for ratemaking purposes. Timing differences relating to plant investments benefiting future customers were removed. The remaining timing differences were then multiplied by the corporate federal income tax rate to produce deferred income taxes related to depreciation. This amount is deducted from rate base. A second deferred income tax amount relates to the timing differences associated with CiAC. CIAC is taxed as ordinary income when received, but is used to reduce the plant investment included'on the. Company' s books rather than being included in the Company's revenues. Therefore, the difference between the amount of CIAC included in rate base, less associated amortization through March 31, 2004 was also multiplied by the corporate federal income tax rate to calculate deferred income taxes related to CIAC. This. amount is added to rate base. 2. RATE OF RETURN CoServ Gas is requesting a rate of remm on invested capital of 8.68 percent. This rate of return is based on the capital structure ratios, embedded costs of debt and preferred stock, and cost of equity for a group of large, publicly traded natural gas local distribution companies ("LDCs"). By basing CoServ's rate of return on the cost of capital of other LDCs, CoServ's rates reflect reasonable capital costs associated with providing natural gas service, and is consistent with the standards specified in the U.S; Supreme Court cases of Bluefleld Water Works (1923) and Hope Natural Gas (1944) that require the rate of return to be sufficient to: 1) fairly compensate 9 t 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 CoServ Gas, Ltd. Narrative capital presently invested in the utility, 2) enable the utility to offer a return adequate to attract new capital on reasonable terms, and 3) maintain the utility's financial integrity. A. CAPITAL STRUCTURE Capital structure reflects the mix of capital -- debt, preferred stock, and common equity -- used to finance utility assets. The proportions of a utility's total capitalization attributable to each source of capital are typically used to weight the costs of debt, preferred stock, and common equity in calculating an overall rate of return. The capital structure recorded on the CoServ Gas books reflects that it is organized as a limited parmership and is in its growth phase of operations. Accordingly, the CoServ Gas capital structure as of March 31, 2004 does not serve as a representative basis for developing a fair rate of. return on invested capital. Therefore, a fair rate of return for CoServ Gas was developed using a capital structure based on LDC industry norms. An industry capital structure comports with the principle that rates should reflect the reasonable costs to provide service, and reflect investors' perceptions of the business risks faced by LDCs and the mix of capital best suited to accommodating these risks. Indeed, the Railroad Commission of Texas has routinely used industry capital structures to determine utilities' rates of return, with their use being supported by the Railroad Commission's Natural Gas Rate Review Handbook (page 22). A review of the capital structure data for the ten LDCs in The Value Line Investment Survey's ("Value Line") Natural Gas '(Distribution) industry that have identifiable utility assets equal to at least 80 percent of total assets, pay cash dividends, and who are involved in a merger or acquisition, reveals that the capital structure ratios on average and for the individual LDCs were fairly consistent from year to year over the 1999-2003 period. Accordingly, a capital structure for CoServ Gas equal to the average capital structure ratios of the LDC industry gr°Up at fiscal year-end 2003 of 47.9 percent long-term debt, 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 CoServ Gas, Ltd. Narrative 1.5 percent preferred stock, and 50.6 percent common equity was used for present purposes. B. COST OF DEBT AND PREFERRED STOCK Based upon a review of the data related to the embedded costs of long-term debt at the most recent fiscal year-end for each of the ten LDCs identified earlier, a 6.33 percent average cost of debt for the group was assigned to the debt component of the capital structure. The average embedded cost of preferred stock is 5.50 percent at the .most recent fiscal year-end for the five fn'ms in the LDC group having preferred stock outstanding; therefore, 5.50 percent was assigned to the preferred stock component of the capital structure. It is important to note that the costs of both debt and preferred stock are slightly understated for two reasons. First, for issues that are convertible into common stock, no consideration was given to the cost associated with the convertibility feature, Second, not all issuance expenses were considered, even though they are necessary costs associated with raising debt and preferred stock capital and are properly included in the calculation of the ,cost of these sources of capkal. C. COST OF EQUITY Unlike debt and preferred stock, common equity has no contractual cost, but common stockholders still require a return on their investment commensurate with that available from alternatives having comparable risks. Because the rate of return investors require is not directly.observable, this "cost of equity" must be estimated by analyzing information about current capital markets conditions and employing various quantitative methods that focus on investorst required rates of return. Two general approaches were used to estimate the cost of equity for the group of LDCs -- the discounted cash flow ("DCF") method and the risk premium method -- both of which are widely 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative used to arrive at the rate of return investors require from an investment in the common stock of public utilities. The constant growth DCF model was used to estimate the cost of equity by summing the return investors expect from: 1) dividend yield, and 2) long- term growth. Dividing the dividends expected over the coming year for each of the ten LDCs by their respective recent stock prices produced an average dividend yield of 4.4 percent. Investors' long-term growth expectations were estimated using both historical and projected data. There was considerable variability in the 'alternative growth rates for the individual LDCs in the industry group, ranging from negative values to in excess of 17 percent. Average historical growth rates for the group of ten LDCs ranged from 1.9 percent (10-year dividend growth) to 5.6 percent (10-year earnings growth), with projected growth rates ranging from 2.0 percent (growth in dividends) to 5.9 percent (Value Line's projected earnings growth). Eliminating growth rates that produced implausible cost of equity estimates and narrowing the remaining range taking into account other indicators of investors' growth expectations resulted in a growtlt rate range of 4.6 to 5.6 percent. Combining this growth rate range with an average dividend yield of 4.4 percent produced a DCF cost of equity estimate for the LDC group of between 9.0 and 10.0 percent The cost of equity was also estimated by determining the additional return investors require to forego the relative safety of bonds and bear the greater risks associated with common stock, and then adding this equity risk premium to the current yield on bonds. These risk premium analyses relied on leading studies of equity risk premiums for utilities that employed expectational cost of equity estimates, surveys, and realized rates of return to measure equity risk premiums, and encompassed a variety of time periods and sample groups of utilities. After making adjustments to reflect present capital market condiSons and risk differences, the nine applications of the risk premium method 12 1 2 3 4 5 6 7 9 10 11 I2 13 14 15 'i 16 17 18 19 2O 21 22 23 24 25 26 27 28 CoServ Gas, Ltd. Narrative indicated a cost of equity for the group of LDCs ranging from 9.60 to 14.49 percent. After implausible values were discarded, the remaining range indicated a risk premium range of between 10.74 and 11.88 percent The above analyses implied that the cost of equity for the LDC industry group is in the range of approximately 10.0 to 11.0 percent. This range extends from the top of the 9.0 to 10.0 percent cost of equity range indicated by the DCF analyses through the bottom portion of the 10.74 to 11.88 percent cost of equity range indicated by the' risk premium analyses. Three other factors affecting the cost of equity are: 1) flotation costs incurred in connection with sales of stock, 2) the declining block rate structure proposed by CoServ Gas, and 3) CoServ Gas' small size and closely held ownership. While flotation costs and the declining block rate structure tend to offset each other, it is important to recognize that the 10.0 to 11.0 percent industry cost of equity range is substantially below the cost of equity for CoServ Gas. The reason for this is that, the rate of return investors require from an illiquid investment in a small, start-up operation is considerably greater than the cost of equity for the LDC industry group, which consists of large, well-established firms whose stock is publicly traded. TherefOre, the 11 percent seledted for present purposes from the top of the LDC industry range is appropriate in light of the comparative greater risk faced by CoServ Gas. D. OVERALL RATE OF RETURN Combining the LDC indus'ay capital structure ratios of 50.6 percent long-term debt, 1.5 percent preferred stock, and 47.9 percent common equity with a cost of debt of 6.33 percent, a cost of preferred stock of 5.50 percent, and an 11.00 percent rate of return on common equity produced CoServ's requested overall rate of return of 8.68 percent. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 t4 t5 16 17 18 19 20 21 22 23 24 25 26 27 28 CoServ Gas, Ltd. Narrative 3. EXPENSES Expenses are the final component of the Company's revenue requirement. Expenses include operating and maintenance expenses, administrative and general expenses, depreciation expense, taxes other than income taxes, and federal income tax expense. The Company's books and records are maintained in accordance with the FERC Uniform System of Accounts. The Company expands upon these accounts with the use of sub-accounts. Since the Company maintains its books and records in accordance with the CommissiOn's rules, the amounts included on the Company's books and records are presumed to be reasonable and necessary. The following items were adjusted to reflect known and measurable changes: A. PAYROLL AND RELATED EXPENSES Payroll was adjusted to reflect current annualized payroll costs. Each employee's hourly pay rate was multiplied by 2,080 hours, which is the average number of hours available for work each year (52 weeks multiplied by 40 hours per week). This resulted in the annualized adjusted gross wages, excluding overtime. To calculate annualized overtime, an effective overtime percentage for the year ended March 31, 2004 was calculated and applied to the annualized payroll for hourly employees only. Lastly, total annualized payroll, including overtime, was distributed between expense and capital accounts based upon an adjusted distribution of payroll and overtime dollars during the year ended March 31, 2004. Adjustments were made to the test year distribution of expenses to reflect reclassification to capital investment of expenses for an employee. The difference between the annualized payroll and overtime expense versus the actual payroll and overtime expensed booked during the year ended March 31, 2004 is the adjustment included in the cost of service. 14 l 2 3 6 ? 8 9 I1 12 13 15 16 17 18 19 2O 21 22 23 24 25 26 2? 28 29 3O 31 .CoServ Gas, Ltd. Narrative B. PAYROLL TAXES CoServ Gas, like most employers, is required by Federal and State taws to pay certain payroll taxes for its employees. Applicable Payroll Taxes include Social Security, Medicare, federal unemployment and state unemployment taxes (FUTA and SUTA). The actual rate and wage limits for each of these taxes per the Internal Revenue Service for the tax year 2003 was applied to the annualized payroll and overtime dollars to determine the annualized payroll tax dollars. For calendar year 2003, the Social Security rate was 6.2%, on the first $87,000 of wages paid to an employee during a calendar year. The Medicare rate was 1.45% on all wages, with no wage limit. A Company's FUTA and SUTA rates are individually determined. CoServ Gas' FUTA rate has been set at 0.8% on the first $7,000 of an employee's annual wages and SUTA is 2.7% on the frrst $9,000. Because the distribution of payroll tax dollars should be the same as the distribution of payroll wages, the adjusted year-ended March 31, 2004 distribution of payroll and overtime dollars discussed above was used to distribute the annualized payroll tax dollars. Actual year-ended March 31, 2004 payroll tax expense was then deducted from