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October 19, 2004 Agenda
AGENDA CITY OF DENTON CITY COUNCIL October 19, 2004 After determining that a quorum is presem, the City Council of the City of Demon, Texas will convene in a Work Session on Tuesday, October 19, 2004 at 4:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: Receive a report, hold a discussion, and give staff direction regarding the City's existing ordinance dealing with water and wastewater leak adjustments to customer billing; revisit underlying policy. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of October 19, 2004. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the TEXAS GOVERNMENT CODE, as amended, as set forth below. 1. Closed Meeting: mo Consultation with Attorney -- Under TEXAS GOVERNMENT CODE Section 551.071. Discuss and consider legal issues concerning the City of Demon's municipal drainage operation as it has and is being operated as a public utility as a drainage function of the Wastewater Utility System, under the Municipal Drainage Utility Systems Act, in accordance with Ordinance No. 2001 - 428 and other applicable law, including the legal aspects of how it has functioned as a utility under the law as compared to other municipal operations where to discuss these legal issues in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Receive a briefing regarding San Angelo Electric Services Company ("SESCO") claim which has been asserted against the City of Demon, Texas and numerous other entities; receive a consultation from the City's attorney on a matter in which the ethical duties of the attorney under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly require such a consultation to be held in private; discuss options regarding same; and provide guidance to Staff and/or a recommendation to Staff. o Consider and discuss status of litigation styled Robinson v. City of Denton, Cause No. 2003-60130-393, currently pending in the 21 lth District Court of Denton County, Texas. City of DeNon City Council Agenda October 19, 2004 Page 2 Receipt of legal advice from the City Attorney regarding the award of Special Commissioners and procedural options in condemnation proceeding styled The City of Denton, Texas v. Ed Wolski, et al., Cause No. ED-2003-01177 pending in the Probate Court of Denton County, Texas. o Consultation with the City's attorneys on legal matters concerning amendments to the Development Code to require a specific use permit for all multi-family developmem and related procedural issues, where to discuss such matters in public would conflict with the duty of the attorneys to the City Council and City under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Bo Deliberations regarding real property - Under TEXAS GOVERNMENT CODE Section 551.072, Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Deliberate the value of real property imerests for the fee acquisition of approximately 88.56 acres and donation of approximately 34.89 acres, both being a part of the James Edmondson Survey, Abstract-401, and the James L. Harris Survey, Abstract A-5555, located at the southwest corner of Vintage Boulevard and Bonnie Brae Street, and the fee acquisition of approximately 10.186 acres being a part of the Thomas Toby Survey, Abstract No. 1285, located along the north side of FM 1515 (Airport Road), northeast of Westcourt Road, (the "Properties"), which are being acquired for a public purpose, and receive legal advice from the City Attorney or his staff concerning legal issues regarding the acquisition and donation of such real property imerests. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE 'PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Demon City Council on Tuesday, October 19, 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." City of DeNon City Council Agenda October 19, 2004 Page 3 2. PROCLAMATIONS/PRESENTATIONS Proclamations/Awards October Yard-of-the-Month Awards 3. 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-H). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. If no items are pulled, Consent Agenda Items A-H below will be approved with one motion. If items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. A. Consider approval of the minutes of September 7, 14, 20 and 21, 2004. Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of Electric Rubber Insulated Termination and Separable Connector Goods and Accessories for DeNon Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (Bid 3187 - Annual Comract for Electric Rubber insulated Termination and Separable Connector Goods and Accessories awarded to Hughes Supply in the estimated amoum of $152,000). Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of Automatic Throw Over (ATe) Switches for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (Bid 3220 - Annual Price Agreemem for ATe Switches awarded to Hughes Supply in the estimated amoum of $85,160). Consider adoption of an ordinance of the City of DeNon, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Promotional Commercials from Comcast Advertising, Denton, Texas, pertaining to DeNon Municipal Electric, which are available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 3245 - Comcast Advertising in the amoum of $48,324). Consider adoption of an ordinance of the City of DeNon, Texas authorizing payment of the award of Special Commissioners into the Registry of the Court in condemnation proceeding styled The City of Denton, Texas v. Ed l/Volski, et al., Cause No. ED-2003-01177 pending in the Probate Court of Denton County, Texas; and declaring an effective date. City of Demon City Council Agenda October 19, 2004 Page 4 Fo Consider adoption of an ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a Professional Services Agreement with R. J. Covington Consulting, LLC for consulting services relating to Task Order No. 04-C; providing for continued participation in the ongoing electric matters before the Texas Public Utilities Commission and the Electric Reliability Council of Texas by Denton Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. Go Consider adoption of an ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a Professional Services Agreement with R. J. Covington Consulting, LLC for consulting services relating to Task Order No. 04-D; providing for continued support in the ongoing electric wholesale market design project by Denton Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. Ho Consider approval of tax refunds for the following property taxes: Tax Name Reason Year Amount ~ po~ e ode S~P~nt~ ~g~ $~ 6g 2. Price Westwind DCAD Supplemental Change 2003 8,011.19 4. PUBLIC HEARINGS mo Hold a public hearing inviting citizens to comment on the proposed usage of the 2004 Local Law Enforcemem Block Gram funding. Bo Hold a public hearing and consider adoption of an ordinance rezoning 3.96 acres from a Neighborhood Residemial 2 (NR-2) zoning district to a Neighborhood Residemial 4 (NR-4) zoning district. The property is generally located on the east side of Locust Street, approximately 400 feet south of Windsor Street. The Planning and Zoning Commission recommends approval (7-0). (Z04-0034, Jamart Estates) Co Cominue 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) 5. ITEMS FOR INDIVIDUAL CONSIDERATION mo Consider adoption of an ordinance of the City Council of the City of Demon, Texas, authorizing the City Manager, as Denton's duly authorized representative, to accept a water quality grant from the United States Environmental Protection Agency ("USEPA"); authorizing the City Manager to act on behalf of the City of Denton in all matters related to the grant, including funding the City's cost share of the grant; and pledging that the City of Denton will comply in all material City of DeNon City Council Agenda October 19, 2004 Page 5 respects with the project requirements of the grant (demonstrating the impacts of oil and gas exploration on water quality and how to minimize these impacts through targeted monitoring activities and local ordinances; award amount funded by USEPA - $157,100; DeMon's cost share - $ 88,041); and providing an effective date. Bo Consider approval of an exaction variance of Section 35.20.2 (M)(2) of the Code of Ordinance concerning improvements to offsite streets. The 3.96-acre parcel is located on the east side of Locust Street/FM2164, approximately 400 feet south of Windsor Drive. The Planning and Zoning Commission recommends approval of a partial variance (7-0). (V04-0024) C. Consider appoimmems to the City's Economic Developmem Partnership Board. Do Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: mo B. C. D. E. Joel Kesterson regarding gas wells near residemial neighborhoods. Cindy McTee regarding gas wells near residemial neighborhoods. Lillie Clark regarding gas wells near residemial neighborhoods. Les Brothers regarding gas wells near residemial neighborhoods. Robert Donnelly regarding drainage issues. mo New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Fo Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Go Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Ho Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of DeNon, Texas, on the day of ,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 HEAR1NG IMPAIRED IF REQUESTED AT LEAST 48 HOURS iN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-TX SO THAT A SIGN LANGUAGE iNTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. CITY COUNCIL AGENDA INFORMATION SHEET AGENDA DATE: October 19, 2004 DEPARTMENT: Utilities/Customer Service ACM: Howard Martin, Utilities 349-8232 SUBJECT Receive a report, hold a discussion, and give staff direction regarding the City's existing ordinance dealing with water and wastewater leak adjustments to customer billing; revisit underlying policy. BACKGROUND Periodically, the Customer Service Department receives requests from its customers, specifically for water leak adjustmems for toilet leaks. The number of requests for a billing adjustmem is growing. Although the great majority of these requests are denied without any adjustmem to the bill being made, customers are more frequemly challenging the city's ordinance. They question its clarity and applicability as the ordinance relates to hidden water leaks and toilet leaks. OPTIONS 1. Recommend amending the existing ordinance to resolve any uncertainty in its application 2. Repeal of the emire §26-128 of the DeNon Code of Ordinances 3. Take no action 4. Provide Staff with other direction RECOMMENDATION Staff recommends the City Council amend the provisions of §26-128, as it pertains to losses resulting from hidden water leaks, as comained in the attached draft of ordinance [Exhibit 3]. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 11, 2004 the Public Utilities Board voted to recommend amending §26-128 [per the attached Exhibit 3] by a vote of 7-0. ATTACHMENTS 1. Memorandum regarding proposed changes. 2. Proposed draft of ordinance recommended by the Public Utility Board providing for adjustmems to bills for losses from hidden water leaks [§26-128]. 3. Examples of represemative treatmem of customer water-leak billing adjustmems (if any) by six (6) other Texas cities. 4. PUB Minutes. Respectfully submitted: Charles C. Atkinson Customer Service Manager 215 E. McKINNEY DENTON, TX 76201 · (940) 349-8505 · FAX (940) 349-8120 UTILITY ADMINISTRATION Memorandum To: Honorable Mayor and Members of the City Council From: Through: Susan Croft, Utilities Process/Quality Control Auditor Howard Martin, Assistant City Manager- Utilities ~ Date: October 19, 2004 Subject: Proposed changes to Ordinance §26-128, Adjustment in bills for losses from hidden water leaks or unknown causes, Customer Service administers the processing of water leak adjustments through qualifications as set forth in Ordinance §26-128. Procedures have been to deny claims for toilet leaks as they are not considered hidden, but rather a customer maintenance issue. The ordinance defines "hidden water leaks", but the definition is not clear to the general public. As staff revisited the ordinance to improve the clarity, we also wanted to revisit the policy of providing adjustments for leaks. Information was gathered from other Texas cities for policy comparison. Many do not allow for an adjustment. Others, similar to Denton, qualify the allowance for adjustment. The Public Utility Board upheld the allowance for adjustment, and recommended additional changes to improve the clarity of the Ordinance. The recommended changes are encompassed in Exhibit 2. summary of those changes: 1. 2. Following is a brief The adjustment allowed for "unknown causes" was removed. Hidden water leak was clarified and specifically disqualifies water leaks from fixtures, appliances and equipment including washing machines, pools, sprinkler systems, toilets and water heaters Includes a 4th adjustment qualifier that disallows an adjustment to the same service location for claim that relates to a prior adjustment. The procedure for administering the adjustment was changed to reflect the current procedure to credit the customer's account based on the recalculation of the excess usage at a reduced rate. "Dedicated to Quality Service" www. cityofdenton.corn EXHIBIT 1 CITY OF DENTON, TEXAS BILLING ADJUSTMENT FOR WATER LOSS (Last Revised in Ordinance No. 2001-200, signed May 15, 2001 and effective as of October 1, 2001) (As Recommended by Denton Public Utilities Board) Sec. 26-128. Adjustments in bills for losses from hidden water leaks or up&nown (a) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning_. Excess usage means the difference in the greatest normal usage of water at a service location and the actual amount of water metered and billed in the billing month for which the adjustment is requested at the service location. Greatest normal usage means that amount of water metered at the customer's service location in the billing month of greatest consumption during the previous twelve (12) consecutive billing months or, if there is less than twelve (12) prior billing months, the greatest consumption during any prior billing month, prorated to the number of days in the billing month for which the adjustment is requested. Hidden water leak means any leak of a water pipe~ or water~ line or other water conveyance equipment caused by deterioration, corrosion, natural forces or other similar cause which is not immediately and reasonably detectable from the surface of the ground. The term "hidden water leak" does not include any leak to a customer's fixtures, ~r appliances, or equipment. Included in the term "fixtures, appliances, or equipment" are leaks related to the following, ~[hout !~[g[~pg~ g sprinkler system, or washing machine, or water heater, or lavato~ or [c)~!~ Substantial increase in water usage means an increase in the amount of water metered and billed at the customer's service location for the billing month for which the adjustment is requested which is in excess of fifty (50) percent of the greatest normal usage for that service location. (b) Request for adjustment. Any customer who is billed for a substantial increase in water usage during any one (1) billing month due to a hidden water leak o~ up&nown cause may request and receive an adjustment in the amount billed for water and sewer usage for that month in accordance with the provisions of this section. (c) l/Vritten request. Any customer requesting an adjustment pursuant to this section shall make the request in writing to the customer service department on forms provided for that purpose. A request for an adjustment based upon a hidden water leak shall state the location and cause of the leak, the date it was first discovered and the date EXHIBIT 2 1 of~ and the person making the repair, with attached copies of itemized, po~O repair bills. ~;~,,~-~ '~ ~j ~o~.~~m"o'~' is ..... o~e~.h' All requests shall be submitted no later than wit~in thi~ (30) days of the due date of the monthly bill for which an adjustment is sought. (d) Adjustment a/lowed A request for an adjustment in a monthly bill for water and sewer usage shall be granted if it meets all of the following conditions: (1) A request, with ;;Ti!! all required information, is filed within the required time, and (2) The requested adjustment is for a monthly billing in which there was a substantial increase in water usage resulting from a hidden water leak ar up&ne, wn cause, and (3) There has not been an adjustment made in the monthly billing for water and sewer usage at the same service location within the prior thirteen (13) months under the provisions of this section; and (4) Previous adjustments were not given at the same service location for leaks of the same nature as leaks which are the subject of a claim under this section. (e) Amount of adjustment. If an adjustment is granted under this section, the customer's account shall be credited~,,,j~m"o'~n,,o~,~,, by billing the customer for the excess usage of water and sewer at the service location for the month in which the adjustment is granted at a reduced rate established by the city council and which rate is on file in the office of the city secretary. CITY OF LUBBOCK, TEXAS (Ordinance. No. 444 §8, 6-27-29: Code 1959 §34-28) Sec. 28-30. Responsibility for leakage by owners, etc., of property. All property owners, their agents and tenants shall be held responsible as consumers for loss of water, due to leakage in pipe or plumbing inside the discharge side of the meter or on the property, and if this water is not paid for according to the rates then in effect, when it becomes due, the water shall be cut off and not turned on again until all claims are paid or adjusted to the satisfaction of the water department. In the event of any change in tenant or consumers, in rented property, and there exists, at the time, arrearages for past leakage, the landlord and property owner shall be held to account for payment for this leakage before service will be extended and water furnished to the second tenant. EXHIBIT 3 3 CITY OF IRVING, TEXAS (Ordinance No. 4211 §1, 9-22-83) Sec. 52-10. Adjustment of account. The City of Irving shall hold the consumer liable for all water registered on said consumer's meter and shall not make any adjustment onto consumer's account for leaks or other reasons, which would alter the registered gallonage on said meter. However, when leak is a concealed leak, there may be one (1) adjustment made in favor of customer per year on the following basis. Customer must present proof that the leak was repaired and the bill will be then computed as follows: Three-month average monthly bill immediately preceding the leak plus actual cost of water purchased from City of Dallas by city shall be charged to customer. CITY OF GRAPEVINE, TEXAS (Ordinance No. 76-31 §1 (7-2-9), 11-16-76) Sec. 25-34 Loss of water. All customers shall be responsible for loss of water due to leakage in pipes or plumbing inside the discharge side of the meter, and if this water is not paid for according to the rates provided herein when payment therefore becomes due, the water service shall be discontinued by the water department and not turned on again until all claims are paid. CITY OF LEWISVILLE, TEXAS There is no ordinance respecting the subject of water leak billing adjustments. The language below is quoted from the Lewisville Customer Assistance Website: Water and sewer wastage from "hidden" leaks will be allowed only one time in any six- month period. Written request for adjustment and repair invoice copies are required within 60 days of billing. "Hidden" water leaks shall mean any leak of a water pipe, line or other conveyance equipment caused by deterioration, corrosion, damage, natural forces, or other similar cause, which is not immediately and reasonably detectable. CITY OF DALLAS, TEXAS (§49-9(e) of the City of Dallas Code of Ordinances (e) Water leakage. When a customer experiences a substantial increase in water or wastewater usage from a hidden water leak, the department will adjust the amount and bill the customer in accordance with the rates prescribed in Section 49-18.1(g) The department will adjust a bill only if a customer presents a plumber's statement, or the customer's written statement, which indicates the water leak was not reasonably detectable from the surface, the leak has been repaired, and the type of repairs made. The director may request additional information before determining if a water leak was reasonably detectable based upon facts presented to the director. A customer may receive only one adjustment during a 12 month period, unless the director determines that extenuating circumstances justify allowing additional adjustments. §49-18.1(g) of the City of Dallas Code of Ordinances (g) Adjusted rates for hidden water leaks. When a customer experiences a substantial increase in water or wastewater usage from a hidden water leak and the customer meets the requirements of Section 49-9(e), the director will adjust the account and bill the customer: (1) an estimated amount of normal water usage for the period at the regular rate; (2) the excess water usage caused by the hidden leak at the following applicable rate: Type of usage rate per 1,000 gallons (A) Residential $1.08 (B) General service $1.08 (C) Optional general service $1.00 TOWN OF FLOWER MOUND, TEXAS There is no ordinance respecting the subject of water leak billing adjustments. The language below is quoted from the Flower Mound Utility Billing Website: How do I test for a water leak on my side of the meter? One of the major causes of high water consumption resulting in a high water bill is due to a plumping leak, toilet leak, or irrigation system leak or malfunction. You water meter may be your most useful tool in identifying water leaks on your property. If all sources of water are turned off in the house (washing machine, dish washer, etc.) a leak can be determined by reading your water meter. [Three paragraphs then explain the leak indicator on the particular type of water meter that the city has (there are two) and how it is read. The paragraphs suggest not using any water on the premises for at least 6 to 8 hours. Then it suggests that the customer re-read the meter to see if the dials or the numbers have moved. If movement has occurred, then it appears that the customer has a water leak] [The site also suggests that if a customer wants to check a toilet for leaks, that a dye test be performed. The steps necessary to conduct that test are detailed.] Other possible reasons for high water consumption: · Leak under concrete floor slab · Irrigation system timer problem · Hot water tank leak · Automatic pool fill problem · Vandalism · Unauthorized use of outside faucet · Washing machine cycle malfunction · Leak in plumbing from meter to house · Toilet flapper valve stuck open · Damaged irrigation sprinkler heads What to do if I have a leak? [Explains how to turn off the water until repairs are made; or the number for a service technician] If the leak causes your bill to go up higher than normal, contact the Utility Billing Division to see if an adjustment is available. 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 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES October 11, 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, October 11, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of DeNon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Dick Smith, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities The Public Utilities Board convened its Open Session at 9:00 a.m. The Chair, Charldean Newell, stated to the Board that there were three Closed Meeting agenda items that were set forth in the Closed Meeting agenda and requested a motion to consider all agenda items under §551.086 §551.071 of the Texas Governmem Code - Deliberations Regarding Certain Public Power Utilities Competitive Matters and §551.071 of the Texas Government Code - Consultation With Attorney. A motion was then made and seconded respecting the consideration of three items by the Board. The Board then voted 6-0 (Baines late) to move imo Closed Session to consider both items, and thereafter convened its Closed Session at 9:01 a.m. mo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS ---UNDER TEX. GOV'T. CODE §551.086. 1. Receive information from one of the City's Texas Municipal Power Agency ("TMPA") Board Members and/or from City Staff pertaining to certain competitive electric matters regarding present and future maintenance issues, financial issues, operational issues, reliability issues, possible litigation involving the agency, any pending legal matters, together with any related strategies or issues concerning the City's imerest in, and its business relationship with TMPA; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. 2. Receive competitive electric information, including financial information from Staff pertaining to DeNon Municipal Electric ("DME") electric service rate issues and strategies, including without limitation, the first quarter Energy Cost Adjustmem ("ECA") rate and other related matters; and discuss, deliberate, consider, determine policy, and provide Staff with direction regarding such matters. Bo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS --- UNDER TEXAS GOVERNMENT CODE §551.086. CONSULTATION WITH ATTORNEYS --- UNDER TEXAS GOVERNMENT CODE §551.071. Page 1 of 3 EXHIBIT 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 1. Receive competitive public power information and documentation from Staff regarding the Second Supplement to Transition Power Agreement, proposed to be executed by the City of Denton, Texas and the Seller thereof, to reflect certain market changes that have occurred since closing of the Transition Power Agreement; the status of other public power operational matters; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. Further, discuss and consider the legal ramifications and effect regarding execution of the Second Supplement to Transition Power Agreement. Discuss other legal issues concerning and related to this matter with the City's attorneys, where to discuss these matters in public would conflict with the duty of the City's attorneys to the Public Utilities Board under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. The Closed Session was completed at 9:27 a.m. The Public Utilities Board reconvened in Open Session at 9:28 a.m. The meeting was called to order to consider the following business: CONSENT AGENDA: 7) Receive a report, hold a discussion and give staff direction regarding the City's existing ordinance dealing with water and wastewater leak adjustments to customer billing. City Manager, Mike Conduff, arrived during discussion of this item. Susan Croft, Utilities Process/Quality Control Auditor, presented this item. Periodically, the Customer Service Department receives requests from its customers, specifically for water leak adjustments for toilet leaks. The number of requests for a billing adjustment is growing. Although the great majority of these requests are denied without any adjustment to the bill being made, customers are more frequently challenging the city's ordinance. They question its clarity and applicability as the ordinance relates to hidden water leaks and toilet leaks. Howard Martin, ACM of Utilities, informed the Board that the individuals complaining to the City Council are actually expecting more flexibility in the criteria for an adjustment rather than a tightening of the language. The Board was then polled regarding their individual recommendations to the City Council. Bland agreed with the proposed changes to §26-128 of the Denton Code of Ordinances. Gallivan recommended revising the existing ordinance. Baines explained that he would not be opposed to having an additional administrative step in which a council or committee would review the ordinance. His justified his opinion by explaining that it is difficult to make this type of document understandable to the general population due to individual interpretations. He affirmed his understanding that the City does not want to pay for something that is a customer's personal mistake. Baines then informed staff that he did not agree with 50 percent of the normal highest monthly usage. He also explained his lack of enthusiasm for an ordinance so stringent that it would not provide the flexibility to consider an adjustment for less fortunate members of the community, or those who were actually due an adjustment. Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Board Member Bill Cheek recommended repealing §26-128 of the Denton Code of Ordinances. Hopkins recommended revising the language in the existing ordinance. He also suggested that the definition of Substantial Increase in l/Vater Usage be defined as an excess of 50 percent of the greatest monthly usage for that service location. Smith stated that he agreed with Cheek in theory regarding a repeal of §26-128, but recommended amending the existing ordinance to allow a one-time adjustment. He rationalized his recommendation by referring to the small number of residents challenging the clarity and applicability of the ordinance. He said that the City should not be rewarding people for their negligence. Newell reiterated Baines' statement by advising that the language be very precise to avoid misinterpretation by the public and newspapers. Newell favored revising the existing ordinance because repealing it could have negative public relations implications. Page 3 of 3 CITY OF DENTON CITY COUNCIL MINUTES September 7, 2004 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, September 7, 2004 at 4:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Montgomery, Mulroy, and Thomson. ABSENT: Council Member Redmon 1. The Council received a report from the Human Services Advisory Committee, held a discussion, and gave staff direction regarding the 2004-2005 Human Services Budget. James McDade, Chair-Human Services Advisory Committee, stated that several of the agencies receiving funds would have to cut either services or personnel in order to accommodate the change in funding recommendations requested from the Council. DeNon was growing and the need for services was also growing. Mayor Brock stated that Denton did not have as large of a tax base as, for example, the City of Plano, but still DeNon provided more general fund dollars for social services. Council Member Redmon arrived at the meeting. Council discussion included: · Recommendations for reductions in funding had come from the Advisory Committee rather than across the board reductions - the rational was to look at each agency's role in the city and at the function performed. · Were the needy coming to DeNon because the city provided more than other cities? · Preventative care of the community was a must. · Amoum of funding for social services would not be a fixed value but would increase as average income increased. · Determine how many recipients had lived in Denton more than 18 months. · Was there an overlap of agencies and a need to consolidate services? · This was not an easy decision by Council to have to ask for these reductions. · Look at the County to help in future years, as many of the financial burdens were countywide. Carol Bounds, Co-Chair-Human Services Advisory Committee, stated that the philosophy of Denton was to take care of others. The city had lots of different people with lots of different needs that fit into the city. 2. Council received a report, held a discussion and provided staff direction regarding the Denton Airport Council Outcome Statement. City Manager Conduff stated that this item was requested by Council to review the outcome statements associated with the Airport. Mark Nelson, Director of Airport and Transit Operations, reviewed the developmem of the Airport's Outcome Statement. City of DeNon City Council Minutes September 7, 2004 Page 2 Council discussion included: · Value of businesses at the airport. · Applicability of the "mission statemem". · Hold ajoim meeting with Airport Advisory Board. Rick Woolfolk, Chair-Airport Advisory Board, felt that the Airport would be growing more and more each year. There may be a need to look to development to the west side of the airport. 3. The Council received a report, held a discussion and gave staff direction regarding enhancemems to the City of Denton Utility Bill. Charles Atkinson, Customer Services Manager, presented the recent modifications made to the utility bill. Account numbers were changed to eliminate the "0" as the fist digit in the number; the due date and amount were now in bold print; usage amounts were include for water and electricity; and the customer number was added to the bottom of the statement. Council discussion included: · A prior problem with lack of coordination among multiple properties had been corrected. · Possible changes to cycle dates for certain customers, such as those on a fixed income receiving a bill due before social security check was received - staff was cominuing to look at that due to the large amount of extra work to include in the billing cycle. · Paymem plan and average billing was available for customers. · Break out charges for recycling and include on the bill. · Explanation on why the post office box was in Fort Worth. · Consider adding 5 days for the invoice to be late before a penalty was charged as customers were often out of town for at least that long. 4. Staff responded to requests for clarification of consent agenda items listed on the consent agenda the meeting of September 7, 2004. Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Received legal advice from the City Attorney regarding the award of Special Commissioners and procedural options in condemnation proceedings styled The City of Denton, Texas v. Ed Wolski, et al., Cause No. ED-2003-01178 pending in the Probate Court of Denton County, Texas. City of DeNon City Council Minutes September 7, 2004 Page 3 Discussed and considered legal issues concerning University of North Texas's use of public right-of-way to provide multichannel video services to University of North Texas studems where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. o Discussed and considered legal issues concerning the City of DeMon's municipal drainage operation as it has and is being operated as a public utility as a drainage function of the Wastewater Utility System, under the Municipal Drainage Utility Systems Act, in accordance with Ordinance No. 2001 - 428 and other applicable law, including the legal aspects of how it has functioned as a utility under the law as compared to other municipal operations where to discuss these legal issues in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Regular Meeting of the City of Demon City Council on Tuesday, September 7, 2004 at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1. The Council considered a Resolution of Appreciation for Benny Parkey. McNeill motioned, Kamp seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Mayor Brock presemed proclamations for: KNTU 88.1 FM Week Library Card Sign-Up Momh B. Recognition of staff accomplishmems City Manager Conduffpresemed staff accomplishmems to the Council. City of Demon City Council Minutes September 7, 2004 Page 4 C. Presentation of repayment of startup funds from DCTA by Charles Emery, Chairman, and John Hedrick, Executive Director, of DCTA. John Hedrick, Executive Director-DCTA, presented a check to the City of Denton to repay startup funds DCTA had received from the City. 3. CITIZENS REPORTS A. Review of procedures for addressing the City Council. Mayor Brock reviewed procedures for addressing the City Council. B. The Council received citizen reports from the following: Alan Johnson regarding the Planning and Zoning Commission and the gas well ordinance. Mr. Johnson stated that he and his neighbors wanted to express concern regarding the drilling and operation of a gas well in their neighborhood. He presemed information to the Council regarding the proposed developmem and the associated concerns of the neighbors. 2. Carolyn Phillips regarding the elderly Black and unfriendly liens. Ms. Phillips stated that she had expressed concern in the past about elderly Black residents who were renovating their homes through federal programs and associated liens that might be applied to their homes. As she had not received any response from the Council, she had returned to again state her concerns. 3. Dessie Goodson regarding responsibility. Ms. Goodson stated that she had not received correct information regarding documents she had requested. Bus shelters had not been built as indicated by staff. She felt that records were incomplete. 4. CONSENT AGENDA Mulroy motioned, Kamp seconded to approve the Consent Agenda and accompanying ordinances and resolutions. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. mo 2004-234 - An ordinance accepting competitive bids and awarding an annual contract for the purchase of front load refuse containers; providing for the expenditure of funds therefor; and providing an effective date (Bid 3196 - Annual Price Agreement for Front Load Refuse Containers awarded to Roll-Offs USA in the estimated amoum of $213,065). City of DeNon City Council Minutes September 7, 2004 Page 5 Bo 2004-235 - An ordinance awarding a coNract for the purchase of materials, supplies, or services necessary for the purchase and maiNenance of GE JMUX SONET Multiplexer equipment for Denton Municipal Electric as approved by the State of Texas General Services Commission Department of Information Resources (DIR); providing for the expenditure of funds therefor; and providing an effective date (File 3198 - Purchase of GE JMUX SONET Multiplexer awarded to GE Multilin in the amouN of $432,578.76). Co 2004-236 - An ordinance accepting competitive bids and awarding a public works contract for the construction of the State School 12 Inch Water Line project; providing for the expenditure of funds therefor; and providing an effective date (Bid 3180 - State School Road 12 Inch Water Line awarded to S.H.U.C., Inc. in the amount of $205,848). Do 2004-237 - An ordinance approving the expenditure of funds for the purchase of an Itron Mobile Collection System for Denton Municipal Electric; 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 3193 - Purchase of Itron Mobile Collection System to Itron Inc. in an amouN not to exceed $42,500). mo 2004-238 - An ordinance of the City of DeNon, Texas approving an agreemeN between the City of Denton and the Denton Record Chronicle; approving the expenditure of funds for the purchase of legal advertising services available from only one source in accordance with the provisions of the State law exempting such purchases from requiremeNs of competitive bids; and providing an effective date (File 3212 - AgreemeN with the DeNon Record Chronicle in the amouN of $7.80 per column inch for an estimated award of $33,000). Fo 2004-239 -An ordinance accepting competitive bids and awarding a contract for the rental of heavy equipment for various City departments; providing for the expenditure of funds therefor; and providing an effective date (Bid 3195 - ReNal of Heavy EquipmeN awarded to the lowest responsible bidder for each item as listed in Exhibit A). Go 2004-240 -An ordinance of the City of DeNon authorizing an agreemeN between the City of DeNon, Texas and Robson EMS Committee for legal services in connection with First Aid Responder Program as official voluNeers to the City of Denton Fire Department Emergency Medical Services; providing for the expenditure of funds therefor; and providing for an effective date. Ho 2004-241 - An ordinance of the City Council of the City of DeNon, Texas approving an agreemeN between the City of DeNon and Habitat for Humanity of Denton County, providing for the terms of said contract; authorizing the City Manager to execute the agreement and to expend funds with respect to the agreement; and providing for an effective date. City of Demon City Council Minutes September 7, 2004 Page 6 2004-242; 2004-243 - Ordinances of the City of Demon, Texas authorizing the City Manager to execute two Dark Fiber Lease Agreements by and between the City of Demon, Texas and the University of North Texas; authorizing the expenditure of funds therefor; providing for retroactive approval of the agreements; and providing an effective date. Jo 2004-244 - An ordinance authorizing the issuance, sale, and delivery of City of Demon Utility System Revenue Refunding Bonds, Series 2004, and approving and authorizing instruments and procedures relating thereto; and providing an effective date. K. Approved tax refunds for the following property taxes: Name Reason Tax Year Amount ~i~lyT ~ iat~e~ nt $ 585 5 Lo 2004-245 - An ordinance of the City of Demon, Texas approving an Imerlocal Cooperation Agreement between the City of Denton and the Denton County Transportation Authority providing LINK operations funding assistance for fiscal year 2004-2005; and providing an effective date. Mo 2004-246 An ordinance approving a Commercial Operator Airport Lease Agreement between the City of Denton and Denton Airport Hangars, LLC; and providing an effective date. No 2004-247 - An ordinance of the City of Demon, Texas, providing for the renaming of Cypress Boulevard to Russell-Newman Boulevard; and providing an effective date. Oo 2004-248 - An ordinance of the City of Demon, Texas, amending Ordinance No. 2001-095 by increasing fares for one-quarter mile taxicab service from $0.40 to $0.50 for each one-quarter mile pursuant to Chapter 27, Article VI of the Code of Ordinances of the City of Denton, Texas, titled Taxicabs, Limousines, Shuttles; providing that a schedule of fees shall be maimained on file in the office of the City Secretary; providing a savings clause; providing a severability clause; and providing an effective date. iD, 2004-249 - An ordinance of the City of Demon, Texas amending Chapter 27 relating to vehicles for hire by amending Article VI Part B Section 27-159 titled "Application for Annual Permit" by removing the requiremem of a permanem and established place of business within the City of Demon and by adding the requiremem of a local phone number; providing a severability clause; a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; and providing for an effective date. Qo 2004-250 - An ordinance of the City Council of Demon, Texas authorizing the City Manager to execute a Water Main Pro-Rata Reimbursement Agreement between the City of Denton and Mar-Properties, Ltd. for reimbursement of the City of Demon City Council Minutes September 7, 2004 Page 7 costs of building a water main, through pro-rata charges paid to the City; authorizing the transfer of funds pursuant to the agreement; and providing an effective date. Ro 2004-251 - An ordinance of the City Council of Demon, Texas authorizing the City Manager to execute a Water Main Pro-Rata Reimbursement Agreement between the City of Demon and Quail Creek North, Ltd. for reimbursemem of the costs of building a water main, through pro-rata charges paid to the City; authorizing the transfer of funds pursuant to the agreement; and providing an effective date. So 2004-252 -An ordinance of the City Council of Demon, Texas authorizing the City Manager to execute a Sewer Main Pro-Rata Reimbursement Agreement between the City of Demon and Quail Creek North, Ltd. for reimbursemem of the costs of building a sewer main, through pro-rata charges paid to the City; authorizing the transfer of funds pursuant to the agreement; and providing an effective date. To Approved the minutes of July 16, 20, 22-23, and 27, 2004 and the minutes of August 3, 5, 10, 16, 17, 18, and 24, 2004. Uo R2004-041 - A resolution appoiming members to the Board of Directors of the North Texas Higher Education Authority; and declaring an effective date. go 2004-253 - An ordinance of the City of Demon, Texas authorizing paymem of the award of Special Commissioners into the Registry of the Court in condemnation proceeding styled The City of Denton, Texas v. Ed FFolski, et al., Cause No. ED- 2003-01178 pending in the Probate Court of Denton County, Texas; and declaring an effective date. Approved an exception to the Noise Ordinance for the purpose of a music festival, the 7a~ Annual Blues Festival, sponsored by the Denton Black Chamber of Commerce. The event will take place at the North Texas Fairgrounds on Friday, September 17a~ from 4:30 until 11:00 p.m. and Saturday, September 18, 2004, from 4:00 p.m. to 12:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival. 5. PUBLIC HEARINGS A. The Council held a public hearing on a proposal to adopt a tax rate of .59815 per $100 valuation, which will exceed the lower of the rollback rate or 103 percem of the effective tax rate. Mayor Brock opened the public hearing. The following individuals spoke during the public hearing: Kenneth Stout, 4608 Mills Road, Denton, 76208 - opposed to tax increase Patrice Capan, Family Health Care - opposed to decrease in social services funding City of Demon City Council Minutes September 7, 2004 Page 8 Mayor Brock opened the public hearing on Item 5B regarding the 2004-05 proposed budget so that speakers could address both items. Martha Harrell, 10504 Murrays Johnson Street, Denton, 76207 - opposed to tax rate Dessie Goodson, 1511 N. Elm, Denton, 76201 - opposed to tax rate and reduction of social services Judith Royal, Denton Christian Preschool - opposed to reduction of social services Carolyn Berry, City-County Day School - opposed to reduction of social services Patricia Moore, RSVP - opposed to reduction of social services Darhyl Ramsey, Owsley Community School - opposed to reduction of social services Ron Aldridge, AIDS Services of North Texas - opposed to reduction of social services Glenn Queener, Salvation Army - opposed to reduction of social services Betty Tamboulian, Human Services Advisory Committee, opposed to reduction of social services; also read a letter from Linnie McAdams opposing tax increase and decrease in social services Joyce Poole, 3021 N. Bonnie Brae, Denton, 76207 - opposed to tax increase Sherri Gideon, CASA - opposed to decrease in social services The Mayor closed the public hearing. Commem cards were received from: Ken and Sondra Ferstl, 1505 Victoria, Denton, 76201 - support tax increase Judy Deek, 621 Magnolia, Demon, 76201 - support tax increase but not decrease in social services Bill Giese, 1602 Highland Park Road, Denton, 76205 - support tax increase but not decrease in social services Roderick Wells, 2219 Bolivar, Denton, 76201 - opposed to tax increase Don Lewis, 301 Coronado Drive #1028, Demon, 76209 - opposed to decrease in social services John Johnson, 1517 Linden, Denton, 76201 - opposed to tax increase April Ballou, 2519 Scripture, Demon, 76201 - opposed to decrease in social services Pat Gobble, 3901 Gram Parkway, Demon, 76208 - opposed to decrease in social services Amy Pape, 1304 Bernard, Demon, 76201 - opposed to decrease in social services Dan Leal, 604 Chateau Court, Denton, 76209 - opposed to decrease in social services B. The Council held a public hearing and received citizen input on the 2004-05 proposed budget. This item was considered with Item 5A. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered approval of a resolution of the City Council of the City of Denton, Texas announcing that it will vote on a tax rate at its regularly scheduled meeting of September 21, 2004; providing for publication of notice of such vote on the tax rate; and providing an effective date. City of Demon City Council Minutes September 7, 2004 Page 9 The following resolution was considered: NO. R2004-042 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS ANNOUNCING THAT IT WILL VOTE ON A TAX RATE AT ITS REGULARLY SCHEDULED MEETING OF SEPTEMBER 21, 2004; PROVIDING FOR PUBLICATION OF NOTICE OF SUCH VOTE ON THE TAX RATE; AND PROVIDING AN EFFECTIVE DATE. Mulroy motioned, Kamp seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to accept a grant award from the Texas Department of Housing and Community Affairs for an Emergency Shelter Gram Program and take all other actions necessary to administer the grant under the Emergency Shelter Grant Program; and providing for an effective date. Barbara Ross, Community Development Administrator, stated that this agreement would provide homeless prevention services to be administered through HOPE Inc. The following ordinance was considered: NO. 2004-254 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO ACCEPT A GRANT AWARD FROM THE TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS FOR AN EMERGENCY SHELTER GRANT PROGRAM AND TAKE ALL OTHER ACTIONS NECESSARY TO ADMINISTER THE GRANT UNDER THE EMERGENCY SHELTER GRANT PROGRAM; AND PROVIDING FOR AN EFFECTIVE DATE. Mulroy motioned, Thomson seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council considered adoption of an ordinance establishing rules and procedures for the City of Demon Council Ethics Committee for the purpose of advising the City Council of the City of Demon on the Ethics Policy for Elected and Appoimed Officials - City of Denton, Texas; and providing an effective date. Dottie Palumbo, Senior Assistam City Attorney, stated that the ordinance would set the ground rules for the council committee. This would be a standing committee for the council with guidelines to follow. A suggestion was made to change the word "chairman" to "chair". City of DeNon City Council Minutes September 7, 2004 Page 10 The following ordinance was considered: NO. 2004-255 AN ORDINANCE ESTABLISHING RULES AND PROCEDURES FOR THE CITY OF DENTON COUNCIL ETHICS COMMITTEE FOR THE PURPOSE OF ADVISING THE CITY COUNCIL OF THE CITY OF DENTON ON THE ETHICS POLICY FOR ELECTED AND APPOINTED OFFICIALS - CITY OF DENTON, TEXAS; AND PROVIDING AN EFFECTIVE DATE. Kamp motioned, Montgomery seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. The Council considered nominations/appoimmems to the City's Boards and Commissions and consider appointing a committee to recommend nominations to the Economic Development Partnership Board. Mayor Pro Tem McNeill nominated Council Members Kamp and Momgomery and Dale Kimble to the Economic Development Partnership Board nominating committee. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Council Member Redmon nominated Daniel Farmer to the Animal Shelter Board. The nomination would be confirmed at the next Council meeting. E. The Council considered approval of a resolution requesting that the Texas Municipal League support legislation for funding for the creation and funding for regional rail systems, including an optional sales tax increase; and providing an effective date. This item was withdrawn from consideration. F. The Council considered approval of a resolution asking that the Texas Municipal League support legislation that automatically removes the ad valorem tax exemption or reduces the ad valorem tax exemption to the ratio of student occupation for Higher Education Authorities; and providing an effective date. Dottie Palumbo, Senior Assistam City Attorney, indicated that this resolution would provide accoumability for studems to reside in tax exempt facilities sponsored by Higher Education Authorities. The following resolution was considered: NO. R2004-043 A RESOLUTION ASKING THAT THE TEXAS MUNICIPAL LEAGUE SUPPORT LEGISLATION THAT AUTOMATICALLY REMOVES THE AD VALOREM TAX EXEMPTION OR REDUCES THE AD VALOREM TAX EXEMPTION TO THE City of Demon City Council Minutes September 7, 2004 Page 11 RATIO OF STUDENT OCCUPATION FOR HIGHER EDUCATION AUTHORITIES; AND PROVIDING AN EFFECTIVE DATE. Mulroy motioned, Kamp seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. G. The Council considered approval of a resolution requesting that the Texas Municipal League support legislation that provides for a method of road assessment damages or increased fees paid by heavy trucks in using city, county or state roads, and providing an effective date. The following resolution was considered: NO. R2004-044 A RESOLUTION REQUESTING THAT THE TEXAS MUNICIPAL LEAGUE SUPPORT LEGISLATION THAT PROVIDES FOR A METHOD OF ROAD ASSESSMENT DAMAGES OR INCREASED FEES PAID BY HEAVY TRUCKS IN USING CITY, COUNTY OR STATE ROADS, AND PROVIDING AN EFFECTIVE DATE. Kamp motioned, Mulroy seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. H. The Council considered approval of a resolution requesting that the Texas Municipal League support legislation for funding options, including funding for maimenance and operation, of city owned or city/private partnerships for convention centers; and providing an effective date. Dottie Palumbo, Senior Assistant City Attorney, stated that this resolution would encourage- changes in the hotel/motel occupancy tax for use of an additional 2 cents for convention centers for smaller cities. The following resolution was considered: NO. R2004-045 A RESOLUTION REQUESTING THAT THE TEXAS MUNICIPAL LEAGUE SUPPORT LEGISLATION FOR FUNDING OPTIONS, INCLUDING FUNDING FOR MAINTENANCE AND OPERATION, OF CITY OWNED OR CITY/PRIVATE PARTNERSHIPS FOR CONVENTION CENTERS; AND PROVIDING AN EFFECTIVE DATE. Kamp motioned, Thomson seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. City of DeNon City Council Minutes September 7, 2004 Page 12 I. The Council considered approval of a resolution of the City of DeNon City Council requesting the Texas Municipal League to support legislation that repeals Section 403.003 of the Texas Local Government Code, the drainage exemption for state entities; and providing for an effective date. The following resolution was considered: NO. R2004-046 A RESOLUTION OF THE CITY OF DENTON CITY COUNCIL REQUESTING THE TEXAS MUNICIPAL LEAGUE TO SUPPORT LEGISLATION THAT REPEALS SECTION 403.003 OF THE TEXAS LOCAL GOVERNMENT CODE, THE DRAINAGE EXEMPTION FOR STATE ENTITLES; AND PROVIDING FOR AN EFFECTIVE DATE. McNeill motioned, Thomson seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. J. New Business The following item of New Business was suggested by Council for a future agenda: 1 Council Member Mulroy requested a matrix to simplify concepts for code enforcemem to be discussed during the Code Enforcemem luncheon discussion. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda The City Manager did not have any items for Council. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no cominuation of the Closed Meeting. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. McNeill motioned, Kamp seconded to authorize the City Attorney to take the action discussed in Closed Session. On roll vote, Kamp "aye", McNeill "aye", Momgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. With no further business, the meeting was adjourned at 9:16 p.m. City of Demon City Council Minutes September 7, 2004 Page 13 JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS EULINE BROCK MAYOR CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 14, 2004 After determining that a quorum was present, the City Council convened in a Planning Work Session on Tuesday, September 14, 2004 at 4:00 p.m. in the City Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Montgomery, Mulroy, Redmon and Thomson. ABSENT: Council Member Redmon 1. The Council received a report, held a discussion, and gave staff direction regarding the 2004-2005 Budget and the 2004-2009 Capital Improvement Program. Council discussion on the budget included: · Whether employee salary increases would be across the board or merit increases - all increases would be staggered merit increases except for Civil Service-Civil Service would receive a 3.11% increase beginning January 1, 2005. · Additional information requested regarding the restoration of Library and recreation center hours - amount in final proposal did not match original requested amount - restored amount was for employees only to man the restored hours - no equipment or materials included. · Follow-up details of the hard materials eliminated from the budget. Council Member Redmon arrived at the meeting. · Whether the 5-cent tax increase would cover all the proposed needs. · If a void still existed, what area would it include street infrastructure/vehicle maintenance/salaries. · The reductions in social services would remain with the excess to be used to fund a police officer. · Social service agencies should look to other resources for funding - challenge other communities to provide funding for the social service agencies. Denton shouldn't do it all - determine the county role in funding for social services throughout the county. 2. The Council received outcome statements and held a discussion regarding Environment. City Manager Conduff indicated that there were no new outcome statements. 