the annualized payroll tax expense to determine the payroll tax expense adjustment. C. BENEFITS The Company pays for ali of, or a portion of, certain benefits to its employees. These benefits include medical, Life insurance, Accidental Death & Dismemberment ("AD&D"), Long-Term Disability ("LTD") and Pension. Annualized Life insurance, AD&D, LTD and Pension expenses were calculated by applying a rate per-payroll-dollar to the annualized gross payroll dollars. Annualized medical costs were computed using the current employer portion of medical premiums for each employee. Total adjusted benefits costs were multiplied by the distribution of payroll and overtime dollars discussed previously. The adjustment to cost 'of service was calculated by taking the 15 1 2 3 4 5 6 7 8 9 t0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 CoServ Gas, Ltd. Narrative difference between the annualized benefit expense and the year ended March 31, 2004 benefit expense. D. . LOBBYING, ADVERTISING AND CHARITABLE CONTRIBUTION EXPENSES The Company incurred $470 in direct expenses related to lobbying, and no direct expenses related to advertising or charitable contributions on its books for the year ended March 31, 2004. The $470 related to lobbying were removed from expense and a portion of the TexEnergy Management fees related to lobbying activities were removed from annualized Tex_Energy Management fees in the adjustment to affiliate costs. E. REGULATORY, RATE CASE, AND OUTSIDE sERvicES EXPENSES An adjustment was made to normalize regulatory commission expenses based on the two year average of actual costs incurred. In addition, an adjustment was made to reclassify various, expenses to outside, service expense and remove them from the current balance of deferred rate ease costs. Rate case expenses associated with the increase in rates being requested in this filing have not been included in the proposed revenue requirement nor in the proposed base rates. The Company is proposing to recover the reasonable costs incurred, once they are known and measurable at the conclusion of this case, from customers using a separate surcharge provision. F. INSURANCE EXPENSE The Company's insurance premiums are generally set at the beginning of a calendar year, based on certain indicators as of the end of the prior calendar year. So, for the year ended March 31, 2004, the Company's books reflect insurance premiums from both the 2003 and 2004 calendar years, which were based upon certain indicators during the 2002 and 2003 calendar years. To determine the armualized insurance expense using the most recent 16 4 5 6 7 8 9 10 11 12 13 14 15 16 17 i8 19 2O 21 22 23 24 25 26 27 28 CoServ Gas, Ltd. Narrative information, each insurance policy was reviewed to determine if the coverage was still applicable to the Company and if the policy's major indicators had changed. The annualized insurance expenses were then allocated to the appropriate FERC accounts, based upon the applicable indicator (i.e. payroll distribution for Workers' Compensation policy). The resulting difference between the annualized insurance expense and the actual insurance expense booked during the year ended March 31, 2004 was an adjustment to cost of service. G. BILL MATRIX EXPENSES CoServ Gas removed from cost of service all expenses related to services performed by an unaffiliated entity, Bill Matrix. Bill Matrix provides bill payment services via the Internet or telephone. This adjustment was necessary because these expenses are not ongoing. H. AFFILIATE COSTS As previously discussed, CoServ Gas incurs reasonable and necessary costs associated with services provided by CoServ Electric, CoServ Realty, Llano Utility Services and TexEnergy. These costs were annualized using agreed upon monthly fees or actual costs incurred during the year ended March 31, 2004, as appropriate. The Company's current expense ratios were applied to these annualized costs to determine the total annualized expense. Adjustments were calculated as the difference between the annualized expense and the actual expense booked during the year ended March 31, 2004. In addition, the Company has tested each type of cost incurred from an affiliate for reasonableness and has verified that the Company is not incurring costs in excess of those charged to other affiliates or non-affiliates. 17 t 2 3 4 5 6 ? 9 t0 11 12 13 14 15 16 17 19 2O 2] 22 23 24 25 26 2? 28 29 3O 31 CoServ Gas, Ltd. Narrative I. UNCOLLECTIBLE EXPENSE Two adjustments were made to cost of service for uncollectible expense. First, an effective rate was calculated by dividing the 2003 bad debts by the related revenues for that same annual period. This percentage was then applied to annualized revenues for the test year ended March 31, 2004 to determine the annualized uncollectible expense. An adjustment was calculated by taking the difference between the annualized uncollectible expense and the actual uncollectible expense for the year ended March 31, 2004. Second, additional uncollectible expense was calculated on the overall revenue deficiency, using the same ratio. J. DEPRECIATION AND AMORTIZATION EXPENSE Depreciation allows the Company to recover its cost of assets by distributing the assets' cost, less any salvage value, over their useful lives in a systematic and rational manner. The Company calculated annualized depreciation on its distribution 'plant included in rate base by applying the applicable depreciation rates by FERC account. Depreciation rates were determined in a study conducted by Engineering and Compliance Consultants, an engineering consulting company based in Austin, Texas. The consultants reviewed each plant account and compared the service life and net salvage value to the Depreciation Practices for Small Gas Distribution Companies, dated July 25, 1984, and Published by FERC. This information, combined with their experience and knowledge in the natural gas industry, was used to develop the service life and net salvage values used in this rate case. The difference between the annualized depreciation mount and the mount booked during the year ended Mazch 31, 2004 is the depreciation adjustment requested in cost of service. A depreciation adjustment was also calculated relating to the Company's general plant, which includes automobiles, computers and tools. For general plant, the Company tracks each individual item of property, plant and 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 t8 19 2O 21 22 23 24 25 26 27 28 CoServ Gas, Ltd. Narrative equipment, including original cost, date of purchase or acquisition, useful life and salvage value. Each item is depreciated using straight-line rates over the item's useful life. Annualized depreciation for general plant was calculated on the existing plant, property and equipment at the year ended March 31, 2004, using the existing useful lives. This annualized depreciation was then compared to the actual depreciation expense for general plant on the Company's books for the year ended March 31, 2004, to determine the adjustment included in cost of service. Lastly, as discussed previously, amortization of a portion of the deferred costs related to the Company's plant investment held for the benefit of future customers is included, The portion that has been included is the portion related to customers that now exist but did not exist at the time the plant investment was made. Additionally, the revenue requirement impact of deferred taxes associated with the debt component of the deferred remm has been subtracted from the requested amortization expense. K. AD VALOREM TAXES Tangible property in place as of January 1 st of each calendar year is subject to Ad Valorem expenses (i.e. property taxes). The Central Appraisal District in each County where the Company owns property is responsible for assessing or appraising the value of the property in its district. These appraised values are applied to the property tax rates in the individual counties, to determine the Company's Ad Valorem tax expense for the calendar year. The Company's Ad Valorem taxes for the year ended March 31, 2004 have been adjusted to reject a full year's taxes for all property in rate base at the end of the year using the effective tax rate. 19 1 2 3 4 5 6 7 8 9 10 I1 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative L. FEDERAL INCOME TAXES A federal income tax allowance was included in the Company's revenue requirement, which is consistent with the treatment prescribed by the Texas Supreme Court in Suburban Utility Corporation v. Public Utility Commission of Texas (1983). To calculate the income taxes, CoServ's requested return on investment was reduced by interest expense, calculated as the product of rate base and the weighted cost of debt, to arrive at after-tax income. Federal income tax expense was then calculated based on the statutory marginal corporate income tax rate of 35 percent by applying a factor of t.5385 (i.e., 1 / (1 -tax rate)-l) to the after-tax income mount. 4. REVENUES In order to determine the Company's overall revenue deficiency, annualized revenues at current rates were subtracted from the Company's total revenue requirement. To determine annualized revenues at current rates, adjustments were made for year-end customer armualization and weather normalization. The Company started with its per-book "unadjusted" number of customers, volumes and revenues as of the year ended March 31, 2004. The following adjustments to revenues were calculated to reflect the number of customers existing at year-end and to weather normalize related volumes. By reflecting the impact of these adjustments, the customers and volumes are reflected at a level that more accurately depicts the anticipated costs and revenues that will occur during the period the proposed rates will be in effect. Armualizing revenues also allows for the proper matching of customers, volumes, and revenues 'with annualized expenses for the period ended March 31, 2004. A. GROWTH ADJUSTMENT The customer growth adjustment can be broken into the customer charge growth adjustment and the volmnetric adjustment, excluding weather. For the volumetric adjustment, actual customers and volumes by month were used to calculate an average Mcr-per-customer for each town and class. To calculate annualized growth-adjusted revenues, the average Mcf-per-customer was 20 1 2 3 4 5 6 7 9 10 11 12 ~3 14 15 16 17 18 19 20 2t 22 23 24 25 26 27 28 29 30 31 CoServ Gas, Ltd. Narrative multiplied by each month's actual volumes and the actual year-end number of customers. The growth adjustment was then calculated' by subtracting the actual revenues during the year ended March 31, 2004 from the total annualized revenues. For the customer charge growth adjustment, the actual number of customers at the year ended March 31, 2004 for each town and class was multiplied by the annual customer charge to determine the annualized customer charge revenue. Actual customer charge revenue for the year ended March 31, 2004 was subtracted from the annualized customer charge revenue to calculate the amount of the adjustment. B. WEATHER NORMALIZATION ADJUSTMENT A second adjustment was made to revenues to take into consideration the fact that ~he Company's customers' consumption is highly influenced by temperature conditions. Colder than normal temperatures in a year result in higher gas sales and revenues, while warmer than normal temperatures in a year result in lower gas sales and revenues. Because the volumes consumed during the year ended March 31, 2004 are used to set future rates, the volumes can be either over- or under-stated depending on whether the temperatures during the year were either colder or warmer than normal. Therefore, it is necessary to adjust revenues, so there is no over- or under-statement. First, a base-load ~olume level was calculated for each class of customers in each town. An average volume level was calculated, using June, July, August and September volumes, which are typically the lowest usage months. Since usage during these months is generally for non-heating type uses, this average usage is assumed to be the base-load. This base-load was then deducted from each individual month's usage, in order to calculate each month's heat-load volumes. These volumes were then multiplied by the heating degree-day 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 3 16 17 18 19 20 21 22 23 24 25 26 27 28 29 3O 31 CoServ Gas, Ltd. Narrative factor, which is the monthly total heating degree-days divided by the 30-year total heating degree-days. This results ~n weather adjusted heat-load volumes by month. Then, the base-toad volumes by month were added back to the adjusted heat toad volumes, in order'to determine the total adjusted volumes. To get the total weather adjusted revenues, the adjusted ¥olumes are multiplied by the year-end number of customers and by the volumetric rate. The volumetric growth adjustment was then subtracted from this volumetric weather adjustment to determine the final weather adjustment. 