3. The Council received a report, held a discussion and gave staff direction regarding Pavement Management Recommendations. Paul Foxworthy, ERS Consultant, reviewed an engineering analysis of automated roadway evaluations. The evaluation used semi-automated video distress and ground penetrating radar that simultaneously recorded the surface condition, rutting and roughness of the pavement surface. The results of the survey indicated several areas that needed to be addressed to begin to improve the overall street condition in the community. The two most obvious needs were implementation of quality control procedures to ensure streets were built to standard and increased overall funding. A multi-year pavement repair plan needed to be developed. He reviewed family class performance models for various types of street patterns. City of Demon City Council Minutes September 14, 2004 Page 2 Jim Coulter, Director of Water/Wastewater, stated that Denton's streets had a $332 million asset value for the 1300 lane miles. If the streets were not properly maintained, it would cost $13.25 million per year for reconstruction. He reviewed the street design criteria for surrounding municipalities. Long-term maintenance issues included preventative maintenance, quality comrol with inspections, geotechnical verification and funding levels. He presemed slides of problem streets within Denton. Continued maintenance, quality control and funding were the issues to consider. Long term funding strategies included general obligation bonds, funding from the Denton County Transportation Authority and a possible street maintenance fee that would only be used for reconstruction. Street Impact fees applied to street construction in new developments. It was recommended to continue investigation of funding alternatives such as a street maintenance fee; street impact fees; and resource allocation. Council discussion included: · How to "sell" the issue to the citizens. · The tax would be a regressive tax. · Way to get dollars from another area rather than taxes. · Ad valorem tax did not allow the capture of dollars needed to pay for maimenance. · Need to have mass transit in Denton to help with street maintenance. · Need to define model on how to fund. · Need to develop a plan on how to solve the problem. Consensus of the Council was to continue investigation of funding alternatives to solve the problem. 4. Suggestions for Agenda Committee on future agenda items and/or placement of items for upcoming agendas. No suggestions were made at this meeting. With no further business, the meeting was adjourned at 7:00 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 20, 2004 After determining that a quorum was present, the City Council convened in a Special Called Work Session on Monday, September 20, 2004 at 12:30 p.m. in the Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Mulroy, and Thomson. ABSENT: Council Members Montgomery and Redmon 1. The Council received a report, held a discussion and gave staff direction regarding the initiation of voluntary residential cart refuse service. Vance Kemler, Director of Solid Waste, presented information on a voluntary residential cart refuse service. There were 19,800 homes on twice per week bag service and 3,050 homes on once a week cart service. Staff was proposing an option to extend once per week cart refuse service to current bag collection customers on a voluntary basis to the first 3,000 customers requesting the service change. New subdivisions would continue to be placed on cart service. The rate for cart service would be less than the bag service. Cart service would be only once a week versus twice a week service for bags. Council discussion included: Type of truck that would pick up for bag and cart service in mixed neighborhoods. Clear bags would be issued for yard waste, household bags would continue to be black. Cart service customers would be getting yard waste bags. There was a need for good public education on how to properly use the cart service. New subdivisions would have carts but not infill construction - cart service in that situation would be voluntary. Currently extra bags outside the cart were not picked up - in the future, extra bags would be picked up for an additional charge. Consensus of Council was to proceed with the proposal. 2. The Council received a report, held a discussion and gave staff direction regarding the placement and enclosure options for existing commercial dumpsters located forward of the front building line. Vance Kemler, Director of Solid Waste, stated that in January staff presented a White Paper on aesthetics. Along with that White Paper, the Denton Development Plan and the Development Code presented regulations for dumpsters. He presented pictures of dumpsters in compliance with the regulations. Existing property constructed before adoption of current code were not required to meet current regulations. Dumpsters in the street numbered about 30. Dumpsters in City of DeNon City Council Minutes September 20, 2004 Page 2 the right-of-way numbered about 400. Those were on the curb and right-of-way areas. Solutions for the dumpsters in the right-of-way and street were to relocate the containers; change requiremeN for collection to bag rather than dumpsters with the property owners billed for the service. Departments impacted by dumpster issue included police, code enforcement, Keep Denton Beautiful, Planning and Development and Solid Waste Delivery. Suggestions for implemeNation of changes included providing a general policy on the location and enclose requirements for existing dumpsters forward of the front building line, not covered by the current Development code, provide a target date to begin and complete implementation, and consider strategies to minimize impact on affected dumpster users or customers. The Denton DevelopmeN Code would need to be updated or revised to include coNainer screening, placement of coNainers to the rear or side of a structure, accessibility, and applicability for property expansions, remodeling rezoning or re-platting; update the site criteria manual and revise portions of the Code to meet the goal. In order to ease the burden on a customer with a dumpster in the right-of-way Council might consider alternatives with incentives to encourage coNainer relocation. A fee for coNinued use of the City's right-of-way for customers choosing to keep their dumpsters in the right-of-way might also be considered. Council discussion included: Prefab enclosures were available for dumpster enclosures. Increase interaction with customers regarding placement of containers. Develop a policy on sharing of coNainers among differeN businesses. The situation included two service issues - billing and site developmeN. A possible solution was to change service in all apartments to bag/cart service instead of dumpsters. Industrial areas and large developed area requiremeNs would be differeN from apartments. Provide a reasonable time to get dumpsters out of the right-of-way. Get with owners of larger properties and get buy-in on how to eliminate the dumpster issues. Consensus of the Council was to meet with the owners of larger properties and get a buy-in on how to eliminate the dumpster issues. The move might be from dumpsters to carts without bag service. A meeting would be scheduled in the first quarter of next year to get the process started. 3. The Council held a discussion and gave staff direction regarding City Council priorities relative to the Denton Development Code including but not limited to development standards and zoning categories. Mayor Brock indicated that the Agenda Committee had requested this item be placed on the agenda so that Council could begin developing items to discuss in the join meeting with the Planning and Zoning Commission. City of DeNon City Council Minutes September 20, 2004 Page 3 Council discussion and priorities included: One top priority was to create a higher value for residences in city. Make DeNon so desirable that people would be willing to pay a higher price for homes in order to live in DeNon. Landscaping in public places and private locations made a city more desirable. The current Development Code encouraged small lot developments with a trade off for quality. The quality standards were not high enough to make the equation balance. Look at the minimum square footage to raise quality standards such as amoum of brick on the home and required landscaping. Examine city policies such as impact fee exemptions and to re-examine the apartment to population ratio for future years. Consider all future apartments with a specific use permit until a comprehensive plan solution was found. It was not good planning to allow homes without garages or to have garage conversions thus requiring residents to park outside on the driveway, street or yard. It was important to provide incentives to bring in higher quality developments. Encourage street trees, wider widths of sidewalks, and masonry instead of siding for developmems. Consider an ordinance requiremem for multifamily developmems to have a specific use permit while the issue was re-examined. This would not be a moratorium and could be changed later if needed. Develop a matrix of what can and can't be done with building standards. Several options were needed for developers to consider in order to meet certain criteria to raise standards. Determine numbers on existing occupancy rates for apartments. With no further business, the meeting was adjourned at 2:35 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 21, 2004 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, September 21, 2004 at 4:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Montgomery, Mulroy, and Thomson. ABSENT: Council Member Redmon 1. The Council received a report, held a discussion, and gave staff direction regarding regional transportation issues. Council Member Kamp presented an overview of regional transportation issues including air quality. She indicated that she served on two different boards, the DMRC and the RTC. Brian Barth, TxDot, presented information regarding tolling issues. TxDot was working on a unified transportation program for the metropolitan mobility plan. Council Member Redmon arrived at the meeting. Barth reviewed identified needs that were funded and unfunded. He also reviewed the funding sources and strategies for the plan such as spend wiser, be more efficient, borrow to build, find partners. He stated that Highway 121 had been included in a feasibility study, which indicated that it was a good road for tolling. Joe Roy, DCTA, presented information regarding the Authority's perspective on a regional solution to transportation issues. It was recognized that DCTA represented Denton County and not just the three cities that were assisting with funding at this time. Funding continued to be an issue with the Authority and the consideration of the raising of the tax cap to an additional half- cent dedicated to mass transportation. Council discussion included reasoning for potential tolling of Highway 121 and improvements to I35 north of the Lewisville Bridge. 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for September 21, 2004. Regular Meeting of the City Council on Tuesday, September 21, 2004 at 6:30 p.m. in the Council Chambers at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Mulroy, Redmon and Thomson. ABSENT: Council Member Montgomery 1. PLEDGE OF ALLEGIANCE The Mayor and members of the City Council recited the Pledge of Allegiance to the U. S. and Texas flags. City of DeNon City Council Minutes September 21, 2004 Page 2 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1. The Council considered a Resolution of Appreciation for Brenda Ormsby. Council Member Momgomery joined the meeting. Montgomery motioned, Thomson seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Mayor Brock presented a proclamation for Fire Prevention Week. Mayor Brock presented Yard of the Month awards to: Michael Powell and Lauri Nack Gladys Figeroa and Stephanie Soto Bob and Ruby Crouch Mark, Debbie and Memphis Merki Rufus and Wilma Wells Rudi Thompson, Monica Wilson and Cody Green Water Smart Yard - UNT Master Hall Business Yard - Wildwood Inn B. Recognition of staff accomplishments City Manager Conduffpresemed staff accomplishmems to the Council. 3. CITIZENS REPORTS A. Review of procedures for addressing the City Council. Mayor Brock reviewed the procedures for addressing the City Council during the meeting. B. The Council received citizen reports from the following: 1. Harvey Sparhawk regarding water bill adjustmems and means for redress. Mr. Sparhawk was not present at the meeting. 2. Robert Donnelly regarding drainage problems. Mr. Donnelly, 3900 Quail Creek Road, DeNon, presemed information regarding problems with drainage on his property from the neighboring apartmem complex. The drainage was improperly installed during the building of the complex. The City was not responding to his request for help with the situation of the drainage with the developer of the complex. City of DeNon City Council Minutes September 21, 2004 Page 3 John Ryan regarding wind devices, City language, and uses of City services. Mr. Ryan, 2128 Emerson Lane, DeNon, stated that he and his wife were small business owners in the City. They wanted to do additional advertising to bring in new tenants for their apartment complex. He received a code enforcemem violation in the mail regarding a "wind device". He questioned the definition of a "wind device" as noted in the ordinance. He was bothered with the time frame for the ordinance. He felt the intent of the ordinance was good but the practicality of the ordinance was not. He also noted that a certificate of occupancy was required for his apartment complex, which was not true to the definition of the certificate as it was to be issued prior to anyone living there but the complex was a continued occupancy from a prior owner. 4. BUDGET CONSENT AGENDA Mayor Pro Tem McNeill pulled items S, T, and U for separate consideration. Mulroy motioned, Kamp seconded to approve the Budget Consent Agenda and accompanying ordinances with the exceptions of Item S, T, and U. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Item S was considered: McNeill motioned, Mulroy seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Item T was considered. Mulroy motioned, Kamp seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Item U was considered. Mulroy motioned, Kamp seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 2004-256 - An ordinance amending the Schedule of Water Rates comained 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 City of DeNon City Council Minutes September 21, 2004 Page 4 fees; providing for a repealer; providing for a severability clause; and providing for an effective date. Bo 2004-257 - An ordinance amending the Schedule of Wastewater Rates contained 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 equipmem 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 treatmem service for a governmemal 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 2004-258 - 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 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; City of DeNon City Council Minutes September 21, 2004 Page 5 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 2004-259 - 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 2004-260 - 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 2004-261 - 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 2004-262 - 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. Ho 2004-263 - 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. 2004-264 - An ordinance authorizing the Mayor to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce for the payment and use of hotel tax revenue; and providing an effective date. City of Demon City Council Minutes September 21, 2004 Page 6 Jo 2004-265 - 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 2004-266 - 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 2004-267 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 2004-268 - 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 2004-269 - 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 2004-270 - 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, 2004-271 - 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 2004-272 - 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 2004-273 - 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. So 2004-274 - An ordinance adopting the budget and first year of the Capital Improvemem Plan of the City of Demon, Texas for the fiscal year beginning October 1, 2004, and ending September 30, 2005; and declaring an effective date. 2004-275 - 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 Denton bonds; providing for limited exemptions of certain homesteads; providing City of DeNon City Council Minutes September 21, 2004 Page 7 for enforcemem of collections; providing for a severability clause; and providing an effective date. Uo 2004-276 - An ordinance of the City of DeNon, Texas, approving the 2004 Tax Rolls; and providing an effective date. 5. CONSENT AGENDA Kamp motioned, Mulroy seconded to approve the Consem Agenda and accompanying ordinances and resolutions. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. mo 2004-277 - 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). Bo 2004-278 - An ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Arthur Surveying Co., Inc. to provide professional surveying services in support of the City of DeNon Engineering Department; authorizing the expenditure of funds therefore and providing an effective date (PSA 3219 - in an amoum not to exceed $150,000). Co 2004-279 - 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). Do 2004-280 - 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). mo 2004-281 - 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 amoum of $45,000). Fo 2004-282 - An ordinance accepting competitive bids and awarding a comract for the purchase of an 18-foot Windrow Composting Machine for the Beneficial Reuse Department; providing for the expenditure of funds therefore; and City of Demon City Council Minutes September 21, 2004 Page 8 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 2004-283 - 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 Approved 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 corner 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) 2004-284 - 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 2004-285 - 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) Ko 2004-286 - 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. (Terminal Tower Gram) Lo 2004-287 - 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 2004-288 - 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. City of DeNon City Council Minutes September 21, 2004 Page 9 2004-289 - An ordinance of the City of DeNon authorizing an agreemem between the City of DeNon, Texas and the DeNon 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. 2004-290 - An ordinance of the City of DeNon authorizing an agreemem 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. 2004-291 - An ordinance authorizing an agreemem between the City of DeNon, Texas and the Greater Denton 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. R2004-047 - A resolution authorizing 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. 2004-292 - An ordinance of the City of DeNon naming the City Hall Foumain located in Civic Cemer Park; and declaring an effective date. 2004-293 - An ordinance of the City of DeNon naming the Skate Park located adjacent to the Water Works Park; and declaring an effective date. 2004-294 - 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. Considered appoimmems to the following boards and commissions: 1. Animal Shelter Advisory Committee 6. PUBLIC HEARINGS A. The Council held a public hearing and considered 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 recommended approval (6-0). (SI03-0012, Tree Preservation Ordinance) Larry Reichhart, Assistant Director of Development Services, stated that at the last work session five items were discussed regarding revisions in the ordinance. The tree mitigation table was revised also. City of DeNon City Council Minutes September 21, 2004 Page 10 Mayor Pro Tem McNeill stated that the Council had charged the Tree Committee with a number of items to consider regarding the proposal. The Committee had not had a chance to meet and review the proposed changes to the ordinance. He suggested opening the public hearing to receive comments, not close the public hearing and postpone it to a date certain in order for the Committee to review the changes. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Bob Killam, 910 Edgewood Place, DeNon, 76209 - in favor of an ordinance with revisions - form a standing environmental conservation board to monitor environmental issues Kenneth Yazel, 812 West Hickory, Denton, 76201 - concern regarding designation of trees on site plans and plats - trees were temporary and should not be included with the final plat. Bernadette Donahue, 602 West Hickory, Denton, 76201 - not strong enough language for compliance with the ordinance-moratorium on cutting trees until ordinance in place. Peggy LaPoim, 1900 Highland Park Circle, DeNon, 76205 - in favor of the ordinance but it still needed revisions. Chris Briggs, 1308 Bryn Mawr, Denton, 76201 - in favor of ordinance with three points to clarify; unauthorized clearing of trees; verification of a letter regarding the historical nature of trees; and a survey of the tree stand. Cymhia Maguire, 2412 Shenandoah Trail, DeNon, 76210 - favor of an ordinance but still needed to be revised - weak in enforcemem Ed Soph, 1620 Victoria, DeNon, 76209 - establish a citizen tree board and hire a city arborist. Read comments from Owen Yost indicating concerns with the proposed ordinance. Mike Drury, 2115 Highland Park Road, DeNon, 76205 - questions regarding nursery trees; diseased trees qualified by certified individual. Commem cards were received from: Michelle Daniels, 324 Fulton, DeNon, 76201 - opposed to ordinance. Grace Chalon, 1401 Broadway, DeNon, 76201 - opposed to ordinance Heidi Klein, 621 Hillcrest, 76201 - opposed to ordinance McNeill motioned, Montgomery seconded to continue the public hearing to the October 19th city council meeting. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council held a public hearing and considered adoption of an ordinance 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 was located on the south side of Imerstate 35 City of Demon City Council Minutes September 21, 2004 Page 11 East, approximately 1,000 feet south of Wind River Lane. The Planning and Zoning Commission recommended approval with the condition that the overlay permit only professional office uses (7-0). (Z04-0033, Unicorn Lake) Larry Reichhart, Assistant Director of Planning and Development Services, reviewed the proposed changes in the zoning of the property. The Mayor opened the public hearing. The following individuals spoke during the public hearing. Mark Donaldson, Carter and Burgess, in support of the proposal. The Mayor closed the public hearing. The following ordinance was considered: NO. 2004-295 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 (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 BEING CHANGED FROM NEIGHBORHOOD RESiDENTiAL 2 (NR-2) AND NEIGHBORHOOD RESiDENTiAL 3 (NR-3) ZONING DISTRICTS TO A NEIGHBORHOOD RESiDENTiAL 2 (NR-2) ZONING DISTRICT; PROVIDING FOR A PENALTY iN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABiLiTY CLAUSE AND AN EFFECTIVE DATE. (Z04-0033). Redmon motioned, Mulroy seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council held a public hearing and considered 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 was located approximately 300 feet west of Bonnie Brae, on the south side of Oak Street. The Planning and City of Demon City Council Minutes September 21, 2004 Page 12 Zoning Commission recommended approval (6-0). (Z04-0030, 2401 West Oak Street, Chris Fuller). Larry Reichhart, Assistant Director for Planning and Development Services, presented the details of the proposal. The imended use of the property was for medical offices. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2004-296 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; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABiLiTY CLAUSE AND AN EFFECTIVE DATE. (Z04-0030) McNeill motioned, Kamp seconded to adopt the ordinance. "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", "aye". Motion carried unanimously. On roll vote, Kamp "aye", McNeill Thomson "aye" and Mayor Brock D. The Council held a public hearing and considered adoption of an ordinance granting 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. Bob Tickner, Superintendent of Parks Planning, presented the details of the proposed use of the park property. A public hearing was required due to the use of park property for non-park uses. The DiSD was requesting to use a subsurface portion of the property for its fiber optics cable to link up several schools in the area. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: City of DeNon City Council Minutes September 21, 2004 Page 13 NO. 2004-297 AN ORDINANCE GRANTING 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. Mulroy motioned, Kamp seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 7. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered approval ora resolution of the City Council of the City of Denton, 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. Kenneth Banks, Watershed Resource Manager, presented the details of the proposal. He detailed the importance of the project to the city and the watershed management. The resolution would extend the program until 2010 to continue with the research work. The following resolution was considered: NO. R2004-048 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, 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 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. Mulroy motioned, Montgomery seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered approval ora 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 Environmemal Quality requesting a public meeting on the application of Safety- Kleen Systems, Inc. for Permit Renewal and Amendment to Authorize Continued Receiving, City of DeNon City Council Minutes September 21, 2004 Page 14 Storage and Processing of Industrial and Municipal Hazardous and Non-Hazardous Wastes (TCCEQ Permit No. 50163); and providing an effective date. Kenneth Banks, Watershed Resource Manager, stated that the resolution would approve a letter from the Mayor to TCEQ for a public hearing to be held in DeNon regarding the application of Safety Kleen for a hazardous waste permit to accept a larger list of wastes at the facility. A Commem card was received from Ed Soph in favor of the resolution. The following resolution was considered: NO. R2004-049 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 RECEIVING, STORAGE AND PROCESSING OF INDUSTRIAL AND MUNiCiPAL HAZARDOUS AND NON-HAZARDOUS WASTES (TCCEQ PERMIT NO. 50163); AND PROVIDING AN EFFECTIVE DATE. Thomson motioned, McNeill seconded to approve the resolution plus contact the City's state represematives regarding the public hearing. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council considered appointing a voting delegate and an alternate voting delegate to the National League of Cities Annual Congress of Cities. Council Member Redmon nominated Mayor Brock and Mayor Pro Tem McNeill as voting and alternate voting delegates. After discussion, Redmon nominated, Mulroy seconded to appoim Mayor Pro Tem McNeill as voting delegate and Council Member Montgomery as alternate voting delegate. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. The Council considered nominations/appoimmems to the City's Economic Development Partnership Board. Council Member Kamp indicated that the Committee still had one nomination to make and requested consideration to the next meeting. E. The Council considered 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 City of Demon City Council Minutes September 21, 2004 Page 15 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. City Attorney Prouty reviewed the details of the CoServ request for a rate increase. This resolution would suspend the effective date of the rate increase and authorize the City to join with other cities to investigate the rate request. The following resolution was considered: NO. R2004-050 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. Mulroy motioned, Kamp seconded to approve the resolution. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. F. The Council considered 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. City Attorney Prouty stated that these were suggested follow-up from the Council's Planning and Work Session discussions. City of Demon City Council Minutes September 21, 2004 Page 16 A Commem card in opposition was received from Ed Soph, 1620 Victoria, Demon, 76209. The following ordinance was considered: NO. 2004-298 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. Mulroy motioned, Kamp seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. G. New Business There were no items of New Business suggested by Council. H. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda City Manager Conduff did not have any items for Council. I. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no Closed Session at this meeting. J. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action on Closed Meeting items. With no further business, the meeting was adjourned at 8:47 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: October 19,2004 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 ACM: Kathy DuBose g'>~ SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding an annual comract for the purchase of Electric Rubber insulated Termination and Separable Connector Goods and Accessories for DeNon Municipal Electric; providing for the expenditure of funds therefore; and providing an effective date (Bid 3187-Annual Comract for Electric Rubber insulated Termination and Separable Connector Goods and Accessories awarded to Hughes Supply in the estimated amoum of $152,000). BID INFORMATION This bid is for the annual comract to supply Electric Rubber Insulated Termination and Separable Connector Goods and Accessories to Denton Municipal Electric. These items are carried in the Warehouse for easy access. RECOMMENDATION We recommend award of this bid to the lowest responsible bidder, Hughes Supply, in the estimated amount of $152,000. Item 45 will not be awarded at this time. PRINCIPAL PLACE OF BUSINESS Hughes Supply Corinth, TX ESTIMATED SCHEDULE OF PROJECT This price agreemem will be in effect for a period of one year from the date of award and may be extended for additional one-year periods if agreed to by both parties with all pricing, terms and conditions remaining the same. FISCAL INFORMATION This item will be funded out of the Warehouse working capital account and charged back to the using department. Agenda Information Sheet October 19, 2004 Page 2 Attachment 1: Tabulation Sheet 1-AlS-Bid 3187 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent .{- 0 u u 'r- ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF ELECTRIC RUBBER INSULATED TERMINATION AND SEPARABLE CONNECTOR GOODS AND ACCESSORIES FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3187-ANNUAL CONTRACT FOR ELECTRIC RUBBER INSULATED TERMINATION AND SEPARABLE CONNECTOR GOODS AND ACCESSORIES AWARDED TO HUGHES SUPPLY IN THE ESTIMATED AMOUNT OF $152,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 3187 1-44, 46 Hughes Supply Exhibit A SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3187 ~' Exhibit A Bid ~ 3187 Date: 9/21/04 Annual Contract of Electric Rubber Goods & Accessories Principle Place of Business: Corinth, TX SECT]:ON A - Manufacturer: Elastimold - 3H i 287-72-395 20 Connector, 500MCM Primary Splice $3.23 $64.60 2 287-72-390 20 Conn 750MCM Splice $581.00 $11,620.00 3 287-72-820 5 Connector Splice 4/0-250 T-EL $3.00 $15.00 4 287-73-640 15 Lug 250MCM Aluminum $2.32 $34.80 5 285-95-225 20 Splice Kit URD #2-220 MIL $17.94 $358.80 6 285-95-230 20 Splice Kit URD 4/0-20 MIL $21.96 $439.20 7 285-95-050 46 Splice Kit for 500&750 MCM $219.55 $10,099.30 8 287-75-340 8 Termination Kit 250 Indoor $39.19 $313.52 9 287-75-330 5 Termination Kit 500 Indoor $57.61 $288.05 10 287-75-300 118 Termination Kit #2-220 MIL $30.27 $3,571.86 11 287-75-310 61 Termination Kit 4/0 220/175 $33.99 $2,073.39 12 287-75-350 8 Termination Kit 250 Outdoor $77.86 $622.88 13 287-75-320 45 Termination Kit 500 & 750MCM OD $86.03 $3,871.35 14 287-72-380 5 Conn. 4/0 3M 15kV SPL $3.18 $15.90 15 285-95-030 130 Adapter Sealing & Grounding $20.59 $2,676.70 16 287-72-360 5 Conn. #2 3M 15kV SPL $2.07 $10.35 17 287-72-385 8 Conn. 500MCM Secondary Splice $5.87 $46.96 18 285-95-035 275 Cap, Cold Shrink for Cable End $3.76 $1,034.00 19 287-32-000 383 Attester Elbow 200 AMP $57.89 $22,171.87 20 285-95-065 45 Adapter, Cable 750, T Elbow $8.42 $378.90 21 287-32-250 193 Elbow "T" Housing, 600 AMP $36.84 $7,110.12 22a 287-32-125 707 Elbow Loadbreak #2-220 MIL $25.26 $17,858.82 :::::::::::::::::::::::::::::: 22b Optional Elbow Loadbreak #2-220 MIL NO BID 23a 287-32-225 375 Elbow Loadbreak 4/0-220 MIL $25.26 $9,472.50 Exhibit A Bid ~ 3187 Date: 9/21/04 Annual Contract of Electric Rubber Goods & Accessories Principle Place of Business: Corinth, TX :::::::::::::::::::::::::::::: 235 Optional 0 Elbow Loadbreak 4/0-220 MTL NO BTU $000 24 287-32-050 67 Arrest. Bush. Stand 10kV $210.53 $14,105.51 25 285-10-150 120 Bushing Loadbreak Tnsert $18.42 $2,210.40 26 285-10-100 260 Bushing Tnsul. Parking $29.05 $7,553.00 27 285-10-000 38 Bushing Feed Thru $73.95 $2,810.10 28 287-32-175 20 Junction 4 PT. 200 Amp Loadbreak $105.26 $2,105.20 29 287-32-080 34 Arrest. Park. Stand 10kV $121.05 $4,115.70 30 287-72-340 5 Cone, Stress 4/0 $6.84 $34.20 31 285-95-055 18 Adapter Cable 4/0-250 T-Elbow $8.42 $151.56 32 285-10-050 9 Bushing Extender 600A 15kV $46.32 $416.88 33 285-95-080 85 Adapter, Cable 500, T Elbow $8.42 $715.70 34 287-73-650 5 Lug Connector For #2 Elbow $3.28 $16.40 35 287-73-645 5 Lug 250MCM Cu Compressed $11.58 $57.90 36 287-72-880 110 Connector 500 T-Elbow $10.53 $1,158.30 37 287-75-700 45 Junction 3 Point $90.00 $4,050.00 38 285-10-105 100 Bushing, Tnsert Cap W/Ground $16.84 $1,684.00 39 285-95-090 35 Adapter, Cable 750MCM $8.42 $294.70 40 287-32-130 18 Probe for #2 Elbow $5.80 $104.40 41 287-32-150 196 Plug, Elbow Tap 200 AMP $81.05 $15,885.80 42 285-95-060 30 Adapter Cable 4/0 T-Elbow $8.42 $252.60 43 287-72-350 8 Cone Stress #2-220 $6.84 $54.72 44 287-72-300 5 Cone, Stress #2 $6.84 $34.20 46 320-10-125 5 Plug, Bit-Elbow $25.26 $126.30 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET October 19, 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 comract for the purchase of Automatic Throw Over (ATe) Switches for DeNon Municipal Electric; providing for the expenditure of funds therefore; and providing an effective date (Bid 3220- Annual Price Agreement for ATe Switches awarded to Hughes Supply in the estimated amount of $85,160). BID INFORMATION This bid is for the annual comract to supply Automatic Throw Over (ATe) Switches for the maintenance and new construction of the Electric Distribution System. RECOMMENDATION We recommend this bid be awarded to the lowest responsible bidder meeting specifications, Hughes Supply, in the estimated amoum of $85,160. PRINCIPAL PLACE OF BUSINESS Hughes Supply Corimh, TX ESTIMATED SCHEDULE OF PROJECT ATe switches will be ordered as needed and can be delivered within 105 days after receipt of an order. This price agreemem will be in effect for a period of one year from the date of award and may be extended for additional one-year periods if agreed to by both parties with all pricing, terms and conditions remaining the same. FISCAL INFORMATION This item will be funded out of the Warehouse working capital accoum and charged back to the using department. Agenda Information Sheet October 19, 2004 Page 2 Attachment 1: Tabulation sheet 1-AlS-Bid 3220 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Bid # 3220 Date' September 23, 2004 Attachment 1 Annual Price Agreement For ATO Switches Hughes Supply Priester Supply TEC US & S Principle Place of Business: Corinth, TX Arlington, TX Decatur, TX Horizontal Mounted ~ Automatic Throw ~ Over Switch ~ (AT0) PME-9 ~ configuration, 25 ~ kV, 3-Phase, ~ padmounted, ~ Automatic 2 28506220 Transfer Switch $42,580.00 $43,495.00 $42,895.00 ~ with electronic ~ control & test ~ panel that ~ includes the ~ communication ~ card & pc interface cable. GRAND TOTAL $85,160.00 $86,990.00 $85,790.00 NM aa ~Uefa~tu~rt~ ~ S & C Electric S & C Electric Federal Pacific Mfg.'s Catalog ATPSE-9-54222-AZ-C6- Number Quoted: 66252RI-F2Y2Y8-E107 66252RI-F2YY8-E107 E3-T7-Y2-Y5-Y8 ADDENDUM I YES YES YES SHTPMENT 105 Days 105 Days 84-98 Days ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF AUTOMATIC THROW OVER (ATO) SWITCHES FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3220-ANNUAL PRICE AGREEMENT FOR ATO SWITCHES AWARDED TO HUGHES SUPPLY IN THE ESTIMATED AMOUNT OF $85,160). 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 3220 1 Hughes Supply Exhibit A SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3220 Exhibit A Bid # 3220 Date' September 23, 2004 Annual Price Agreement For ATO Switches Hughes Supply Principle Place of Business: Corinth, TX Horizontal Mounted Automatic Throw Over Switch (AT0) PME-9 configuration, 25 kY, 3-Phase, padmounted, Automatic i 2 28506220 Transfer Switch $42,580,00 with electronic control & test panel that includes the communication card & pc interface cable, GRAND TOTAL $85,160.00 Manufacturer's S & C Electric Name Quoted: Mfg.'s Catalog 66252RI-F2Y2Y8-E107 Number Quoted: ADDENDUM I YES SHIPMENT 105 Days AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: October 19, 2004 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 ACM: Kathy DuBose ~ SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Promotional Commercials from Comcast Advertising, DeNon, Texas, pertaining to DeNon Municipal Electric, which are available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 3245-Comcast Advertising in the amoum of $48,324). FILE INFORMATION Beginning in 1997, survey results indicated customers lacked the awareness that Denton Municipal Electric (DME) was their electric service provider or did not understand the benefits of the services provided by DME. In an effort to improve Denton citizens' knowledge and understanding of DME, DME comracted with Charter Media (formerly known as Marcus Media) in February of 1999. Charter Media produced and aired three (3) commercials on nine (9) differem networks, for a seven and one-half (7 1/2) momh period. Results from a customer survey conducted by DME in October of 1999, concluded that 93.5% of the survey respondents with cable television had viewed DME commercials. Seventy-seven percem felt positive about their viewing experience, 18% were indifferem, and 5% did not respond. This indicates that the cable television marketing campaign had been effective in reaching customers and improving DeNon Municipal Electric's image in the community. From February 2001 to February 2002, DME contracted with Charter Media to produce and air four (4) thirty-second informational commercials focusing on educating DeNon residems regarding electric retail deregulation and the DeNon City Council's "wait and see" approach to opting into retail competition. From December of 2001 to September 2002, DME contracted with Charter Media to produce and air four (4) thirty second educational commercials. The focus for the campaign was to educate customers on energy conservation and the various customer services that DME provided. Agenda Information Sheet October 14, 2004 Page 2 FILE INFORMATION In February of 2002, the University of North Texas conducted a phone based customer survey. Since the educational commercials had been airing such a short time, the survey's results were based on the branding and deregulation commercials that had been airing previously. The survey was used to help determine the effectiveness of the selected networks and air times for DME's informational spots. The survey indicated that more than 60% of Denton residents surveyed subscribed to Charter Cable Communications and 67.7% had seen DME's informational commercials. It was also determined that 76.1% of the respondents voted in the last city election. With the promising statistics, the Marketing Staff believed the airtime for the 2003 fiscal year would continue to benefit Denton residents by further educating them on energy conservation and the additional customer services provided by DME. The educational campaign continued to focus on helping customers manage their energy consumption more efficiently while helping them lower their electric bills. With the sluggish economy, DME's 2004 fiscal year campaign primarily focused on energy conservation and free customer services for residents to help lower their electric bill and manage their accounts more effectively. DME also introduced the GreenSense Program to a specific target market through selected networks. In January of 2004, the University of North Texas conducted a second phone based customer survey. The survey was used to help determine the continued effectiveness of cable television as a selected medium for reaching DME's customers. It was concluded from the survey that more than 57% of residents surveyed subscribed to Charter Cable Communications and 63.2% had seen DME's informational commercials. Customers rated cable television as one of the top three best ways to get information to them about electric services. DME will focus its 2005 fiscal year campaign on three key elements of our 100 years of service. These three elements included transmission and distribution, energy supply, and beneficial customer services such as energy conservation. With the current results of the customer survey, Comcast Advertising (formerly Charter Media) proves to be one of the most effective mediums in the area to reach our residents with such vital information. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board approved this item on September 27, 2004. RECOMMENDATION We recommend approval of this item in the amount of $48,324. Agenda Information Sheet October 14, 2004 Page 3 PRINCIPAL PLACE OF BUSINESS Comcast Advertising Denton, TX ESTIMATED SCHEDULE OF PROJECT The schedule for advertisements runs from October 1, 2004 through September 29, 2005. FISCAL INFORMATION Funding will be provided from account 600900.7912.9130A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Advertising Insertion Order 1-AlS-File 3245 Attachment 1 Exhibit I Denton Municipal Electric Cable TV Schedule 2004-2005 Network Start End Start Time per week ~pot rate Total Spots Tot, Amt. 1. CNN 9/27/04 9/25/05 M-F 6a-9a 5 $8.00 260 $2,080 CNN 9/27/04 9/25/05 M-F 6p-12m 8 $15.00 260 $6,240 CNN 9/27/04 9/25/05 Sa-Sa 6a-12m 8 $7.00 260 _$2,912 2, FoxN. 9/27/04 9/25/05 M-F 6a-ga 5 $7.00 260 $1,820 FoxN~ · 9/27/04 9/25/05 M-F 6p-12m 5 $15.00 260 $3,900 FoxN. 9/27/04 9/25/05 Sa-Sa 6a-12m 5 $7.00 ' 260 $1,820 3. HGTV 9/27/04 9/25/05 M-F 6w_12m 11 $22.00 520_ . $12.548 HGTV 9/27/04 9/25/05 Sa-Sa 6a-12m 7 $14.00 260 $5,096 4, MSNBC 9/27/04 9/25/05 M-F 6a-ga 5 $2,,00 260 $520 5..Discovery 9/27/04 9/25/05 M:,.F 6p-I2m 7 $22.00 364 $8,008 Disco~re_rv 9/27/04 9/25/05 Sa-Sa 6a-12m 5 $13.00 260 $3.38~ Weekly Totals: 71 commercials Campaign Total: 3,692 commericals Total Cost: $48,324 ORDINANCE NO. 2004 AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF PROMOTIONAL COMMERCIALS FROM COMCAST ADVERTISING, DENTON, TEXAS, PERTAINING TO DENTON MUNICIPAL ELECTRIC, WHICH ARE AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 3245-COMCAST ADVERTISING IN THE AMOUNT OF $48,324). WHEREAS, §252.022(a)(7) of the Texas Local Governmem Code provides that procurements of certain items or services that are only available from one source, as described therein, need not be submitted to the competitive bid process; and WHEREAS, the City Council wishes to purchase promotional commercial spots pertaining to DeNon Municipal Electric ("DME") from the City's sole local cable provider, Comcast Advertising, which services are presemly available from only one source, and are permitted in accordance with §252.022 of the Texas Local Governmem Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following purchase of services, as described in the "File Number" listed below, and on file in the office of the City's Purchasing Agem, is hereby authorized and approved: FILE NUMBER VENDOR AMOUNT 3245 Comcast Advertising $48,324 SECTION 2. That the acceptance and approval of the above item shall not constitute a contract between the City and Comcast advertising submitting the price quotation for such commercials umil Comcast Advertising shall comply with all requirements specified by the City's Purchasing Department. SECTION 3. That the City Manager is hereby authorized to execute any contracts or other related documents relating to the item specified in Section 1. hereof, and the expenditure of funds pursuant to said contract or written order, 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: 2-ORD-File 3245 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA iNFORMATION SHEET October 19, 2004 Legal Department Ed Snyder, Deputy City Attorney SUBJECT: AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING PAYMENT OF THE AWARD OF SPECIAL COMMISSIONERS INTO THE REGISTRY OF THE COURT IN CONDEMNATION PROCEEDING STYLED THE CITY OF DENTON, TEXAS V. ED WOLSKI, ETAL., CAUSE NO. ED-2003-01177 PENDING IN THE PROBATE COURT OF DENTON COUNTY, TEXAS; AND DECLARING AN EFFECTIVE DATE. BACKGROUND: On June 3, 2003, the City Council passed Ordinance No. 2003-161, authorizing the City to acquire the subject property and to institute condemnation proceedings if necessary. A Statement in Condemnation was filed with the Probate Court on September 15, 2003. The Special Commissioners' hearing in this matter was held on September 29, 2004, and resulted in an award of $126,600. OPTIONS: Pay Award of Special Commissioners into the Registry of the Probate Court and proceed with Airport nmway expansion project. RECOMMENDATION: The Legal Department recommends the City pay the award of the Special Commissioners into the Registry of the Probate Court. PRiOR ACTION/REVIEW: On June 3, 2003, by Ordinance No. 2003-161, the City Council found that a public necessity existed and that public welfare and convenience required the acquisition of real property title and interests for the subject property. FISCAL INFORMATION: $126,600.00. [ubrr~tted, Ed SnYder ( Deputy City Attorney S:\Our Domhq~:n~\Ordinancgs\O4\wolski ~ ac~e award ordinance.do~ ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING PAYMENT OF THE AWARD OF SPECIAL COMMISSIONERS INTO THE REGISTRY OF TItE COURT IN CONDEMNATION PROCEEDING STYLED THE CITY OF DENTON, TEXAS V. ED WOLSKI,, ET AL., CAUSE NO. ED-2003-01177 PENDING IN THE PROBATE COURT OF DENTON COUNTY, TEXAS; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Award of Special Commissioners, attached hereto as Exhibit "A", in condemnation proceeding styled The City of Denton, Texas v. Ed Wolski, et al., Cause No. ED- 2003-01177 pending in the Probate Court of Denton County, Texas is hereby authorized to be paid into the Registry of the Probate Court. SECTION 2. That 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: cOPY CITY OF DENTON, TEXAS Plaintiff CAUSE NO. ED-2003-01177 ED WOLSKI, TRUSTEE, MARGARET § RUSSELL, VELMA EDITH CAMPBELL, § BETTY DURHAM, AND RICHARD § CLAYTON DLrRHAM, RANDALL D. § SMITH, TRUST #1222 DATED § OCTOBER 15,2001, DEVON ENERGY § OPERATI2qG COMPANY, L.P., and § DENTON COUNTY, CITY OF DENTON, § and DENTON INDEPENDENT SCHOOL § DISTRICT, AS TAXING UNITS § Defendants § FILE FOR RECORD DENTON COUNTY CLERK SEP 2 9 2004 CYNTHIA MITCHELL .... -/~//~ .. DEPUTY CONDEMNATION PROCEEDINGS FILED /N THE PROBATE COURT OF DENTON COUNTY, TEXAS AWARD OF SPECIAL COMMISSIONERS On the 29th day of September, 2004, in the City of Dentor, Denton County, Texas, the above styled proceedings in eminent domain came on to be heard before the undersigned, three disinterested freeholders of Denton County, Texas, heretofore appointed as Special Commissioners, by the Judge of the Probate Court of Denton County, Texas to assess damages caused by these proceedings, and came the Petitioner, the City of Denton, Texas, a home-rule murdcipal corporation, situated in Denton County, Texas. Also came Defendants as hereinafter mentioned, and all parties having announced ready, the Commissioners proceeded to hear evidence and arguments of the parties, and made the following findings: I. That on the 15~h day of September, 2003, the City of Denton, Petitioner, filed its Statement in Condemnation, which was subsequently amended, with Petitioner's Seventh Amended Statement in Condemnation being filed on or about August 12, 2004 (the "Statement"). In the Statement, Petitioner, upon the facts and for the purposes therein stated, seeks judgment vesting in the City of Denton, Texas fee simple title in that certain tract or parcel of land containing 4.73 acres, together with improvements thereon and appurtenances thereto (the "Propertf') as more particularly described below, save and except oil and gas interests, of the owners of said oil and gas interest bat without having the right to use the surface of the property for the extraction of such oil and gas interests: F~LD NOTES to all that certain tract of land situated ha the John Scott Survey, Abstract Number 1222 in the City and County of Denton, Denton County, Texas and being part of the called 5.000 acre tract described in the deed from Larry Frank, Trustee to Ed Wolski, Trustee recorded ha Volume 2886, Page 224 of the Real Property Records of Denton County, Texas, and also said 5.000 acre tract recorded in a deed fi:om Ed Wolslci and Larry Frank, Trustees to J.G. Owen as recorded in Volume I967, Page 778, Real Property Records of Denton County, Texas, as recognized and occupied on the ground; the subject tract being more particularly described as folIows: BEGINNING for the northwest comer oft,he tract be/rig described herein at a capped iron rod set for the north 1/ne of said 5.000 acre tract and at the northeast comer of a called 0.27 acre tract of land described in a deed to the City of Denton as recorded in Volume 2519, Page 388, Real Property Records of Denton County, Texas, on the east side of Masch Branch Road, near its intersection w/th Jim Christal Road to the north and fi:om which the northwest comer of said 5.000 acre tract bears North 89 Degrees 58 Minutes 45 Seconds East, a distance of 30.00 feet; THENCE North 89 Degrees 58 Minutes 45 Seconds East with the said North line of said tract along said Jim Christal Road, a distance of 520.00 feet to a pk nail set for the Northeast comer of said 5.000 acres in said Jim Christal Road; THENCE South passing en route at a distance of 22.06 feet a ½ inch kon rod for witness on the south line of sa/d Jhu Christal Road and continuing along said course for a total distance of 396.02 feet to a found V2" iron rod for the southeast comer of said 5.000 acres; THENCE South 89 Degrees 58 Minutes 52 Seconds West with the south line of said 5.000 acre tract, a distance of 520.00 feet to a capped iron rod set for the southwest comer of the herein described tract and at the southeast comer of said 0.27 acre tract on the east side of said Masch Branch Road; THENCE North with the east line of said 0.27 acre tract along the east side of said Maser Branch Road, a distance of 396.00 feet to the PLACE OF BEG/NNING and enclosing 4.727 acres of land (the "4.727 Acre Tract"). The Property is being acquired for Denton Municipal Airport expansion purposes. Award of Special Commissioners - Page 2 That upon consideration of the Statement, duly filed with the Court, the Judge of said Court, did appoint Greg Bolhxg, Larry Collister, and Miller Davidge as Special Commissioners to assess damages caused by the taking of the Property (called the "Special Commissioners" ). III. Thereafter, the said Special Commissioners, qualified as such, each took the Oath prescribed by law, which Oaths are on file with the papers in this cause. IV. That a~er having so qualified, said Special Commissioners by written order, designated and appointed the 29th day of September, 2004, at 9:00 a.m. in the City Hall Work Session Room at City Hall, 215 East McK_irmey, Denton, Denton County Texas, as the date, time, and place for hearing said Statement and the parties, said date being the earl/est practical time and such place being/n the County in which the Property is situated. V. That a written notice of such date, time and place of the heating was issued by the Special Commissioners and the Defendants, Ed Wolsld, Trustee, Margaret Russell, Velma Edith Campbell, Betty Durham, Richard Clayton Durham, Randall D. Smith, Bruce Park, Trustee under Tnr~t-#1'222-D~t~-d-Oetob'er-12C2001;-D-evo-n-Energy Operating"-C'ompany;-, L-P:;-Denton County, City of Denton, and Denton Independent School District were duly served with notice and notified in the time and manner required by law of such hearing and the time and place thereof. Award of Special Comm/ssioners - Page 3 Vi. That on the 29* day of September, 2004, said Special Cormmssioners the following named parties appeared in person or by their attorneys: Edwin M. Snyder, attorney for the City of Denton, Petitioner Tom Dirickson, Attorney for Ed Wolski, Trustee did convene and and announced ready for such hearing and said Special Commissioners proceeded to hear evidence as to the damages to be sustained by the owners or parties having an interest in the Property by reason of the taking of the Property. After hearing and considering the evidence, said Special Commissioners did find and determine and accordingly assess damages to be paid by the City of Denton~ Texas, according to the roles of damages set forth in Title 4, Chapter 21 of the Texas Property Code as follows: Total damages to be paid by City of Denton, Petitioner, jointly to Defendants Ed Wolski, Trustee, Margaret Russell, Velma Edith Campbell, Betty Durham, Richard Clayton Durham, Randall D. Smith, Bruce Park, Trustee under Trust #1222 dated October 12, 2001, Devon Energy Operating Company, L.P., and Denton County, City of Denton, and D,cnton~lh~dep~ndeiitr..Schoel District, as taxing.uni~s, is in the amount of Said Award apportioned as follows: Jointly to Ed Wolski, October 12, 2001: Trustee, Randall D. Smith, Trustee under Trust #1222 dated Award of Special Commissioners - Page 4 Denton County, City of Denton, and Denton Independent School District, as taxing units: Margaret Russell, Velma Edith Campbell, Betty Durham, and Richard Clayton Durham: Devon Energy Operating Company, L.P.: -- The costs of these proceedings are adjudged against SIGNED THIS THE 29th day of September, 2004. SPECIAL COMMISSIONERS Greg Boling Miller Davidge The foregoing Award of Special Commissione~,r~led wi~_~ meat~e Presiding Judge of the Probate Court of Denton County, Texas, on the ,~__~,~ry offS04. JUD GE..P-RL~ID~,~G DON R. WINDLE JUDGE PROBATE COURT DENTON COUNTY, TEXAS Award of Special Commissioners- Page 5 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: October 19, 2004 Electric Utility Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreement with R.J. Covington Consulting, LLC for consulting services relating to Task Order no. 04-C; providing for cominued participation in the ongoing electric matters before the Texas Public Utilities Commission and the Electric Reliability Council of Texas by DeNon Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND For the past eight and a half years, it has been the practice of DeNon Municipal Electric (DME) to maintain a general regulatory services task order with R. J. Covington, initially as an employee of Resource Management International followed by contracting with his independent consulting firm. The previous general regulatory service task orders had typically been for $100,000. Based on the assumption that the PUC's preoccupation with the wholesale market redesign process would reduce their activity in other areas, the amount of the last two regulatory services contracts has been reduced. The most recent of these contracts was issued at the beginning of November, 2003 in the amoum of $60,000. All funds have been utilized in the November 2003 task order. Since the passing of Senate Bill 7, Mr. Covington's firm, working in coordination with DME and Garland staff members, has been critical in providing coverage of the Austin based Electric Reliability Council of Texas (ERCOT) committee meetings and Texas Public Utilities Commission (TPUC) workshops that occur regularly and impact the operational structure of existing the retail and wholesale deregulated marketplace. The ongoing changes being imroduced almost daily imo the existing deregulated electric marketplace design by the TPUC, ERCOT staff and electric market participants are often critical to DME's ability to successfully function in the marketplace. Failure of DME to monitor and participate effectively in these activities will result in changes to the existing market model harmful to the interest of smaller players such as DME. While the PUC ERCOT Texas Nodal Team (TNT) stakeholder activity has been focused on the wholesale market redesign, activity in the various standing ERCOT committees and subcommittees cominues to be high and has addressed several complex issues that required analysis. In the area of Protocol Revisions alone, Revisions to the existing market protocols continue to be filed, discussed, analyzed, and approved. Also several significant reliability related criteria, such as generator governor response requirements have been enacted. In the past the general task order has been used to provide a variety of analytical and strategic planning support to DME in areas such as: · Development of strategic options · Gas price forecasts · Assistance in financial and technical model development · Drafting of small contracts and agreements · Technical support for state legislative efforts · Review and analysis of TMPA financial records · DME load analysis · Support for DME Texas Public Utility Commission (TPUC) filings · Representation of DME at Electric Reliability Council of Texas (ERCOT) committee meetings · Review and monitoring of all activities at the TPUC and ERCOT to identify developing issues that will impact DME The existing DME staff is unable to perform all of these types of tasks either because of workload or lack of expertise. In addition, the Covington firm's location in Austin provides a cost effective way to access data located in Austin, such as TPUC records and filings by other electric utilities, a cost effective way of assuring DME's interests are represented at the numerous critical meetings that are held in Austin, and provides access to information sources not available to staff isolated in Denton. The availability of a general task order with a firm that has an in depth knowledge of DME's structure and position in the market allows DME to react to unforeseen issues in a timely fashion. In today's deregulated environment, such issues often require identification and reaction much faster than the City's contract approval process or DME's limited staff can accommodate. OPTIONS 1. Continue to use the Covington firm's services 2. Reduce DME participation in the Texas electric market. Rely totally on DME staff for all other technical issues. RECOMMENDATIONS DME staff recommends approval of the task order. PRIOR ACTION/REVIEW (Council, Boards, Commission) The Public Utilities Board approved this item at its October 11, 2004 meeting by a vote of 7 to 0. FISCAL INFORMATION The cost of this task order is not to exceed $60,000. EXHIBITS 1. Ordinance 2. Task Order 04-C 3. PUB Minutes Respectfully submitted: Sharon Mays Director of Electric Utilities ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH R. J. COVINGTON CONSULTING, LLC FOR CONSULTING SERVICES RELATING TO TASK ORDER NO. 04-C; PROVIDING FOR CONTINUED PARTICIPATION IN THE ONGOING ELECTRIC MATTERS BEFORE THE TEXAS PUBLIC UTILITIES COMMISSION AND THE ELECTRIC RELIABILITY COUNCIL OF TEXAS BY DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public imerest to engage the firm of R. J. Covington Consulting, LLC of Austin, Texas ("Covington"), to provide professional consulting services to the City relating to Task Order No. 04-C; which includes, without limitation, services to be rendered regarding ongoing electric matters at the Texas Public Utility Commission ("PUC") and the Electric Reliability Council of Texas ("ERCOT"); and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional services, and that limited City staff cannot adequately perform the services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Governmem Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, Covington has represented DME continuously and ably over the last eight (8) years, and has proven to be a valuable, affordable, competem, and dependable professional resource that has expertise in, and is well-acquainted with the electric financial and regulatory framework of DeNon Municipal Electric ("DME"), as well as its relations with the PUC and ERCOT. Covington and his staff are familiar with the characteristics, operations, and present rate structure of DME: and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional services, as set forth in the Professional Services Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized to execute a Professional Services Agreement with R. J. Covington Consulting, LLC of Austin, Texas, for professional consulting services relating to Task Order No. 04-C, to the City and to Denton Municipal Electric, in an amount of not to exceed $60,000; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference as Exhibit "A." SECTION 2: That the award of this Agreemem by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Covington and the ability of 1 EXHIBIT 1 Covington to perform the professional services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. 