5. COST-OF-SERVICE STUDY As the basis for developing its proposed rates, CoServ Gas conducted a .cost-of- service ("COS") study, which is an engineering, accounting, and economic analysis that allocates the total cost of providing service among a utility's different customer classes. Many of a utility's operating expenses and much of its investment are incurred to serve all customers to a greater or lesser extent. Because these joint and common costs cannot be directly related to specific customers, they must be apportioned among customer classes. This apportionment is accomplished through a COS study in which operating and capital costs are allocated using factors developed from various operating data intended to reflect cost causation. The sum of the costs allocated to each customer and/or customer class in the COS study represents class revenue requirements, or that portion of the utility's total costs for which a particular customer class is responsible. The frrst step in conducting the COS study was to separate the Company's adjusted rate base and revenue requirements by FERC account, which identifies the function and content of each investment and/or cost. The next step was to develop various allocation factors to reflect the relative responsibility of each of the Company's customer classes for different investment and operating costs based on cost-causal relationships. These allocation factors were derived from usage, operating, and other data, and are intended to capture the relative contribution or responsibility of each customer class to the system as a whole. 22 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 30 31 CoServ Gas, Ltd, Narrative Each FERC account was then examined to judge its nature and cost-causal characteristics, with the amount in each account being allocated between the Company's customer classes using a corresponding allocation factor. For example, · CoServ's investment in meters was allocated based on .a study of the number of customers in each class and the relative costs of the meters required by Residential versus Commercial customers, while costs related to customer records and billing were allocated based simply on the number of customers in each class. Concurrent with this' cost allocation, the amounts in each account were classified as being either primarily customer-related (i.e., varying with the number of customers) or capacity- related (i.e., varying with the need to meet peak demand) and commodity-related (i.e., varying with the amount of gas delivered). The amounts allocated to each customer class were then summed to calculate class revenue requirements, or the total cost of service for each customer class. 6. RATE DESIGN Having determined the cost of providing service to each of these major customer classes, the next step was to design rates, or the prices to be included in the tariffs, that will produce revenues equal to the cost of providing service to each class. CoServ Gas's current rates consist of a monthly customer charge plus a uniform rate applied to each hundred cubic feet (Ccf) consumed during a month. CoServ proposes to increase the monthly customer charge and adopt a declining block rate structure where the price for additional amounts consumed during a month decreases. A. CUSTOMER CHARGE .The customer charge is a rate billed to customers each month irrespective of gas consumption. Sometimes referred to as a facilities charge or availability charge, it is intended to reflect that plant investment and operating costs are incurred simply to make service available to a customer. Ir~ mm, the customer charge recovers all or a portion of the capital and operating, costs associated with having a customer connected to the utility system. At a minimum, these customer-related costs consist of the capital and operating costs associated 23 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 CoServ Gas, Ltd. Narrative with meters, services, and house regulators; customer accounts, customers service and information; sales expenses; and corresponding general plant and administrative and general expenses. To minimize rate case expenses, CoServ did not include costs associated with mains in this study, resulting in lower customer-related costs. Dividing these minimum customer-related costs indicated by the COS study for each customer class by the number of customers in that class and twelve months produces the following monthly per customer costs: Description Customer-Related Costs Number of Customers Number of Months Billings Un/ts Monthly Customer Cost Residential Comm~ci~ $3,249,049 $198,786 25,628 431 12 t2 307,536 5,172 $t1' $38 CoServ is proposing that the customer charges for the Residential and Commercial classes be increased only to $11.00 and $25.00 per month, respectively. B. COMMODITY CHARGES As discussed earlier, CoServ proposes to move from a uniform rate per Ccfto a traditional three-step declining block rate structure. Under a declining block structure, more capacity-/commodity-related costs are recovered in the initial usage blocks than in the ta[t blocks. Besides resulting in rates that tend to better match cost incurrence, decl]n/ng block rates also recognize that some cost elements decrease on a unit basis as usage increases and that load factor may increase with higher use. Additionally, customers' bills are moderated during the winter because h~gher usage is billed at lower marginal rates. 24 1 2 3 4 5 6 7 8 9 10 11 12 t3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 CoServ Gas, Ltd. Narrative Declirfing block rates were developed by first identifying proper block intervals or block breaks. This was accomplished by analyzing the monthly usage patterns of each customer class to determine base load, intermediate load, and heating load. The frrst block was established to reflect year-round base load, with the third block capturing winter peak heating load and the middle block falling between the two seasonal extremes. The block intervals that were selected for each customer class are shown below (in Ccfs): Description Residential Commercial Blocks: First 0 to 20 0 to 300 Second 21 to 70 301 to 500 Third >70 >500 The next step was to analyze bill frequency distribution data for each customer class for each month to determine the number of billing units (i.e., Ccf) that fei1 into the blocks identified above. Then, after accounting for the revenues that would be produced through CoServ's proposed customer charges, unit rates per Ccf were calculated that, when multiplied times the billing units in each block, resulted in total class revenue requirements. For both customer classes, the unit rates for the second and third blocks were set equal to $0.05 per Ccf lower than the previous block. The. following table · displays the unit rates per Ccf for each class and block (excluding gas costs) Description Residential Commercial Blocks: . First $0.2022 $0.2519 Second $0.1522 $0.2019 Third $0.1022 $0.1519 25 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 3i CoServ Gas, Ltd. Narrative C. MISCELLANEOUS SERVICE CHARGES CoServ proposes only minor modifications to i~s existing Schedule of Miscellaneous Service Charges. Most of these fees are predicated on the normal time required to perform the service and an average hourly employee cost rate. To account for wage and benefit increases since the Schedule of Miscellaneous Service Charges was first implemented, CoServ proposes to increase the .hourly rate underlying most of these charges from $35 to $42, which is supported by a current labor cost study. Except for meter tampering charges, service restoration following non-payment, and duplicate trip charges, which were set at levels intended to encourage operational efficiency, all other miscellaneous service charges will be billed to customers at their actual cost to the Company. D. SURCHARGES CoServ is proposing two surcharge provisions. The first is for collection of Pipeline Safety Fees assessed against CoServ under Section I21.211 of the Texas Utilities Code .and the Commission's Rule at 16 TAC § 8.201. The Commission's rule sets out the mount of the surcharge and the manner in which it is to be collected. The second surcharge is to recover CoServ's reasonable rate case expenses for this case, plus costs reimbursed to municipalities under the municipal reimbursement provisions of the Texas Utilities .Code. CoServ is proposing to recover such costs and expenses over 36 months, together with interest on the declining balance. E. PURCHASED GAS FACTOR CoServ is proposing to continue use of the same Purchase Gas Factor provision that previously has been approved by all cities and the Railroad Commission. The only change is to delete the "Special Transition Provision" that was solely for the purpose of the transition from the previous gas cost 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I9 2O 21 22 23 24 25 26 27 28 g CoServ Gas, Ltd. Narrative recovery provision to the current provision. The caption of the provision has also been revised to refer to "Schedule 2" instead of"TariffNo. 1." Several years ago, CoServ was able' to begin buying its gas supplies from companies other that TXU Gas Company, the company that had been its sole supplier. At present, the gas purchased by CoServ is transported by TXU under a fu'm transportation contract. Although CoServ must purchase gas at market prices that 'it does not control, CoServ has been able to achieve substantial gas cost savings over the prices it would have paid had it continued to purchase its gas supplies from TXU. REVENUE DEFICIENCY CALCULATION Descrk>tion Plant in Service, Net Contributions in Aid of Construction Other Rate Base Rate of Return Return on Rate Base Depreciation and Amortization Expense Operating and Maintenance Expense Taxes Other Than Income Taxes Federal Income Taxes Revenue Requirement Test Year Adjusted Revenue Revenue Deficiency Current 27,945,039 (5,212,534) 1,640,455 24,372,960 2.94% 716,522 Adjusted Test Year 27,945,039 (5,212,534) 1,640,455 24,372,960 8.68% 2,115,712 755,759 3,372,909 178,381 741,304 7,164,065 5,998,540 1,165,525 27 RESOLUTION NO. AN RESOLUTION OF THE CITY OF DENTON, TEXAS AUTHORIZING PARTICIPATION IN AND COOPERATION WiTH A COALITION OF CITIES WITHIN COSERV GAS LTD'S SYSTEM INCLUDING THE AUTHORITY TO HIRE LEGAL AND CONSULTING SERVICES AND THE AUTHORITY TO NEGOTIATE WITH THE COMPANY AND TO DIRECT ANY NECESSARY LITIGATION; AUTHORIZING THE HIRING OF DIVERSIFIED UTILITY CONSULTANTS, INC. TO INVESTIGATE AND TO RESPOND TO THE FILINGS OF COSERV GAS LTD.; AUTHORIZING INTERVENTION IN ANY PROCEEDINGS AT THE RAILROAD COMMISSION; SUSPENDING THE EFFECTIVE DATE OF COSERV GAS'S REQUESTED GAS RATE CHANGES AS SET FORTH IN THEIR STATEMENT OF INTENT FILED WITH THE CITY SECRETARY TO PERMIT THE CITY TIME TO STUDY THE REQUEST AND ESTABLISH REASONABLE RATES; REQUIRING THE REIMBURSEMENT OF MLINICIFAL RATE CASE EXPENSES; REQUIRING NOTICE OF THIS RESOLUTION TO THE COMPANY; FINDING THAT THE MEETING COMPLIED WITH THE OPEN MEETINGS ACT; MAKING OTHER FINDINGS AND PROVISIONS R_ELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, on or about August 25, 2004, CoServ Gas, Ltd., hereinafter referred to as CoServ, filed with the City of Denton, Texas, ("City") a Statement of Intent to Increase Gas Rates in all municipalities within the CoServ distribution systems; and WHEREAS, the rate request by CoServ is system-wide and complex requiting specialized expertise of experts who specialize in ratemaking proceedings initiated by pubhc utilities; and and WHEREAS, the City needs time to analyze and study the rate requests filed by CoServ; WHEREAS, the Gas Utility Regulatory Act grants local regulating authorities the right to suspend the effective date of proposed rate changes; and WHEREAS, on a systemwide basis the CoServ rate request totals about $1,165,525 in annual increases in gas rates in 25 cities including the City of Denton; and WHEREAS, the Gas Utility Regulatory Act provides that municipalities shall be reimbursed for their reasonable rate case expenses by the regulated utility; and WHEREAS, the Gas Utility Regulatory Act grants local regulatory authorities the right to intervene in rate proceedings before the Railroad Commission; and WHEREAS, the City Council believes it is reasonable for the City to cooperate with other cities in a review of CoServ's rate application and that the City should participate with other cities in such a coalition to coordinate the hiring and direction of legal counsel and consultants to negotiate with CoServ and direct any necessary litigation on behalf of the coalkion of cities; and WHEREAS, the City Council believes it should also hire Diversified Utility Consultants, Inc., qualified experts in gas rate requests who have represented the City in previous gas rate change requests who are being selected