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\R J Covington Consulting LLC-DME-Ord Aprv TO 4-C-2004.doc STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO DENTON MUNICIPAL ELECTRIC THIS AGREEMENT is made and entered into on the ~ day of ,2004, by and between the City of Denton, Texas, a Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Texas 76201 ("CITY"); and R. J. COVINGTON CONSULTING, LLC, a Texas Limited Liability Corporation, with its principal office at 11044 Research Boulevard, Suite A-325, Austin, Texas 78759, hereafter "COVINGTON"; acting herein by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants, promises and agreements herein contained, the CITY and COVINGTON do hereby AGREE as follows: ~,RTICi.R 1 EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVINGTON, as an independent contractor, and COVINGTON hereby agrees to perform the services herein in connection with the Scope of Services as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. AR TICT ,E Il SCOPE OF SERVICES A. COVINGTON shall provide to the CITY professional consulting services pertaining to the participation of Denton Municipal Eleclric, a municipally-owned electric utility, in various workshops, investigations, and other proceedings at the Texas Public Utilities Commission ("PUC") and at the Electric Reliability Council of Texas ("ERCOT"). COVINGTON agrees to perform those services and tasks more particularly and specifically described in Task Order No. 04-C attached hereto and incorporated herewith by reference. B. To consult with the City Manager, Assistant City Manager/Utilities, the Director of Electric Utilities, the Utility Attorney, and any other designated administrative personnel regarding any and all aspects of the services to be performed pursuant to this Agreement. ARTICI,E III PERIOD OF SERVICE This Agreement shall become effective on the date this Agreement is approved and upon the issuance of a notice to proceed by Denton Municipal Electric. The termination date of this Agreement shall be upon the earliest to occur of the following events: completion of the work described herein and in the attached Task Order No. 04-C; or upon the depletion and exhaustion of 1 EXHIB.IT 2 the $60,000 not to exceed amount provided for herein; or upon fif~e~h (15) day's written notice to terminate, issued by the Director of Electric Utilities, DME. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. COVINGTON shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its Director of Electric Utilities. AR TICLF, IV COMPENSATION COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense,. overnight courier, photocopy expense, transportation, travel, communications, subsistence and lodging away from home and similar incidental expenses reasonably incurred in connection with that assignment. BILLING AND PAYMENT: I. For and in consideration of the professional services to be performed by COVINGTON herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct non-labor expense, not to exceed $60,000 for those services described in Task Order No. 04- C. 2. The fee for the services described in this Agreement to be performed by COVINGTON are to be billed the rates as set forth in Exhibit "A" attached hereto and incorporated herewith by reference. Billing shall be reported in minimum one-quarter (1/4) hour increments. 3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly statements reridered to the CITY through its Director of Electric Utilities. The fee bills as submitted, shall be allowed and approved by the Director of Electric Utilities. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. 4. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the City Manager or the Director of Electric Utilities, or which is not submitted in compliance with the terms of this Agreement. The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement. 5. it is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not-to-exceed fee as stated, without first having obtained written authorization from the CITY. PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty (40) days after receipt of COVINGTON'S undisputed statement thereof, the amounts due COVINGTON will be increased by the rate of one percent (1%) per month from the said £orty (40th) day, and in addition, COVINGTON may, after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until COVINGTON has been paid in full all amounts due for services, expenses and charges provided. However, nothing herein shall require the CITY to pay the late charge of one percent (1%) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such defect. ARTICLE V OBSERVATION AND REVIEW OF THE WORK COVINGTON will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any sub¢onsultants performed hereunder. OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY. COVINGTON shall have the right to make and retain copies and use all Work Products; provided, however, the use shall be limited to the intended use for which the services and Work Products are provided under this Agreement. COVINGTON may use and may copyright certain non-sensitive Work Products as property of COVINGTON; provided that prior written approval is obtained from CITY, whose approval shall not be unreasonably withheld, and providing that copywriting will not restrict CITY'S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement. The Work Products shall not be changed or used for purposes other than those set forth in this Agreement without the prim' written approval of COVINGTON. If CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CITY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected with the release or any third party's use of the Work Products. INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY. COViNGTON shall not have or claim any right arising from employee status~ 3 AR TICLF. VIII INDEMNITY AGREEMENT COVINGTON shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsultants, in performance of this Agreement. COVINGTON'S liability under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as set forth in Article IX. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at taw or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. INSURANCE During the performance of the Services under this Agreement, COVINGTON 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 Carriers of at least an "A-" or above: A. 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 than $100,000 for each occurrence, and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident; and with property damage limits of not less than $100,000 for each accident. C. Professional Liability Insurance with policy limits of not less than $1,000,000 annual aggregate. D. COVINGTON shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies to the extent legally possible, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days prior written notice to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of the change or cancellation, deliver substitute policies furnishing the same coverage to the CITY. ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. AR TICLR XI LIMITATION OF LIABILITY To the extent permitted by law, the total liability of COVINGTON to CITY for any and all claims arising out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third-party claims, shall not exceed one million dollars ($ t,000,000). ARTICI .F, CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any consequential, indirect or special damages. ARTICLE XIII PROFESSIONAL STANDARDS COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services. No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed. ARTICLE XIV TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by giving thirty (30) days advance written notice of termination to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given: (I) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperfom~ance, and not less than ten (10) business days in which to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If this Agreement is terminated prior to completion of the services to be provided hereunder, 5 COVINGTON shall immediately cease all services and shall rei~der a final bill for services to the CITY within 30 days after the date of termination. The CITY shall pay COVINGTON for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination in accordance with Article IV, Compensation. Should the CITY subsequently contract with a new Consultant for the continuation of services on the Project, COVINGTON shall cooperate in providing information. COVINGTON shall mm over all documents prepared or furnished by COVINGTON pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. ARTICI~E XV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any sub-consultants of COVINGTON, for the accuracy and competencY of their designs or other work product. ARTiCLR ~ 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 Un[ted States mail at the address shown below, certified mail, return receipt requested unless otherwise specified herein. Mailed notices shall be sent to the parties at the following addresses: To COVINGTON: To CITY: R.J. Covington Consulting, LLC Attn: Richard J. Covington 11044 Research Blvd., Suite A-325 Austin, Texas 78759 City of Denton, Texas Atto: Michael A. Conduff, City Manager 215 East McKinney Street Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given or within three days after the date of mailing. ARTICLE XVII ENTIRE AGREEMENT This Agreement consisting of nine (9) pages, and four (4) additional pages consisting of Task Order No. 04-C, 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. ARTICI ,F, XVIII 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 party shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLF. XIX COMPLIANCE WITH LAWS COVINGTON shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICI,F. XX DISCRIMINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. A R TI CI .R PERSONNEL COVINGTON represents that he has secured, or will secure at his own expense any additional personnel required to perform all the services required under this Agreement. Such personnel shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. All services required hereunder will be performed by COVINGTON or under his supervision. All persmmel engaged in work shall be qualified and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XXII ASSIGNABILITY COVINGTON 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. MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, 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, duly executed; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. MISCELLANEOUS A. COVINGTON agrees that CITY shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the fight to examine any directly pertinent books, documents, papers and records of COVINGTON involving transactions relating to this Agreement. COVINGTON agrees that the CITY shall have access during normal working hours to all necessary COVINGTON facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. The CITY shall give COVINGTON reasonable advance notice of any intended audits. B. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by, and construed in accordance with the laws of the State of Texas. C. COVINGTON shall commence, carry on, and complete the work required by this engagement with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the CITY. D. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by this engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as required for COVINGTON to perform services under this Agreement. E. 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. 1N WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covington Consulting, LLC has executed this Agreement by its duly attthorized officer on this the __ day of ,2004. CITY OF DENTON, TEXAS A Municipal Corporation By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: It]ERBERT L. PROUTY, CITY ATTORNEY By: "COVINGTON" R.J. COVINGTON CONSULTING, LLC A Texas Limited Liability Corporation By: Richard J. Co~t/gion, P'~ent S:\Our Documents\Contracts\04",[U Covington Consulting LLC-?SA-TO 04-C 2004-P, cgulatory Services ~ PUC.doc ATTACHMENT PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON~ TEXAS AND R.J. COVINGTON CONSULTING, LLC TASK ORDER NO. 04-C Regulatory Services This Task Order is directed at assisting the Denton Municipal Electric staff ("Staff") as they address the continuing changes to the Texas electric market at the Public Utility Commission of Texas ("PUC") and at the Electric Reliability Council of Texas ("ERCOT"). RJC will work with Staff to develop and present DME's position on those issues that may affect DME and the City. Following is a discussion of the key services to be provided under this Task Order. Discussion It is important for DME to be knowledgeable on issues at the PUC and ERCOT and to participate in the discussions to represent the municipal electric utility market segment in general, and DME customers specifically. Task A provides the scope of services for continued participation at the PUC in dockets and projects that affect DME. Because DME's transmission rates are now regulated by the PUC, it is important to stay up-to- date on projects and dockets that may affect recovery of transmission costs from other parties in ERCOT. The PUC also addresses issues from time to time that will either directly, or indirectly, affect the way DME conducts it business. This Task Order addresses regulatory issues such as Code of Conduct and Customer Safeguard rules, the Project on defining Market Power in ERCOT, and similar rule-making related issues. Because of the effort required for dealing with the PUC's Substantive Rule 25.50t related to evaluation of changes in the ERCOT market design, the Nodal Market Design work is addressed in a separate Task Order. All work performed at the PUC is conducted at the directior~ of the Director of Electric Utilities. In addition, there are issues that arise at ERCOT that are unrelated to the Nodal Market Design. The scope of services listed in Task B addresses coverage of these issues. This includes covering the ERCOT subcommittee that is responsible for changing protocols that affect current market operations. It also include coverage of the Wholesale Market Subcommittee which is responsible for evaluating and forwarding to ERCOT's Technical Advisory Committee (TAC) proposed changes in the current market design that affect the way utilities irt ERCOT operate. RJC attends meetings and researches issues that assist the Director in preparing for these monthly TAC meetings in Austin. Task Order 04-C Regulatory Services Task C allows RJC to augment Staff's efforts to process the wide range of information that is needed to keep up with activities at the PUC and ERCOT and to support staff in evaluating which of the many issues that arise require DME's attention. In addition to surveying and reporting on on-going activities at the PUC and ERCOT, RJC provides technical assistance to answer specific questions Staff may have for their evaluation of the impact on DME of various issues and in responding to questions from the Utility Board and City Council. Following is a detailed list of services to be provided under this Task Order: Scope of Services TaskA PUC Regutato..rySupr~ort Task A-1 Attending Workshops and Hearings at PUC 1. RJC will stay informed on activities at the PUC and will attend workshops and hearings as needed. 2. When appropriate, RJC will participate in workshops and hearings to represent interests of City, based on directions of Staff. 3. RJC will work with Staff in developing positions that should be taken and strategies for working with parties involved. Task A-2 1. 2. Analyze Proposed Rules and Policies Proposed new rules and rule changes from the PUC will be analyzed. PUC will discuss proposed new rules, and changes to existing rules with Staff and legal counsel, helping to identify areas of concern and preparing positions that represent the interests of the City. PUC will meet with PUC staff and other parties as appropriate to discuss proposed rules, and present the City's concerns regarding such proposals. Task A-3 Preparation of Comments l. PUC will prepare or assist in preparing comments to be filed with the PUC representing City's position on issues brought up in proposed rules, projects and dockets. 2. These comments will be coordinated through Staff and the City's legal team. 3. RJC will assist the City's legal team as necessary in the preparation and filing of comments and testimony in dockets that have been identified by Staff as requiring intervention to protect the City's interest. 2 of 4 Task Order 04-C Regulatory Services TaskB Assistance With ERCOT Task B-1 Attending Committee and Working Group Meetings at ERCOT I. RJC will stay informed on activities at the ERCOT Independent System Operator ("ISO") and will attend meetings as directed. 2. RJC will participate in discussions in meetings to .represent interests of City, based on directions of Staff. 3. RJC will work with Staff in developing positions that should be taken and strategies for working with other ERCOT stakeholders. Task B-2 Analyze Proposed Policies and Protocols 1. Proposed new policies and protocols from the ISO will be analyzed. 2. RJC will review proposed protocols with Staff, to identify areas of concern and prepare responses that represent the position of the City on the issues before the committees. 3. RJC will meet with ERCOT .staff and other stakeholders to discuss proposed protocols, and negotiate reconciliation of concerns. Task B-3 1. Preparation of Comments RJC will prepare or assist in preparing whitepapers and conmaents to be submitted to the committees and be' prepared to present such papers to represent the City's position on issues. These papers and comments will be coordinated through Staff and when necessary, the City's legal team. Task C Industry Monitoring and Evaluation 1. RJC will have continuing communication with Staff and the City's legal team in order to monitor proposed industry changes and address those issues affecting municipalities. 2. An on-going dialog will be maintained with Staff and the legal team in order to evaluate changing operating and market requirements and conditions, and evaluate potential effects on City operations. 3. Information necessary to supplement and support the decision making process will be provided as requested. 4. A summary of activities at the PUC and ERCOT will be provided to the Director of Electric Utilities weekly. Budget The not-to-exceed amount for the above scope of services for both labor and out-of- pocket expenses is $60,000. This amount will not be exceeded without prior written 3 of 4 Task Order 04-C Regulatory Services approval of the City of Denton, Texas. Because of the uncertainty regarding the level of activity required, this budget is a good faith estimate. Additional Task Orders may be required to complete this work. RJC will bill this Task Order monthly, with supporting documentation of activities performed. The termination date of this Task Order shall be on the earliest to occur of the following events: the date of completion of fhe work described herein; or upon the depletion and exhaustion of the not-to-exceed amount provided for herein; or upon fifteen (15) days written notice to terminate issued by the Director of Electric Utilities, DME. The work being performed wiI1 be under the supervision of the Director of Electric Utilities, and may be modified at any time upon appropriate notice to RJC. EXECUTED this the __ day of October, 2004. AUTHORIZED BY: ACCEPTED BY: CITY OF DENTON, TEXAS A Texas Municipal Corporation R.J. COVINGTON CONSULTING, LLC By : By: . Dated: Dated: ATTEST: JENNIFER WALTERS, City Secretary By: APPROVED AS TO LEGAL FORM: HERBERL L. PROUTY, CITY ATTORNEY S:\Our Doeuments\Contracts\04\RJC TO 04-C 2004-Regulatory ServicesLdoc 4of4 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 October 11, 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, October 11, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of DeNon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Dick Smith, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities The Public Utilities Board convened its Open Session at 9:00 a.m. The Chair, Charldean Newell, stated to the Board that there were three Closed Meeting agenda items that were set forth in the Closed Meeting agenda and requested a motion to consider all agenda items under §551.086 §551.071 of the Texas Governmem Code - Deliberations Regarding Certain Public Power Utilities Competitive Matters and §551.071 of the Texas Government Code - Consultation With Attorney. A motion was then made and seconded respecting the consideration of three items by the Board. The Board then voted 6-0 (Baines late) to move imo Closed Session to consider both items, and thereafter convened its Closed Session at 9:01 a.m. mo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS ---UNDER TEX. GOV'T. CODE §551.086. 1. Receive information from one of the City's Texas Municipal Power Agency ("TMPA") Board Members and/or from City Staff pertaining to certain competitive electric matters regarding present and future maintenance issues, financial issues, operational issues, reliability issues, possible litigation involving the agency, any pending legal matters, together with any related strategies or issues concerning the City's imerest in, and its business relationship with TMPA; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. 2. Receive competitive electric information, including financial information from Staff pertaining to DeNon Municipal Electric ("DME") electric service rate issues and strategies, including without limitation, the first quarter Energy Cost Adjustmem ("ECA") rate and other related matters; and discuss, deliberate, consider, determine policy, and provide Staff with direction regarding such matters. Bo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS --- UNDER TEXAS GOVERNMENT CODE Page 1 of 2 EXHIBIT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 §551.086. CONSULTATION WITH ATTORNEYS --- UNDER TEXAS GOVERNMENT CODE §551.071. 1. Receive competitive public power information and documentation from Staff regarding the Second Supplement to Transition Power Agreement, proposed to be executed by the City of Denton, Texas and the Seller thereof, to reflect certain market changes that have occurred since closing of the Transition Power Agreement; the status of other public power operational matters; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. Further, discuss and consider the legal ramifications and effect regarding execution of the Second Supplement to Transition Power Agreement. Discuss other legal issues concerning and related to this matter with the City's attorneys, where to discuss these matters in public would conflict with the duty of the City's attorneys to the Public Utilities Board under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. The Closed Session was completed at 9:27 a.m. The Public Utilities Board reconvened in Open Session at 9:28 a.m. The meeting was called to order to consider the following business: CONSENT AGENDA: 1) Consider approval of Task Order 04-C with R. J. Covington Consulting, LLC for general regulatory project support in workshops, investigations, and other proceedings at the Texas Public Utility Commission. 2) Consider approval of Task Order 04-D with R. J. Covington Consulting, LLC for continued support in the ongoing Texas Public Utility Commission (TPUC)/Electric Reliability Council of Texas (ERCOT) electric wholesale market design project. Board Member Phil Gallivan moved to approve Consent Agenda Items #1 & #2, with a second from Board Member Bob Bland. The motion was approved by a vote of 7-0. Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: October 19, 2004 Electric Utilities Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a professional services agreement with R.J. Covington Consulting, LLC for consulting services relating to Task Order No. 04-D; providing for continued support in the ongoing electric wholesale market design project by Denton Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND The Texas Legislature mandated a Texas wholesale electric market in which any generation resource can sell any amoum of energy it desires to any load within Texas, regardless of the ability of the existing electric transmission system to handle the resulting energy flows on that transmission system. This inevitably results in periods during which specific transmission lines are loaded beyond their capacity to safety transport the energy, a condition referred to as transmission congestion. When this occurs, ERCOT is tasked by the TPUC with idemifying new transmission projects that need to be constructed to relieve the congestion and local Transmission/Distribution Service Providers (TDSPs) are required to build the idemified projects and recover those costs through filing with the TPUC for a Transmission Cost of Service (TCOS) rate that is uplifted to all customers in ERCOT through a uniform charge assessed on all TDSPs in ERCOT on a load ratio share. The TDSPs in turn pass these costs to customers through their wire use charges. There are three major flaws in this system. The first is that generators no longer have any incentive to build new facilities in locations where adequate transmission to support their project already exists because they do not have to pay for the cost of transmission upgrades caused by their project. Left unchecked, this process will ultimately result in Texas electric customers paying for an extremely expensive transmission system, raising the overall cost of electric energy in the state. The second is that completion of new transmission projects to relieve transmission congestion usually takes several years, in the interim some method must be used to ration the limited amount of transmission capacity among those desiring to use it. The third is that there are some areas where it will never be possible to build the additional transmission projects needed to relieve the congestion. The DFW metropolitan area is an example of such an area. It is virtually impossible, with any technology known today, to build several high voltage transmission lines and their associated support facilities (substations, etc.) imo the heart of cities such as Dallas or Fort Worth. However, that is what is required in order to relieve the transmission congestion that exists today in those areas. In order to implement the Legislative mandates, the various market stakeholders in ERCOT developed a method to ration transmission capacity in constrained areas that was put into effect in 2001. The process identifies Commercially Significant Constraints (CSCs), which are defined as "a transmission constraint that limits the free flow of energy within the ERCOT market to a commercially significant degree". Generators are then grouped into Congestion Management Zones that are geographical areas defined such that each generator within the boundaries of the zone has a similar effect on the loading of the CSC transmission facilities between congestion zones. When a CSC becomes overloaded, ERCOT pays generators in the zone on one end of the overloaded CSC to reduce their output while simultaneously paying generators in the zone on the other side of the CSC to increase their output until the overload is relieved. The amount of the payments is usually determined through a bidding process. The cost of making these payments is then allocated to the entities whose schedules caused the original congestion. ERCOT also auctions off hedging rights on identified CSCs. The revenues from this auction are returned to loads in ERCOT on a load ration share basis. The congestion payments made by entities scheduling across CSC's are used to offset costs allocated to those who have bought the hedging rights for that CSC's congestion relief. However, not all transmission congestion occurs on CSC's. There is often transmission congestion on transmission lines within a Congestion Management Zone. This "local congestion" is usually caused by transmission system configurations that no longer adequately support the electric load growth in an area rather than by wholesale market activity. "Local congestion" is not significant enough to be considered a CSC but it also must be relieved by raising and lowering generation of specified generating units and these generators are also both paid for that service. Under the present system, the cost of relieving "local congestion" is uplifted to all loads in ERCOT on a load ration share basis. The DFW area "North Zone" experiences a significant amount of"local congestion" for which there is little hope of relief from construction of new transmission or new generation. Close to $72 million of "local congestion" costs were experienced in the DFW area in 2003. During 2003, the TPUC, under what many believe is some amount of influence from Pat Wood, former Chairman of the TPUC, now Chairman of the Federal Energy Regulatory Commission, decided that a different system of transmission management should be implemented in Texas. Some economists believe that this different type of system will provide some level of incentive for generators to locate new projects in areas that do not cause transmission congestion. The system, referred to as Locational Marginal Pricing (LMP), is an extremely complex nodal pricing system that will be very expensive to implement. Some estimates have been as high as $300 million for all parts of the Texas market (ERCOT and stakeholders) to implement such a system. A recent draft of a portion of the LMP Cost Benefit Study being developed as part of the market redesign effort estimates these costs at between $143,000,000 and $100,000,000 with $70,000,000 to $55,000,000 assigned to ERCOT. In addition to these one-time development costs, the draft report estimates annual ERCOT O&M costs of between $13,500,000 and $8,500,000. The portion of this cost to change the ERCOT system will be passed through to all loads in ERCOT, including the customers of DME. The success of this system in areas where it has been implemented has been questionable, especially when its costs are considered. However, despite consistent comments by a number of wholesale market stakeholders and consumers representatives questioning the wisdom of implementing such a system, the TPUC pressed forward. This rush into an LMP type system was made without adequate cost benefit analysis on the part of the TPUC. Furthermore, implementation of an LMP type system will result in the high DFW local congestion costs being allocated to only electric customers in the DFW area. As discussed above, DFW has almost no way to economically remove its local transmission congestion costs absent some major, unforeseen technological breakthrough. Imposition of an LMP type system in ERCOT will made the DFW a much higher cost energy area than other parts of Texas, with the obvious negative impacts on DFW economic health and growth potential. The overall cost to DME customers of implementing an LMP type system combined with potentially large negative impact on the DFW area economy are of grave concern to DME. Through the use of both the Lloyd Gosselink law firm and R. J. Covington Consulting and the efforts of DME staff, DME has actively participated in discussions of this issue both at ERCOT and the TPUC since its inception. Despite those efforts and the efforts of many other parties, the TPUC initially refused to consider the many problems of implementing an LMP type system in Texas. In 2003, the TPUC ordered a very expedited year and a half design process intended to force an LMP system into Texas. DME joined with a number of other groups such as the TMPA cities, two large Texas city aggregation groups, Retail Energy Providers, and some consumer representatives in both actively participating in the design process and utilizing all available avenues to force the TPUC to perform a proper cost/benefit analysis prior to final adoption of an LMP type system for Texas. Although this process has been frustrating, time consuming, and expensive, our efforts, combined with the replacement of two of the three TPUC Commissioners, seems to have begun to produce some positive results. First, we have been successful in getting some stakeholder support for a plan that would somewhat protect DFW customers from at least part of the high congestion costs a pure LMP/economic signal based system would allocate to those customers if such a system is adopted. While we have not been able to have this concept formally included in the stakeholder developed design, just the fact that it is being discussed is encouraging. Second, we were able to force the TPUC staff and the ERCOT stakeholder process to make the cost benefit study of the proposed nodal design a real study rather than just a sham process designed to provide a predetermined pro LMP result and our consultant was named Chair of the stakeholder committee overseeing the preparation of the cost benefit study. Third, at the September 2nd, 2004 TPUC open meeting, the Commissioners voted to consider several changes to the initial LMP order. These changes cover such areas as: · Removal of the requirement that, if the results of the cost benefit study do not support a change to a LMP design, the study has to be re-worked iteratively until it showed a positive cost benefit. · A significant slowing down of the schedule originally set by the order for moving to a new market design. · Addition of a six month period for the TPUC to hold workshops for discussion of the cost benefit study results and the overall market design issue. In addition, the first draft of the portion of the cost benefit study covering the qualitative "Other Market Impact Assessment" did not indicate any strong benefits to moving to a nodal system. However, although more market participants are beginning to see the weaknesses of the pure LMP approach and to question the need for such a drastic system design change, a very vocal small group of powerful stakeholders and the Commission staff are aggressively attacking the consultant's draft. These positive results may also have been damaged by the receN issuance, by the TPUC staff, of their annual State of the Market report. They had the report prepared by a consultant that is very pro LMP. It attempts to use statistics from 2003 wholesale market performance data to justify the need to move to a full LMP based market design. They intend to issue a second report on "ERCOT Operation Issues" soon and hold a workshop at which only the pro-LMP consultant who has written these reports will be allowed to make a presentation. We can expect the TPUC staff to do everything in their power to undermine any move away from implemeNation of a full LMP based market design. Despite the obvious pro-LMP bias of the TPUC staff, two of the three TPUC Commissioners have made it very clear that they will not move to a LMP design unless they can see clear benefits for making such a drastic and expensive change. They intend to take time to study the issue fully before reaching any conclusion. The third Commissioner is concerned about some acknowledged weaknesses in the existing market design and not convinced that there is any way to deal with these problems other than adopting a LMP approach. It is clear to everyone that the existing system needs to be improved but adoption of an LMP based system no longer seems to be the approach that is guaranteed to be adopted. While we are pleased with this success, it also places us at a critical point in the process. We have succeeded in getting the Commissioners to take our concerns seriously. However, the LMP advocates, who had become complacent because they felt that the change to a LMP based system was guaranteed, have now rallied and begun a strong attack on any information that does not support their position. If we do not continue with our active participation in the stakeholder design process and the subsequeN Commission review process, the only strong voice left will be that of the pro LMP group and we will have wasted all the work we have done to reach this poiN. Furthermore, we will lose our credibility with the Commissioners. Continued active participation in the design process and subsequent TPUC review workshops and hearings is necessary in order to preserve the positive progress we have made and to see that, in the event an LMP type system is implemented, it that takes into consideration the needs of DME's customers (such as the ability to schedule power from the Gibbons Creek plan to DeNon without paying large transmission costs). Such active participation requires having representatives of DME attend meetings in Austin as often as two or three times a week as well as filing of formal comments at the TPUC. Additional regulatory, legal, and legislative efforts will also be required to ensure that the TPUC completes the proper analysis before mandating such a system. In order to maintain the necessary level of participation, the support of both the Lloyd Gosselink firm and R. J. Covington Consulting are required. The Covington firm, which is located in Austin, represents DME at many of the Austin market design and TPUC meetings and workshops more cost effectively than having DME staff commute to Austin. Furthermore, DME does not have sufficient staff to both attend all the meetings, review position papers, prepare commems, and as well as maimain day-to-day responsibilities. The Gosselink firm assists in dealing with the TPUC at formal hearings and through filings in the various rulemaking proceedings that have been set up for the market design processes. Garland is engaging these same firms for this effort, which allows for cost sharing between Garland and DeNon. OPTIONS 1. Approve the Task Order 04-D and cominue active participation in the wholesale market design process. 2. Do not approve Task Order 04-D and eliminate active participation in the wholesale market design process. RECOMMENDATIONS DME recommends approval of Task Order 04-D with R. J. Covington Consulting, LLC for support in the ongoing Texas Public Utility Commission (TPUC)/Electric Reliability Council of Texas (ERCOT) electric wholesale market design project. Failure to cominue to actively participate in the wholesale market design process will virtually guarantee that DME's customers and the DFW area in general will be economically harmed to some degree. In addition, it will cause DME to lose credibility with the PUC Commissioners, which could hurt our ability to protect our interests in future proceedings. PRIOR ACTION/REVIEW (Council, Boards, Commission) The Public Utilities Board approved this item at its October 11, 2004 meeting by a vote of 7-0. FISCAL INFORMATION Task Order 04-D with R. J. Covington Consulting, LLC not to exceed not to exceed $90,000. EXHIBITS 1. Ordinance 2. Task Order 04-D 3. PUB Minutes Respectfully submitted: Sharon Mays Director of Electric Utilities ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH R. J. COVINGTON CONSULTING, LLC FOR CONSULTING SERVICES RELATING TO TASK ORDER NO. 04-D; PROViDiNG FOR CONTINUED SUPPORT IN THE ONGOING ELECTRIC WHOLESALE MARKET DESIGN PROJECT BY DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public imerest to engage the firm of R. J. Covington Consulting, LLC of Austin, Texas ("Covington"), to provide professional consulting services to the City relating to Task Order No. 04-D; which includes, without limitation, services rendered regarding the ongoing Texas Public Utility Commission ("PUC")/Electric Reliability Council of Texas ("ERCOT") electric wholesale market design project; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional services, and that limited City staff cannot adequately perform the services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Governmem Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, Covington has represented DME continuously and ably over the last eight (8) years, and has proven to be a valuable, affordable, competem, and dependable professional resource that has expertise in, and is well-acquainted with the electric financial and regulatory framework of DeNon Municipal Electric ("DME"), as well as its relations with the PUC and ERCOT. Covington and his staff are familiar with the characteristics, operations, and present rate structure of DME: and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional services, as set forth in the Professional Services Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized to execute a Professional Services Agreement with R. J. Covington Consulting, LLC of Austin, Texas, for professional consulting services relating to Task Order No. 04-D, to the City and to Denton Municipal Electric, in an amount of not to exceed $90,000; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference as Exhibit "A." SECTION 2: That the award of this Agreemem by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Covington and the ability of Covington to perform the professional services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. 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\R J Covington Consulting LLC-DME-Ord Aprv TO 4-D-2004.doc STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO DENTON MUNICIPAL ELECTRIC THIS AGREEMENT is made and entered into on the __ day of , 2004, by and between the City of Denton, Texas, a Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Texas 76201 ("CITY"); and R. J. COVINGTON CONSULTING, LLC, a Texas Limited Liability Corporation, with its principal office at 11044 Research Boulevard, Suite A-325, Austin, Texas 78759, hereafter "COVINGTON"; acting herein by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants, promises and agreements herein contained, the CITY and COVINGTON do hereby AGREE as follows: EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVINGTON, as an independent contraetor, and COVINGTON hereby agrees to perform the services herein in connection with the Scope of Services as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. AWl ICI,F~ II SCOPE OF SERVICES A. COVINGTON shall provide to the CITY professional consulting services pertaining to the participation of Denton Municipal Electric, a municipally-owned electric utility, in the Nodal Market Design of the Texas electric market. COVINGTON agrees to perform those services and tasks more particularly and specifically described in Task Order No. 04-D attached hereto and incorporated herewith by reference. B. To consult, with the City Manager, Assistant City Manager/Utilities, the Director of Electric Utilities, the Utility Attorney, and any other designated administrative personnel regarding any and all aspects of the services to be performed pursuant to this Agreement. PERIOD OF SERVICE This Agreement shall become effective on the date this Agreement is approved and upon the issuance of a notice to proceed by Denton Municipal Electric. The termination date of this Agreement shall be upon the earliest to occur of the following events: completion of the work described herein and in the attached Task Order No. 04-D; or upon the depletion and exhaustion of the $90,000 not to exceed amount provided for herein; or upon fifteen (15) day's written notice to EXHIBIT 2 terminate, issued by the Director of Electric Utilities, DME. This Agreement may be sooner terminated in accordance w/th the provisions hereof. Time is of the essence in this Agreement. COVINGTON shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its Director of Electric Utilities. AR Tla~ ~ rtz COIvlPENSATION A. COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense, overnight courier, photocopy expense, transportation, travel, Communications, subsistence and lodging away from home and similar incidental expenses reasonably incurred in connection with that assignment. B. BILLING AND PAYMENT: 1. For and in consideration of the professional services to be performed by COVINGTON herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct non-labor expense, not to exceed $90,000 for those services described in Task Order No. 04- D. 2. The fee for the services described in this Agreement to be performed by COVINGTON are to be billed the rates as set forth in Exhibit "A" attached hereto and incorporated herewith by reference. Billing shall be reported in minimum one-quarter (1/4) hour increments. 3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly statements rendered to the CITY through its Director of Electric Utilities. The fee bills as submitted, shall be allowed and approved by the Director of Electric Utilities. However, under no ckcumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. 4. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the City Manager or the Director of Electric Utilities, or which is not submitted in compliance with the terms of this Agreement. The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement. 5. It is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense or reimbursement above the maximum not-to-exceed fee as - stated, without first having obtained written authorization from the CITY. C. PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty (40) days after receipt of COVINGTON'S undisputed statement thereof, the amounts due COVINGTON will be increased by the rate of one percent (1%) per month fi.om the said forty (40th) day, and in addition, COVINGTON may,-after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until COVINGTON has been paid in full all amounts due for services, expenses and charges provided. However, nothing herein shall require the CITY to pay the late charge of one percent (1%) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such defect. ARTICI,F. V OBSERVATION AND REVIEW OF THE WORK COVINGTON will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any subconsultants performed hereunder. ARTICJ,lq. VI OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY. COVINGTON shall have the right to make and retain copies and use all Work Products; provided, however, the use shall be limited to the intended use for which the services and Work Products are provided under this Agreement. COVINGTON may use and may copyright certain non-sensitive Work Products as property of COVINGTON; provided that prior written approval is obtained fi.om CITY, whose approval shall not be unreasonably withheld, and providing that copywriting will not restrict CITY'S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement. The Work Products shall not be changed or used for purposes other than those set forth in this Agreement without the prior written approval of COVINGTON. If CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CITY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected With the release or any third party's use of the Work Products. AR_TIC? ,R VII INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY. COVINGTON shall not have or claim any right arising from employee status. ARTICT,F. VIII INDEMNITY AGREEMENT COVINGTON shall indemnify and save and 'hold harmless the CITY and its officers, agents, and employees from and against any and ali liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsultants, in performance of this Agreement. COVINGTON*S liability under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as set forth in Article IX. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICI,F. IX INSURANCE During the performance of the Services under this Agreement, COVINGTON 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 than $100,000 for each occurrence, and not less than $100,000 in the aggregate. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident; and with property damage limits of not less than $100,000 for each accident. C. Professional Liability Insurance with policy limits of not less than $1,000,000-annual , aggregate. COVINGTON 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 ail such Policies to the extent legally possible, 'and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days prior written notice to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of the change or cancellation, deliver substitute policies furnishing the same coverage to the CITY. ' A 1~ TIC'.T .1~, X ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties agree to settle any disputes under this Agreement by subrrdtting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. A'R TICI ,F. XI LIIVIITATION OF LIABILITY To the extent permitted by law, the total liability of COVINGTON to CITY for any and alt claims arising out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemrfity claims based On third-party claims, shall not exceed one million dollars ($1,00'0,000). ARTTCT,~ CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY 'for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any consequential, indirect or special damages. A R TICI ,F, XIII PROFESSIONAL STANDARDS COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services. No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed~ AR TI(21 .~ XIV TERlVl/NATION OF AOREElvIENT Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by giving thirty (30) days advance written notice of termination to the other-party. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given: (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not tess than ten (t 0) business days in which to cure the failure; and (2) an opportunity' for consultation with the terminating party prior to termination. If this Agreement is terminated prior to completion of the services to be provided hereunder, COVINGTON shall immediately cease all services and shall render a final bill for services to the CITY within 30 days after the date of termination. The CITY shall pay COVINGTON for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination in accordance with Article iV, Compensation. Should the CITY subsequently contract with a new consultant for the continuation of services on the Project, COVINGTON shall cooperate in providing information. COVINGTON shall mm over all documents prepared or furnished by COVINGTON pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any sub-consultants of COVINGTON, for the accuracy and competency of their designs or other work product. ARTICI .F. NOTICES All notices, communications, and rep0i'ts required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the address shown below, certified mail, return receipt requested unless otherwise specified herein. Mailed notices shall be sent to the parties at the following addresses: To COVINGTON: To CITY: R.J. Covington Consulting, LLC Atto: Richard J. Covington 11044 Research Blvd., Suite A-325 Austin, Texas 78759 City of Denton, Texas Attn: Michael A. Conduff, City Manager 215 East McKinney Street Denton, Texas 76201 Ali notices shall be deemed effective upon receipt by the party to whom such notice is given or within three days after the date ofmailing.~ ARTIt21.E X'VTT ENTIRE AGREEMENT This Agreement consisting of nine (9) pages, and five (5) additional pages consisting of Task Order No. 04-D, 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. ARTIC, I ,F, XVIII SEVERABILITY If any provision of tkis 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 party shall reform this Agreement to replace such stricken provision with a valid and enforceable provision wkich comes as close as possible to expressing the intention of the stricken provision. ARTIC. I.E COMPLIANCE WITH LAWS COVINGTON shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTIC, I ,F, XX DISCRIMINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. PERSONNEL COVINGTON represents that he has secured, or will secure at his own expense any additional personnel required to perform all the services required under this Agreement. Such personnel shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. All services required hereunder will be performed by COVINGTON or under his supervision. All personnel engaged in work shall be qualified and shall be authoriZed and permitted under state and local Iaws to perform such services. ARTICI.R X-'X7 l ASSIGNABILITY COVINGTON shall not assign any interest in this Agreement and shall not transfer any imerest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY. ARTICI'.R XXIII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, 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, duly executed; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. A R TTCI ,R X'XIV MISCELLANEOUS Ao· COVINGTON agrees that CITY shalI, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of COVINGTON involving transactions relating to this Agreement. COVINGTON agrees that the CITY shall have access during normal working hours to all necessary COVINGTON facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. The CITY shall give COVINGTON reasonable advance notice of any intended audits. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement. shall be governed by, and construed in accordance with the laws of the State of Texas. COVINGTON shall commence, carry on, and complete the work required by this engagement with all applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the CITY. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by this engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as reqUired for COVINGTON to perform services under this Agreement. The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF,-the City of Denton, Texas has caused this Agreement'to be executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covington Consulting, LLC has executed this Agreement by its duly authorized officer on this the __ day of ~ 2004. "CITY" CITY OF DENTON, TEXAS A Municipal Corporation By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: "COVINGTON" R.J. COVINGTON CONSULTING, LLC A Texas Limited Liability Corporation By: Richard J. Covi~on, Prgs nt S:\Our Documcms\Contracts\04L-qf Covington Consulting LLC-PSA-TO 04-D 2004-Nodal Market Desiga-DME.doo ATTACHMENT PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND R.J. COVINGTON CONSULTING, LLC TASK ORDER NO. 04-D Nodal Market Design Work provided for in' this Task Order is directed at continuing assistance to Denton Municipal Electric staff (Staff) in addressing issues associated with the Texas Nodal Team (TNT) process to implement a nodal market redeSign in the Texas electric market. Because the nodal market design, with its Locational Marginal Price (LMP) settlement, can shift significant costs to the Dallas/Ft. Worth area (DFW), this process is of particular importance to the City of Denton, Denton Municipal Electric (DME), and DME's ratepayers. In continuing to work with Staff on this project, R. J. Covington Consulting, LLC (RJC) will assist in representing DME at the Public Utility Commission of Texas (PUC) and at the Electric Reliability Council of Texas (ERCOT) to develop and present the City's position on the proposed nodal market design. The scope of services includes continuing participation at the PUC in Project 26736 and participation at ERCOT on TNT committees and task forces developing rules for implementing the nodal system. RJC will also assist in developing materials for lobbying the Legislature to explain the impact on DME and the Dallas/Ft. Worth (D/FW) area of implementing a nodal market design. RJC has developed positions for DME to mitigate the impact on DME ratepayers (Market Transition Proposal) and will continue to push for including these positions in the nodal market design. RJC is also leading the TNT Cost/Benefit Concept Group to maintain an ongoing balance in the development of the study and reduce the bias that certain pro- nodal parties promote. RJC will'continue in this role as Chair of the Cost Benefit Concept Group. All work on this Task Order will be at the direction of the Director of Electric Utilities. Background The PUC, in publishing Substantive Rule 25.50t, stated its intent that ERCOT would implement a nodal system that would include LMP in ERCOT. LMP and the associated market changes will charge loads in congested areas of the state the costs of clearing that congestion. Currently those costs are uplifted to alt loads in the state. Because the D/FW area has some of the highest level of transmission congestion in the state, this change could have a substantial negative impact on ratepayers in the D/FW area and other congested areas of the state, RJC has been actively working with other stakeholders and with PUC Staff and Commissioners to inform parties of the potential significant negative'impacts on the Task Order 04-D Nodal Market Design D/FW economy and on DME. Currently, RJC has developed a proposal that could significantly mitigate the impact on congested areas such as D/FW. RJC is actively working to gain support for this proposal from other market participants. This proposal will form the basis for positions at the PUC, the legislature, and the courts, as necessary. At the same time, RJC continues to work towards a fair cost benefit study that could give the PUC the reasons why moving to a nodal market may not in the best interest of the state. RJC has been providing education to attorneys, lobbyists and others that will support DME's efforts to prevent or mitigate the impact on D/FW consumers. To date, RJC has made significant headway in both of these efforts, gaining good support from market participants and the PUC. The schedule for implementing a nodal market design extends through 2006. The next immediate phases include: TNT sessions with major economists hired by the PUC and ERCOT to discuss the TNT nodal market design from Round 1 of the protocols Round 2 of the protocols to incorporate changes from Round 1 based on input from the PUC and the economists · Filing of the cost benefit study (now scheduled for December timeframe) · Filing of the protocols (now scheduled for March 2005 timeframe) Hearings at the PUC to discuss and approve the final protocols or have a decision to not proceed or delay the nodal market RJC will focus on the Transition Proposal and the Cost Benefit Concept Group. RJC will work with DME and Garland Power & Light staff as appropriate to cover Round 2 of the protocol review and subsequent hearings and workshops at the PUC. Because the schedule for implementing a nodal market design extends through 2006, additional work orders may be required to complete this work. RJC will keep the Director of Electric Utilities informed of the status of the budget and work may be stopped at any time by notification by the Director of Electric Utilities to RJC to cease work. Scope of Services Task A PUC Activities Task A-1 Attending Workshops and Hearings at PUC 1. RJC will stay informed on activities related to Project 26736 at the PUC and will attend workshops and hearings as needed. 2 of 5 Task Order 04-D Nodal Market Design 2. When appropriate, RJC will participate in workshops and hearings to represent interests of DME based on directions of Staff. 3. RJC will work with Staff in developing positions that should be taken and strategies for working with parties involved. 4. RJC will prepare or assist in preparing comments to be filed with the PUC representing DME's positions on proposed rules, projects and dockets related to nodal market design. Task A-2 1. Meetings with PUC Staff RJC will meet with PUC staff and other parties as appropriate to discuss the proposed Market Transition Proposal, issues related to the cost benefit study, and present DME's concerns regarding the impact of PUC Substantive Rule 25.501 on D/FW area ratepayers. As the nodal market protocols are developed, RJC will continue to analyze the potential impacts of the various components of the changes to the market. RJC will meet with Commissioners and their aides as appropriate in order to educate them on the concerns of DME. Task B Assistance with ERCOT Task B-1 Attend TNT Committee and Cost Benefit Concept Group Meetings 1. RJC will stay informed on activities at the ERCOT Independent System Operator (ISO) and will attend meetings as directed by Staff that are related to implementing the nodal market design. 2. RJC will participate in TNT and Cost Benefit Concept Group meetings to represent the interests of DME and to promote the Market Transition Proposal and the Cost Benefit Study. 3. RJC will work with Staff in developing positions that should be taken and strategies for working with other ERCOT stakeholders. Task B-2 Analyze proposed Policies and Protocols 1. RJC will review the new market design protocols proposed by the ISO and identify concerns. 2. RJC will meet with ERCOT staff and other stakeholders to discuss proposed market design issues and negotiate to mitigate the impact on D/FW loads. Task C Working with Other Affected Parties Task C-1 1. Coordination with Other Market Participates RJC will continue to work with Other affected, municipalities, organizations, cooperatives, and associations where appropriate to promote the Market Transition Proposal and to otherwise mitigate the impacts of the nodal market on certain areas of the state. 3of5 Task Order 04-D Nodal Market Design 2. RJC will participate in meetings with other market participates to discuss strategy and positions. 3. RJC will coordinate with other parties, mayors and attorneys to communicate concerns to the PUC and Legislature. 4. RJC will continue to develop issues papers and statistics to assist in educating legislators, media and other market participates on the current market design and proposed changes. Task C-2 Work with Lobbyists and Publicists RJC will work with the City's lobbyists to educate legislators on the issues. RJC will work with the City's communication director and other spokespersons to inform the public of the impact on them of the Commission's push to a nodal market design. Budget The not-to-exceed amount for the above scope of services for both labor and out-of- pocket expenses is $90,000. This amount will not be exceeded with prior written approval of the City of Denton, Texas. Because of the uncertainty regarding the level of activity required, this budget is a good faith estimate. Additional Task Orders may be required to complete this work. RJC will bill this Task Order monthly, with supporting documentation of activities performed. The termination date of this Task Order shall be on the earliest to occur of the following events: the date of completion of the work described herein; or upon the depletion and exhaustion of the not-to-exceed amount provided for herein; or upon fifteen (15) days written notice to terminate issued by the Director of Electric Utilities, DME. The work being performed will be under the supervision of the Director of Electric Utilities, and may be modified at any time upon appropriate notice to RJC. EXECUTED this the __day of ,2004. AUTHORIZED BY: CITY OF DENTON, TEXAS A Texas Municipal Corporation By: Dated: ACCEPTED BY: R.J. COVINGTON CONSULTING, LLC 4of5 Task Order 04-D Nodal Market Design ATTEST: APPROVED AS 'TO LEGAL FORM: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY By: By:/~~'~. S:\Our Documents\Contracts\04~RJC TO 04-D 2004-Nodal Market Design. doe 5 of 5 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 October 11, 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, October 11, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of DeNon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Dick Smith, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities The Public Utilities Board convened its Open Session at 9:00 a.m. The Chair, Charldean Newell, stated to the Board that there were three Closed Meeting agenda items that were set forth in the Closed Meeting agenda and requested a motion to consider all agenda items under §551.086 §551.071 of the Texas Governmem Code - Deliberations Regarding Certain Public Power Utilities Competitive Matters and §551.071 of the Texas Government Code - Consultation With Attorney. A motion was then made and seconded respecting the consideration of three items by the Board. The Board then voted 6-0 (Baines late) to move imo Closed Session to consider both items, and thereafter convened its Closed Session at 9:01 a.m. mo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS ---UNDER TEX. GOV'T. CODE §551.086. 1. Receive information from one of the City's Texas Municipal Power Agency ("TMPA") Board Members and/or from City Staff pertaining to certain competitive electric matters regarding present and future maintenance issues, financial issues, operational issues, reliability issues, possible litigation involving the agency, any pending legal matters, together with any related strategies or issues concerning the City's imerest in, and its business relationship with TMPA; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. 2. Receive competitive electric information, including financial information from Staff pertaining to DeNon Municipal Electric ("DME") electric service rate issues and strategies, including without limitation, the first quarter Energy Cost Adjustmem ("ECA") rate and other related matters; and discuss, deliberate, consider, determine policy, and provide Staff with direction regarding such matters. Bo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS --- UNDER TEXAS GOVERNMENT CODE Page 1 of 2 EXHIBIT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 §551.086. CONSULTATION WITH ATTORNEYS --- UNDER TEXAS GOVERNMENT CODE §551.071. 1. Receive competitive public power information and documentation from Staff regarding the Second Supplement to Transition Power Agreement, proposed to be executed by the City of Denton, Texas and the Seller thereof, to reflect certain market changes that have occurred since closing of the Transition Power Agreement; the status of other public power operational matters; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. Further, discuss and consider the legal ramifications and effect regarding execution of the Second Supplement to Transition Power Agreement. Discuss other legal issues concerning and related to this matter with the City's attorneys, where to discuss these matters in public would conflict with the duty of the City's attorneys to the Public Utilities Board under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. The Closed Session was completed at 9:27 a.m. The Public Utilities Board reconvened in Open Session at 9:28 a.m. The meeting was called to order to consider the following business: CONSENT AGENDA: 1) Consider approval of Task Order 04-C with R. J. Covington Consulting, LLC for general regulatory project support in workshops, investigations, and other proceedings at the Texas Public Utility Commission. 2) Consider approval of Task Order 04-D with R. J. Covington Consulting, LLC for continued support in the ongoing Texas Public Utility Commission (TPUC)/Electric Reliability Council of Texas (ERCOT) electric wholesale market design project. Board Member Phil Gallivan moved to approve Consent Agenda Items #1 & #2, with a second from Board Member Bob Bland. The motion was approved by a vote of 7-0. Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: October 19, 2004 Tax Kathy DuBose SUBJECT Consider approval of tax refunds for the following property taxes: Tax Name Reason Year Amount ~ ~r~in ~upP~nt~ ~lu~ ~0~ ha 2. Price Westwind DCAD 2003 8011.19 BACKGROUND Chapter 31.11 of the Texas Property Tax Code requires the approval of the governing body of the taxing unit for refunds in excess of $500.00. FISCAL INFORMATION The tax overpayment revenue fund would be reduced by $11,773.62. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 19, 2004 Police Jon Fortune, Assistam City Manager SUBJECT Hold a public hearing inviting citizens to comment on the proposed usage of the 2004 Local Law Enforcement Block Grant funding. BACKGROUND The Police Department received approval of the FY 2004 Local Law Enforcement Block Gram from the Federal Office of Justice Programs in the amoum of $11,136 with a required local match of $1237. Prior to the actual receipt of the funds, the Department must hold a public hearing regarding the proposed use of the funds. Additionally, an advisory board that includes represematives of groups with a recognized imerest in criminal justice and crime or substance abuse prevention and treatment must be established to review the application and make a non-binding recommendation for the use of funds. The Board must include representatives from the local law enforcement agency, local prosecutors office, local court system, local public school system, and a local nonprofit group active in crime prevention or drug use prevention or treatment. Funding can be used for the following purposes related to law enforcemem: (1) hiring and training of officers or support personnel; (2) overtime pay of officers and support personnel for a programmatic purpose; (3) equipmem, technology, and other material directly related to basic law enforcement functions; (4) enhancing security measures in and around locations considered a special risk for incidems of crime; (5) establish multi-jurisdictional task forces; (6) establishing crime prevemion programs; (7) defraying the cost of indemnification insurance for law enforcemem officers. At this time, the Department intends to use the funding for the purchase of equipment, falling in categories (3) and (4), including using a portion of the funds for state of the art surveillance cameras, monitors, and security systems for the purpose of criminal investigation and physical security at remote locations such as businesses, apartmem complexes and schools. PRIOR ACTION/REVIEW The required local match is included in the proposed FY 2004-05 budget. At the time this report was submitted, the Advisory Board had not met. FISCAL IMPACT The funding for this program is as follows: Federal Contribution City Contribution $11,136 1237 Total $12,373 Prepared by: Lee Howell Captain Support Services Division Respectfully submitted, Charles Wiley Chief of Police AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 19, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z04-0034 (Jamart Estates) Hold a public hearing and consider adoption of an ordinance rezoning 3.96 acres from a Neighborhood Residemial 2 (NR-2) zoning district to a Neighborhood Residemial 4 (NR-4) zoning district. The property is generally located on the east side of Locust Street, approximately 400 feet south of Windsor Street. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicam: Biofix Holdings, Inc. DeNon, TX The applicam is requesting the zoning change in order to subdivide the property for residemial uses. Based on the currem Neighborhood Residemial 2 (NR-2) zoning district, 2 dwelling units are allowed per acre for single-family uses. The applicam is proposing to rezone approximately 3.96 acres from NR-2 to a Neighborhood Residemial 4 (NR-4) zoning designation. The NR-4 zoning district would allow the applicam to subdivide the property imo a maximum of 15 single- family lots. Staff held a predesign meeting with the applicant's representative on July 14, 2004. During the meeting, staff recommended the applicant pursue a zoning density compatible with the surrounding areas. Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has received one written response in favor and one written response neutral to the request to rezone the property from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology ofZ04-0034: Ordinance 2002-040, adopted February 2002 placed the subject property in the Neighborhood Residential-2 (NR-2) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Agricultural. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photo 5. September 22, 2004 Planning & Zoning Commission Meeting 6. Draft Ordinance Prepared by: Chris Fuller Planner II 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 3.96 acres from a Neighborhood Residential 2 (NR-2) zoning district to a Neighborhood Residential 4 (NR-4) zoning district. Single-family residential uses are proposed. Existing Condition of Property The subject property is vacant and is not in a flood plain. Adjacent Zoning North: Neighborhood Residential Mixed Use 12 (NRMU-12) zoning district South: Neighborhood Residential 2 (NR-2) zoning district East: Neighborhood Residential 2 (NR-2) zoning district West: Neighborhood Residential 2 (NR-2) zoning district The North Branch Library is located adjacent to the northern boundary of the subject property. Strickland Middle School is located to the east of the subject site. The properties to the south and west are developed as single-family residential uses along Locust Street. Comprehensive Plan Analysis The subject site is located in an "Existing Land Use" 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 request to rezone the subject property is compatible with the Future Land Use Plan (Existing Land Use) and with the surrounding zoning designations. The proposed zoning change is in compliance with the Denton Plan. Development Review Analysis Transportation 15 single-family lots would generate Analysis will not be required. less than 150 trips per day, therefore a Traffic Impact Access and Connectivity The property will be accessed by Locust Street. Public Infrastructure The preliminary plat will address how the property will provide water and sewer services. Development Code / Zoning Analysis The subject property was zoned Agricultural prior to the adoption of the Development Code. The Agricultural zoning designation was typically considered a "holding" zoning category with the understanding that a higher intensity may be appropriate when the property was developed. Determining the appropriate zoning designation at the time when development is prone to occur allows for a more detailed analysis of the current development trends. Adjacent property owners realize that adjacent Agricultural property would be rezoned at a later date and based their opposition or approval on the proposed zoning category. Property that was zoned Agricultural and in the Neighborhood Centers land Use Category was typically rezoned to NR-2. Based on recent zoning cases, it appears that adjacent property owners now view a request to up-zone NR- 2 zoned property as an increase in intensity as opposed to the "first" zoning of the property. The Neighborhood Residential 2 zoning district allows a maximum density of 2 dwelling units per acre. The Neighborhood Residential 4 zoning district allows a maximum density of 4 dwelling units per acre, which are permitted in the form of detached and duplex units. The chart below illustrates the difference between the zoning districts. Limitations for each use are explained below the chart. Single Family Dwellings P P P SUP SUP SUP Accessory Dwelling Units L(1) L(1) L(1) Attached Single Family Dwellings N SUP SUP Live/VVork Units N N N Duplexes N N L(3) Community Homes For the P P P Disabled Group Homes N N N Multi-Family Dwellings N N N Manufactured Housing SUP N N Developments Maximum density, dwelling units 2 3.5 4 per acre Maximum lot coverage 30% 50% 60% Minimum landscaped area 70% 55% 40% Maximum building height 40 feet 40 feet 40 feet Limitations: L(1): Accessory dwelling units are permitted, subject to the following additional criteria: 1. The proposal must conform to 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 residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000sq. ft. GHFA. 4. One additional parking space shall be provided that conforms to the off-street parking provisions of this Chapter. L(3): In part of a subdivision of 2 acres or more, up to 2 units may be attached by a common wall if the lots which contain the attached structures do not abut the perimeter lot lines of a subdivision, the individual common wall units are on separate lots designed to be sold individually, and they comply with the Subchapter 13. Additionally, units must have the appearance of a single-family residence from the street. The limitations listed above regulate the specifics of each use allowed within the zoning district. General regulations of the Residential Neighborhood land use zone are contained in the tables below. The following limits apply to subdivision of 2 acres or less: Minimum lot area (square feet) 16,000 7,000 Minimum lot width 80 feet 50 feet Minimum lot depth 100 feet 80 feet 20 feet Minimum front yard setback 20 feet L(2) Minimum side yard 6 feet 6 feet Minimum side yard adjacent to a 10 feet 10 feet street Minimum rear yard 10 feet 10 feet The following limits apply to subdivision of more than 2 acres in lieu of minimum lot size and dimension requirements: Maximum density, dwelling units per acre Minimum side yard for non- attached buildings 2 4 10 feet 5 feet The following limits apply to all buildings: Maximum lot coverage 30% 60% Minimum landscaped area 70% 40% Maximum building height 40 feet 40 feet 10 feet 10 feet plus 1 foot for plus 1 foot for each each foot Minimum yard when abutting a of foot of single-family use or district building building height height above 20 above 20 feet feet Any proposed development on this site is required to be in compliance with the site design standards of the Development Code. An approved site plan for the proposed development will be required prior to the issuance of any building permit. Staff Findings · The proposed zoning change is compatible with surrounding zoning designations; · The proposed zoning change is compatible with the Future Land Use Plan; · The proposed zoning change is 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 NR-2 NR-2 Location/Zoning Map WINDSOR NR-2 NORTH Land Use Map Existtng Land Use WINDSOR Ex~stmg Land Use ATTACHMENT 3 Notification Map NORTH Limits of 500' Notification In Favo of 200'-- otification Scale: None Public Notification Date: September 8, 2004 200' Legal Notices* sent via Certified Mail: 3 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 1 · Neutral: 1 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Site Photo 1 2 4 5 6 7 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 5 6 7 8 9 10 11 12 13 14 15 16 17 lg ~9 20 21 22 23 24 CondenseltTM Page 77 COMMISSIONER STRANGE: Our next i~n is Item D, rezoning of approximately 3.96 acres from Neighborhood Residential Two Zoning District to a Neighborhood Residential Four Zoning District. The property is generally located on the east side of Locust Street approximately 400 feet south of Windsor Street. Staff have a presentation? I will open this as a public hearing. MR. FULLER: Thank you. Thc applicant is requesting to rezone approximately 3.96 acres from the NR-2 Zoning District to the NR-4 Zoning District. Currently, the NR-2 District allows two dwelling units per acre. The NR-4 will allow four dwelling units per acre in the form of single family and attached -- single family detached and duplex. The applicant is proposing a maximum of 15 single family lots. Staff mailed three legal notices to property owners. There's a mistake in your backup. There were no property owners in opposition. There were, however, one property owner in favor and one property owner neutral to the request. Staff is reco~mnendlng approval of the request. Thank you. COMMISSIONER STRANGE: IS the applicant here and does tile applicant wish m speak? Page 78 MR. FULLER: YeS, he is. COMMISSIONER STRANGE: Thank you. Please come forward and give us your name and address, please. MR. WILKINSON: Thank you. Roger Wilkinson, 2201 North Lake Trail, Benton 76201. I'd like to ttmnk the Connnission for two weeks ago on the variance that they made a recommendation to the City Council for the turn lane variance. I appreciate that very much. Like Mr. Fuller said, we're proposing to take approximately 3.6 acres and divide it into residential lots. And currently there are time existing houses, framed houses that were constructed a nmuber of years ago and two of them have been remodeled and one of them will be removed upon achieving the zoning and the platting of the property. The -- how do you turn on this camera over here? COMMISSIONER STRANGE: someone from staff please turn the camera on. MR. WILKINSON: This is the concept that we came out with. There's three houses, two are here that have been remodeled. And this house here is pretty bad shape. So ifs going to be removed. And it will be rex[eveloped. We're proposing on houses with approximately 1,500 square feet as a minimum. And these are something that will be comparable to what they're proposing, 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 79 something like this, something like this is what the owner is proposing on that. The -- I met with all of the property owners, private propm-ty owners adjacent to the property and within 200 feet of the property and none of them were, like t said, adverse to the proposed zoning. Some of th~n were in favor of it. The -- the hbrary to the north is hem. And the school is here and there's two houses, two old framed houses here also that have been there a number of years and apartments~ a church, and more apartments down in this area. We feet that this would be a good addition to the area. And we just would like your consideration in this zoning. And if you have any questions, I'd be glad to answer those. COMMISSIONER STRANGE: DOeS anyone have any questions of the applicant? Thank you, Mr. Wilkinson. MR. WILKINSON: Thank you. COMMISSIONER STRANGE: okay. We have no other cards that were submitted and I had mentioned earlier in the meeting that if you wish to speak, you would have to fill out a card. So there being no o~er cards, there will be no other speakers. And so we will close the public hearing. Mr. Roy. COMMISSIONER ROY: Question for staff, please. We've been asked about a variance on a traffic issue. Now, we're asked for rezoning. What's coming next Page 80 on this site? Arc there -- do you know of other things we're going to be asked to change and approve on this site? MR. PULLER: Presuming you approve the zoning request before you now, you will be approving a preliminary and final plat aa the Consent Agenda. COMMISSIONER ROY: And these plats, as far as you know are going to be in accordance with tile Development Code? MR. FULLER: AS far as we know at tlfis point. COMMISSIONER ROY: Thank you. COMMISSIONER STRANGE: Anyone else wish to have any discussion on this? Do we have a motion? Mrs. HeR. COMMISSIONER HOLT: I move approval. COMMISSIONER ROY: second. COMMISSIONER STRANGE: okay. We have a motion by Mrs. Hok, a second by Mr. Roy. Please, vote. Motion passes 7-0. [25 'LANNING AND ZONING MINUTES SEPTEMBER 22, 2004 Page 77 - Page 80 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 2 (NR-2) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL 4 (NR-4) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 3.96 ACRES OF LAND LOCATED ON THE EAST SIDE OF LOCUST STREET, APPROXIMATELY 400 FEET SOUTH OF WINDSOR STREET IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE M_4XIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z04-0034) WHEREAS, Biofix Holdings, Inc. has applied for a change in zoning for approximately 3.96 acres of land located on the east side of Locust Street, approximately 400 feet south of Windsor Street and more particularly described in Exhibit "A" attached hereto and made a part hereof as Exhibit "A" (the "Property") from Neighborhood Residential 2 (NR-2) zomng district classification and use designation to Neighborhood Residential 4 (NR-4) zoning district classification and use designation; and WHEREAS, on September 22, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, the City Council f'mds 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 Neighborhood Residential 2 (NR-2) zoning district classification and use designation to Neighborhood Residential 4 (N-R-4) 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 invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Demon, Texas, within ten (10) days o f the date of its passage. PASSED AND APPROVED this the day of ,2004. .EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~ PAGE 2 EXHIBIT'A'. 