solely on the basis of their professional qualifications and expertise, in order to investigate and analyze this gas rate request on behalf of the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the findings set out in the preamble to this Resolution are hereby in all things approved and adopted. SECTION 2. The effective date of the tariff changes submitted by CoServ on or about August 25, 2004 with the City are hereby suspended for ninety days fi:om the originally scheduled effective date of October I, 2004 and for such additional time as the parties may agree upon in order to permit adequate time for the proper review of the CoServ Statement of Intent to Increase Gas Rates and to establish reasonable rates. SECTION 3. The City is authorized to cooperate with other cities in a coalition of cities and authorizes the Steering Committee of the coalition to hire, direct, and guide the lawyers and consultants who are representing said coalition of cities, negotiate with CoServ, make recommendations to the City regarding reasonable rates and to d/rect any necessary litigation and administrative proceedings associated with an appeal of a rate ordinance. SECTION 4. The City Council approves the employment of Diversified Utility Consultants, Inc. to represent the City with regard to the CoServ's Statement of Intent filed with the City and authorizes the City Manager to execute a consultant contract with Diversified Utility Consultants, Inc. to analyze and investigate CoServ's gas rate request and to enter into a Non- Disclosure Agreement regarding confidential material with CoServ after the contract is drafted and approved as to form by the City Attorney. SECTION 5. The City, in coordination with the coalition of cities, shall review the invoices of its consultants for reasonableness before submitting such invoices for reimbursement pursuant to Section 103.022 of the Gas Utility Regulatory Act. SECTION 6. That the City's reasonable rate case expenses shall be reimbursed by CoServ. SECTION 7. That the City is authorized to intervene in any appeal at the Raikoad Commission regarding CoServ's rate case filed on or about August 25, 2004. SECTION 8. That the City Secretary is directed to send a true and correct copy of this Resolution to Charles D. Harrell, Chief Financial Officer, CoServ Gas, Ltd., 7701 South Stemmons, Corinth, Texas 76210-1842. Page 2 of 3 SECTION 9. That the meeting at which this Resolution was approved was in ali things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code Chapter 551. SECTION 10. This Resolution shall be effective immediately upon passage. PASSED AND APPROVED this the 2004. day of EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 3 of 3 AGENDA INFORMATION SHEET AGENDA DATE: September 21, 2004 DEPARTMENT: Legal CM/DCNUACM: Herbert L. Prouty, City Attorney SUBJECT: Consider and adopt an Ordinance amending Ordinance No. 2004-182 and Section 2-29 of the City Code relating to Rules of Procedure for the City Council of the City of Denton, Texas; providing adjustments to the time limits for citizen reports and requiring groups of ten or more speakers to provide written designation to the City Secretary of their speaker representative; providing for the placement of citizen reports on the City Council agendas; and making such other changes as are set forth herein; providing a savings clause; providing a severability clause; and declaring an effective date. BACKGROUND: At your recent retreat of July 22-23 and at your luncheon meeting of August 16 where you debriefed your retreat, you discussed changes in the Rules primarily affecting citizens speaking before the Council. You directed that the Rules be amended to provide for the placement of citizen reports at the end of the agenda, to reduce the time for citizen reports from five (5) to four (4) minutes, and to require groups often (10) or more speakers to provide written notification to the City Secretary of their speaker designees prior to their presentation. You also have requested that an announcement be made prior to the beginning of the citizen's report that summarizes the Rules and the Code of Conduct requirements of Section 3 of your Rules that apply to citizens. Section 2.14 (14) of the Rules requires that prior to enacting amendments to the Rules, you must introduce the amendments at a prior Council meeting. We believe this requirement has been met by your discussion of these amendments at your retreat and your luncheon meeting, both of which were meetings conducted in accordance with the Open Meetings Act. PRIOR ACTION/REVIEW: The proposed Ordinance would reduce the speaking time for citizen's reports from a maximum of five (5) minutes to a maximum of four (4) minutes, and amends the Rules to place citizen reports on the agenda after the approval of "items for individual consideration" and before the item "consideration of new business." This seems a logical place for the "citizen reports" since olden citizen reports trigger requests by Council members for placement of items on future agendas under the "new business item." The proposed Ordinance would require groups often (10) or more speakers who are going to be appearing on one of your upcoming agendas to contact the City Secretary before the meeting and notify her in writing of the person designated to speak on behalf of the group. It also requires an announcement summarizing the main portions of the Rules and the "Code of Conduct" that apply to citizen speakers. Finally, there have been some minor typographical changes to the Ordinance to correctly reference certain matters. OPTIONS: Agenda Information Sheet September 21, 2004 Page 2 1. Pass the Ordinance making these changes in the Rules. 2. Pass an Ordinance with changes over the proposed Ordinance. 3. Don't pass the Ordinance. RECOMMENDATION: Staff has no position on this matter. Council has discussed making these changes in the current Rules especially your Rules dealing with citizen reports. The changes would tend to provide for a more orderly process and result in more efficiency. FISCAL IMPACT: The proposed Ordinance has no fiscal impact. Respectfully submitted: H City Attorney ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 2004-182 AND SECTION 2-29 OF THE CITY CODE RELATING TO RULES OF PROCEDURE FOR THE CITY COUNCIL OF THE C1TY OF DENTON, TEXAS; PROVIDING ADJUSTMENTS TO THE TIME LIMITS FOR CITIZEN REPORTS AND REQUIRING GROUPS OF TEN OR MORE SPEAKERS TO PROVIDE WRITTEN DESIGNATION TO THE CITY SECRETARY OF THEIR SPEAKER REPRESENTATIVE; PROVIDING FOR THE PLACEMENT OF CITIZEN REPORTS ON THE CiTY COUNCIL AGENDAS; AND MAKING SUCH OTHER CHANGES AS ARE SET FORTH HEREIN; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the Constitution and Laws of the State of Texas, and Section 2.07 of the City Charter of the City of Denton, Texas, here/nafter refen'ed to as City, authorize the City Council of the City to promulgate and establish roles of procedure to govern and conduct meetings, order of business, and decorum, while acting as a legislative body representing the City; and WHEREAS, the City Council consolidated all the amendments to the City's Rules of Procedure (Rules) into one ordinance with a passage of Ordinance No. 2004-182 on July 20, 2004; and WHEREAS, in accordance with Section 2.14 of Ordinance No. 2004-182 and Section 2.29(b)(14) of the City Code, the proposed amendments to the Rules have been introduced and discussed in the Council's prior meetings of July 22-23, 2004 and August 16, 2004, both of which were held in accordance with the Texas Open Meetings Act, Chapter 551 of the Government Code; and WHEREAS, the City Council deems it necessary to make certain amendments to the Rules of Procedure governing citizens' presentations before the City Council to ensure that meetings continue to be effective and efficient; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: ~qEC. TION 1. That the findings stated in the Preamble are incorporated into this Ordinance for all purposes. 5LECTJD2~2. That the following sections and subsections of Ordinance No. 2004-182 and Section 2-29 of the City Code are hereby amended to read as follows: 6.4.a. (2-29(0(4) - Citizen Repnrt~: Any person who wishes to place a subject on the Council agenda at regular City Council meetings shall advise the City Manager's office of that fact and the specified subject matter which he or she desires to place on the agenda no later than 5:00 p.m. Wednesday prior to the Council meeting at which he or she wishes the designated subject to be considered. A time for such citizen reports shall be provided on the agenda after the approval of items for individual consideration and before the item "consideration of new business." Any speaker providing a citizen report shall speak for no longer than four (4) minutes on all items that he or she may bring before the Council at each meeting, unless the Mayor or the majority of the Council grants an extension of time. No citizen may fill out a "request to speak" form or have an opportunity to speak or comment on another citizen's report, which is given at the same Council meeting. An announcement shall be made, prior to the time for citizen reports on the agenda, summarizing the main portions of the Rules and Section 3 (2-29(c)), "Code of Conduct" as they may apply to citizens speaking to the Council. 6.4.b. (2-29(f)(4) - Speaking an R%mlar and Con.qent Agenda Items: Any person who wishes to address the Council regarding a non-public hearing item that is on the Council's agenda for a regular or special meeting, shall complete a "request to speak" form asking to speak regarding the item and shall return it to the City Secretary before the Council considers the item. Any person wishing to address the Council on a pubhc hearing item should complete a request to speak form and return it to the City Secretary. The Mayor will call upon the citizen to speak for no longer than three (3) minutes as that particular agenda item is considered by the City Council except that persons giving citizen reports shall speak for no longer than four (4) minutes and applicants and their agents on pubhc heating items shall be allowed to speak for no longer than five (5) minutes or as indicated in paragraph 6.4.d. (5) "Time 1Jmitq." The provisions of this paragraph do not apply to workshop meetings, and a citizen's right to speak and provide input at these meetings shall be limited and controlled by subsection 4.3 (2-29(d)(3)) "Workshop Meetings". 6.4(d) (2-29(0(4) - Any group or organization comprised often or more members present in the City Council Chambers who wishes to address the Council at a public hearing or on a non- public hearing agenda item shall designate a representative to address the City Council and shall limit their remarks to ten (10) minutes or less. The group or organization shall mm in a written designation to the City Secretary prior to the commencement of the meeting identiBfing the representative who will address the City Council on behalf of the group or organization. 6.5 (5) (2-29(0(5) - Time Limits: Speakers before the Council shall limit their remarks to no more than three (3) minutes for public hearing items provided that applicants for land use or other public hearing items and their agents shall limit their remarks to five (5) minutes or less per speaker and shall have a maximum of fifteen (15) minutes to speak to the item. Citizens reports shall be limited to four (4) minutes or less. Groups or organizations comprised of ten or more members shall limit their remarks in accordance with the parameters established in paragraph 6.4d (2-29(0(4). At the discretion of the presiding officer or a majority of the City Council, any speaker may be granted an extension of time to speak. 7.9 (9) (2-29(g). Vating R~uired: No member shall be excused from voting except for lack of information and except on matters involving the consideration of his or her own official conduct, or where his or her personal interests are involved in accordance with Chapter 171, TEX. LOC. GOV'T CODE ANN. (Vernon 2003), and in these instances he or she shall abstain. Any member prohibited from voting by personal interest shall announce this at the commencement of consideration of the matter and shall not enter into discussion or debate on any such matter and shall leave the meeting room. The member having briefly stated the reason for his or her request, the excuse fi.om voting shall be made without debate. PAGE 2 SECTION q. That save and except as mended hereby, all the remaining clauses, sentences, paragraphs, sections and subsections of Ordinance No. 2004-182 and Section 2-29 of the Code of Ordinances shall remain in full force and effect. SECTION 4. That if any section, subsection, paragraph, sentence, clause, phrase or word in this Ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 5. That this Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY B Y: ~~~'~,~"~~ PAGE 3