3.96 ACRES 3000 N. LOCUST ST. Being all that certain tract or parcel of land situated in the B. BB. & C.R.R. Co. Survey, Abstract Number t86 of Denton County, Texas and being all of a tract of land described in a deed from Eva M. Blagg to Peggy J. Grann, Richard E. Blagg and Danny M. Blagg as recorded in Volume 5096, Page 573, of the Real Property Records of Denton County, Texas, and being all of a tract of land described in a deed from E. G. Gasperson and wife, inez Gaspemon to Eugene Btagg and wife Eva Blagg as recorded in Volume 330, Page 156 of the Deed Records of Denton County, Texas, and being more particularly described as follows; BEGINNING at a PK nail found in the top of a wood R.O.W. monument at the Southwest comer of Lot I Block I of Food Lion T-2 Addition an Addition to the City of Denton, Denton County, Texas and being in the East R.O.W. line of North Locust Street; THENCE South 89 Degrees 18 Minutes 35 Seconds East with the South line of said Addition, a distance of 432.09 feet to a 5/8" iron rod found for the Southeast corner thereof and the Northeast comer of the herein described tract said iron being in the West line of a tract of land described in a deed from J. Newton Rayzor to Denton Independent School District as recorded in Volume 535, Page 212 of the Deed Records of Denton County, Texas; THENCE South 00 Degrees 50 Minutes 44 Seconds West, with the East line of said School tract a distance of 360.38 feet to a 4" metal fence comer post for the occupied and recognized Southeast comer of the herein descried tract; THENCE North 89 Degrees 24 Minutes 08 Seconds West along or near a fence same being the occupied and recognized South line of said Volume 5096, Page 573 and the North line of a tract of land described in a deed from C.H. Enlow and wife, Velma Eniow and J. Frank Solemon and wife, Lanie Soiemon to Judd Daniel Cockretl and wife, Mildred May Cockrell as recorded in Volume 343, Page 432 of the Deed Records of Denton County, Texas, a distance of 479.34 feet to a point in the center of Locust Street, the Southwest comer of the herein described tract;, THENCE North 01 Degrees 12 Minutes 06 Se~xtds East with said conterline a distance of 361.17 feet to a point fOr comer, said point being the northwest corner of the herein des=ibed tract THENCE South 89 Degrees 18 Minutes 35 Seconds East, a distance of 45.00 feet to the POINT OF BEGINNING and containing 3.96 acres of land more or less. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: October 19, 2004 Planning and Development Jon Fortune, Assistant City Manager SUBJECT: SI03-0012 (Tree Preservation) Continue 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: City Council continued the September 21, 2004 public hearing to allow the City Council Sub- committee on Tree Preservation time to meet one more time to review changes to the regulations and address outstanding issues. The Sub-committee met on October 6, 2004. At that meeting comments that were received, at the public hearing, by email and by citizens in attendance at the sub-committee meeting were addressed by the sub-committee. Revisions to the regulations include: 1. Adding Christmas tree farms as an exemption. 2. Requiring a permit for the removal of five or more trees on a single-family lot. 3. Added clarification "by an applicant" to identify who is responsible for providing data. 4. Added clarification and consistency by identifying the Director of Planning ("Director") as the person responsible. 5. Added "creating a contiguous drip line" to the definition of Quality and Secondary Tree Stand. 6. Changed Tree Bank to Tree Trust. 7. Clarified the size of a simplified survey for large tree stands. 8. Removed Yaupon Holly and Crape Myrtle from the Tree Mitigation Replacement Table. In addition to those revisions some general clean-up and grammar revisions were also made. 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, 11,18 & 25, 2004 City March 10, 2004 City April 5, 2004 City May 18, 2004 City July 1, 2004 City August 3, 2004 City September 21, 2004 City October 6, 2004 City Planning and Zoning Commission work session. Planning and Zoning Commission public hearing City Council work session. Council public hearing Council Tree Preservation Sub-committee meeting Council Tree Preservation Sub-committee meeting Council Tree Preservation Sub-committee meeting Council Tree Preservation Sub-committee meeting Council work session Council Tree Preservation Sub-committee meeting Council work session Council public hearing (continued to October 19, 2004) Council Tree Preservation Sub-committee meeting 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 Prepared by: j,,, ~l~arry R~~~:: :; · Assistant Director of Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development 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 17 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 17 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 17 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. B. 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. 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. C. 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. DRAFT TREE PRESERVATION ORDINANCE Page 4 of 17 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 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. 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. DRAFT TREE PRESERVATION ORDINANCE Page 5 of 17 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 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 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 6 of 17 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 7 of 17 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 8 of 17 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 9 of 17 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 10 of 17 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 11 of 17 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 12 of 17 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 13 of 17 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. 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' DRAFT TREE PRESERVATION ORDINANCE Page 14 of 17 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 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 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 %) feet above existing ground level. 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 DRAFT TREE PRESERVATION ORDINANCE Page 15 of 17 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 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. 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. E. 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. DRAFT TREE PRESERVATION ORDINANCE Page 16 of 17 July, 2004 DRAFT TREE PRESERVATION ORDINANCE 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 17 of 17 July, 2004 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 18~8 Page 1 of October, 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, including Christmas Tree farms, 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,_--ot'-dead, creating a public nuisance or damaging a foundation by a qualified professional_.,,, ...... ,,.,,,,~,~; ..... a ~,,,~,~.,,~'~; .... ~,,~o,~.,,,,; ..... 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. DRAFT TREE PRESERVATION ORDINANCE Page 2 of 1_~_8~8 October, 2004 DRAFT TREE PRESERVATION ORDINANCE C. No heavy 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 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. F. A permit is required for the removal of five or more trees on a single-family lot. 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 October, 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 by an applicant verifying the presence of Mesquite, Bois Arc, Locust Hackberry and/or Cottonwood species. B. 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. 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 C. 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 by an applicant identifying Secondary Trees. Quality Tree Stand Three or more contiguous Quality Trees whose canopies are generally clustered together creating a contiguous drip line. All Tree Stands shall be considered Quality Tree Stands unless a detailed tree inventory is submitted by an applicant identifying the tree stand as aa 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, LocustL 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 creating a contiguous drip line. An Secondary tree stand must consist of a minimum eighty (80) percent of Secondary tree species. DRAFT TREE PRESERVATION ORDINANCE Page 4 of 1_~_848 October, 2004 DRAFT TREE PRESERVATION ORDINANCE Preservation The following shall apply unless an application for relief is filed and approved under Subsection 35.3.11. A. B. Co Any tree designated as a Historic Tree shall be preserved. Any tree designated as a Protected Tree or a Large Secondary Tree shall be preserved unless mitigated under the requirements of Subsection 7. 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_~_848 October, 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. 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 Secondary Tree, Secondary Tree Stand and/or Historic Tree required to be preserved under this Subsection. The notation shall limit any future unauthorized land disturbing activity or construction that would impact and/or damage the tree(s) to be preserved or protecte 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 1_~_8t8 October, 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 ~ Bap&Tree Trust. See Subsection 7.F. DRAFT TREE PRESERVATION ORDINANCE Page 7 of 1_~_8~8 October, 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 1_~_8~8 October, 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 developmentsbuitdings, prior to final approval of a Gas Well Development Plat and prior to filing a Final Plat in the Denton County Clerks Office,vv..,~,,.,,..o*'*'~;"o*;"" for all Single-family Residential and ~er r'~,-..,~s;~derd, ial Subdivisions as. may be 4. Voluntary contributions for tree preservation shall be placed in the Tree Fund. F. T,,~,~ l:~o,~l~Troo Trusts 1. Areas of a minimum of one acre that have the characteristics of Cross Timber Forests are eligible to be classified as a Tree Bap&Tree Trust. 2. Designation of a ~Tree Trust and transfer of tree credits shall be approved by the DRC Chairman. 3. ~Tree Trusts 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 Bap&Tree Trust 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 T~'ee Bavd~Tree Trust. G. Areas that are un-developable, including but not limited to undeveloped floodplain, wetlands and riparian areas, shall not be designated as T~ BankTree Trusts. DRAFT TREE PRESERVATION ORDINANCE Page 9 of 1_~_8t8 October, 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 1848 October, 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 October, 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 October, 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 by an applicant within a specified 100 foo~by%001,000 square 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 October, 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 October, 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 (Original Table replaced with J. Cooper's Table) DRAFT TREE PRESERVATION ORDINANCE Page 15 of 1848 October, 2004 DRAFT TREE PRESERVATION ORDINANCE Tree Mitigation Replacement Table Mature Mature Common Name Botanical Name Height Spread Pecan Carya illinoensis 70' 70' White ash Fraximts americana 70' 60' Shumard red oak Qtterctts shttmardii 70' 50' American elm Ulmtts americana 70' 70' Bur oak Qtterctts macrocarpa 60' 60' Bald cypress Taxodittm distichttm 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' 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 18t8 October, 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 October, 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 October, 2004 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~' Mexican plum Pranas mexicana 20~' 20~' Eve's necklace Sophora a~ffinis 20' i5' 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 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 shah include necessan' notes and details to ensure the viabHiU- of aH trees req~red to be presen, ed including their roots, during construction. The folloxving items must be included for a Tree Protecfion/Presen,ation Plan to be considered ~o--~-complete: 1. Tree flagging: ~1 e~sfing trees chosen by the properU- oxvner to be presen, ed for credit xviH be flagged by the site supenqsor xvith brightly colored tape xvrapped around the main trunk at appro~mately 4.5 ft. above ~ade. 2. Protective fencing: ~1 presen,ed trees for credit to remain on site xvH1 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 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 revie~v and are generally ~vhat is needed to facilitate the revie~v of the tree inventor5, plan. Under special circumstances, additional items may be required through the Development Revie~v Committee process prior to approval. [] Dra~vn 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 Revie~v Committee Chair). [] Dra~vn to an engineer scale not smaller than 1" = 60' (smaller of larger scale may be accepted only if approved by Development Revie~v Committee Chair). [] Submitted ~vith a total of three (3) copies individually) folded set ~vith name of project in lo~ver right corner. [] The date, ~vritten and graphic scale, north arro~v, proposed name of the development. Unless part of another application (prdiminary or final plat) a key map sho~ving 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, o~vner or o~vners, 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 by an applicant xvithin a specified 1,000 square foot area. The study area sha~ be a representative sample of the entire tree stand and must be approved by the CiU, prior to performing the suwey. The suwey sha~ include the size, species and health of a~ e~sting trees xvitNn the area. The resets of the suwey xv~l be applied to the total area of the tree stand to determine 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 ~vhat does exist on the property ma), be submitted in lieu of a survey. Page i of i Form Updated: 9/2004 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 revie~v and are generally ~vhat is needed to facilitate the revie~v of the tree inventory plan. Under special circumstances, additional items may be required through the Development Revie~v 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 sho~v the follo~ving: [] Dra~vn 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 Revie~v Committee Chair). [] Dra~vn to an engineer scale not smaller than 1" = 60' (smaller of larger scale may be accepted only if approved by Development Revie~v Committee Chair). [] Submitted ~vith a total of three (3) copies individually) folded set ~vith name of project in lo~ver right corner. [] The date, ~vritten and graphic scale, north arro~v, proposed name of the development. Unless part of another application (prdiminary or final plat) a key map sho~ving the location of the development in relation to existing streets and high~vays and dates of preparation and revisions. [] The name and address of the properUT o~vner or o~vners, 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. [] ProperUT 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 species type. [] Aerial photography may be utilized to determine canopy coverage. [] If preservation requirements ~vJll 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 ~vith tree protection requirements during construction [] The location of any and all permanent conservation easements, restrictive covenants, or other such legal mechanism to allo~v 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 AGENDA INFORMATION SHEET AGENDA DATE: October 19, 2004 DEPARTMENT: Wastewater Utilities ACM: Howard Martin, Utilities 349-8232 SUBJECT Consider approval of an ordinance of the City Council of the City of Demon, Texas, authorizing the City Manager, as Denton's duly authorized representative, to accept a water quality grant from the United States Environmental Protection Agency ("USEPA"); authorizing the City Manager to act on behalf of the City of Demon in all matters related to the grant, including funding the City's cost share of the grant; and pledging that the City of Demon will comply in all material respects with the project requiremems of the gram (demonstrating the impacts of oil and gas exploration on water quality and how to minimize these impacts through targeted monitoring activities and local ordinances; award amoum funded by USEPA - $157,100; Demon's cost share - $88,041); and providing an effective date. BACKGROUND Approximately 6 momhs ago, the City Council adopted revisions to Subchapter 22 of the Denton Development Code that allowed gas well developers to drill wells within the flood fringes of Demon's floodplains, under certain restrictions. One of the outcomes of the revisions was a proposal to monitor the mud pit contents of gas wells located in the City and to monitor for potemial storm water / water quality impacts from drilling operations. Shortly after the revisions to Subchapter 22 were adopted, City of Denton Watershed Protection staff applied for a 104(b)3 Water Quality Gram under the national USEPA program. Since the issue of assessing the potential storm water impacts of oil and gas exploration is an important topic to the USEPA, staff felt that the grant application was timely and that the goals of the monitoring component of Subchapter 22 could be enhanced by the activities proposed in the grant. Although the USEPA 104(b)3 program is highly competitive on a national scale, the City of Demon was successful in competing for the grant. Staff believes that this grant will enhance our ability to effectively monitor the water quality componem of gas well drilling operations within the City of Demon, and that the results from our monitoring efforts will be important to the USEPA on a national basis when the Phase II storm water permit is reauthorized during the next permitting cycle. The gram is designed to be implememed over a 3 year period, and will likely begin mid- October 2004 if approved. Detailed information concerning the grant is contained in the interim proposal, which is provided as an attachment. Points of interest concerning this grant include the purchase of a large amount of monitoring equipment using grant funds, a relatively large componem of the project dedicated to funding monitoring activities, and support for a field technician, which we anticipate to be a graduate student at the University of North Texas. OPTIONS 1. Accept the proposed grant without modifications. 2. Accept the proposed grant, with modifications. The acceptability of modifications will be comingem on decisions by the USEPA 3. Do not accept the proposed grant. RECOMMENDATION Staff recommends Option 1, accepting the proposed resolution without modification. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Public Utility Board voted unanimously to accept the proposed grant without modifications during the October 11, 2004 meeting FISCAL INFORMATION The proposed gram is for a 3-year period, for a total amoum of $245,141. The federal share of this gram is $157,100, which is allocated mainly towards the purchase of equipment, analytical costs, and the support of a field technician. The cost share for the City of Demon is therefore approximately $88,041 over the three-year graM. This cost share is exclusively comprised of in-kind services related to the monitoring program that was established during the revisions to Subchapter 22 of the Denton Development Code. BID INFORMATION None EXHIBITS Interim Proposal for USEPA 104(b)3 Water Quality grant Ordinance PUB Minutes Respectfully submitted: Jim Coulter Director of Water Utilities Prepared by: Kenneth Banks, Ph.D. Water Resources Program Manager Interim proposal for USEPA 104(b)3 Water Quality Grant Name of Project: Demonstrating the impacts of oil and gas exploration on water quality and how to minimize these impacts through targeted monitoring activities and local ordinances. Point of Contact: Kenneth Banks, Ph.D. Watershed Resources Programs Manager for the City of Demon 901 A Texas Street, Denton, Texas 76209 (940) 349-7165 phone, (940) 349-7334 fax, Email: kenneth.banks@cityofdenton.com Is this a continuation ora previously funded project? This is not a continuation of a previously funded project, however, EPA grant monies have been previously awarded to Denton. The EPA EMPACT program provided funding for watershed monitoring and EPA's Assistance Agreement GX82830801-01 provided funds to establish a city watershed protection program. Proposed Award Amount: $157,100 Proposed Awardees Cost Share: Salary: $20,522 yr (20% of $51,646 for project manager, 25% of $40,768 for analyst) Fringe: $ 8,825 yr (20% of $22,208 for project manager, 25% of $17,530 for analyst) Total per yr Total project $29,347 yr $88,041 over 3 years (represents 56 percent cost share) Description of general budget proposed to support project: Yr. 1 Description Number Cost Total Salary - Field Technician 1 $12,000 $12,000 Datasonde 2 $ 5,000 $10,000 Storm water sampler 5 $ 7,500 $37,500 TPH analyzer, Fiber optic 1 $10,000 $10,000 Glassware various $ 600 $ 600 Misc. Equip., repairs various Svarious $ 5,000 Travel, Conference, Publish various Svarious $ 5,000 Laboratory analytical 4 events, 5 sites $10,000 $10,000 Year 1 Total Yr. 2 Description Salary - Field Technician Misc. Equip., repairs Travel, Conference, Publish Laboratory Analytical Number Cost 1 $12,000 various $ 5,000 various Svarious 4 events, 5 sites $10,000 $90,100 Total $12,000 $ 5,000 $ 5,000 $10,000 Year 2 Total Yr. 3 Description Number Cost Salary - Field Technician 1 $12,000 Document preparation / publish 1 $ 5,000 Misc. Equip., repairs various $ 5,000 Travel, Conference, Publish various Svarious Laboratory Analytical 4 events, 5 sites $10,000 $32,000 Total $12,000 $ 5,000 $ 5,000 $ 3,000 $10,000 Year 3 Total Project Total $35,000 $157,100 EXHIBIT 1 Project Area ([bom AreasJbr Consideration) - Impacts of Wet Weather Flows: "Develop and pilot storm water discharge and ambient water quality monitoring techniques for gauging water quality improvements" and "Develop and pilot sample performance measures for use by Municipal Separate Storm Sewer Systems to incorporate into storm water management plans". Pro,iect Description The City of Denton is a rapidly developing city of approximately 89,000 people within a land area of approximately 62 square miles. The three main watersheds that pass through the City of Denton are diverse, and represent a transition from highly urbanized areas to more rural range and croplands. These watersheds have been extensively monitored over the last three years in an effort to better understand water quality variation and the relationship between landuses and receiving water quality. During the course of this program, an extensive geographical information system that summarizes the drainage areas, stream networks, soil types, landuses, and other pertinent information has been developed. Since the watersheds of Denton drain into the City's main drinking water source Lake Lewisville, source water protection is a high priority. Although Denton is the largest urbanized area that drains into Lake Lewisville, several other cities, including Dallas, Texas also obtain water from this lake. Public safety concerns, a desire to protect environmental resources, and storm water regulatory requirements of the National Pollution Discharge Elimination System's Phase II Storm water program motivated the City of Denton to develop a Watershed Protection Program (WPP) in January 2001. The WPP was developed by continuing the research collaboration between UNT and the City of Denton by using the infrastructure provided by a very successful EPA EMPACT program and the additional resources provided by an EPA Assistance Grant that was awarded to the City of Denton. The program utilizes a dense sampling network of over 70 stations sampled monthly, in-stream data recording devices that collect data every 30 minutes at selected sites, quarterly storm water sampling, and bi-annual benthic macro- invertebrate monitoring. Data from these monitoring efforts are combined with a detailed GIS database and used to target areas of greatest water quality concern, graphically display spatial and temporal trends, and determine the status of the City's surface waters. The City of Denton has also adopted local ordinances that are designed to protect water quality. One of the most significant ordinances establishes Environmentally Sensitive Areas (ESAs) within the corporate limits and Extra-territorial jurisdiction (ET J) of the City. This ordinance limits practically all land surface disturbing and vegetation removal activities within the Federal Emergency Management Agency (FEMA) designated 100-year floodplains within both the corporate limits and Extra-Territorial Jurisdiction (ETJ) of the City of Denton. Riparian areas outside of the 100-year floodplain are also protected, with the amount of protection dependant on drainage basin size. For those riparian areas surrounding a water conveyance that drains less than or equal to a square mile, a zone encompassing 50ft from the center line of the conveyance on either side is protected. For those conveyances draining greater than one square mile of surface area, a zone encompassing 100ft from the centerline of the conveyance on either side of the stream is protected. The existing programs have been very successful and we believe have created many benefits for the city, including storm water pollution mitigation, reduced flooding potential, increased wildlife habitat, contiguous corridors for wildlife movement, and increased open space. Much of the land surface of the City of Denton lies above a geological formation known as the Barnett Shale. Recent petroleum exploration in areas to the west of Denton has indicated that the Barnett Shale formation is capable of producing large amounts of natural gas. As a result, representatives of the petroleum industry have been petitioning the City of Denton to change the local ordinances related to ESA protection to allow petroleum exploration and production within the currently protected FEMA 100-year floodplains. This issue is very important to the petroleum industry, as many people who lease mineral rights would prefer to locate petroleum production equipment in the ESAs in order to free up non-ESA areas for future development. Current estimations indicate that at least 650 wells will be drilled within the corporate limits and ETJ of the City of Denton, and at least 220 of these wells have the potential to be located in ESAs. The main argument used by the petroleum industry representatives for locating their facilities in the ESAs is that petroleum exploration and production sites are temporary, have fewer disturbances, and have less impervious surfaces when compared to other forms of development. This argument is similar to the views expressed on a national scale by the petroleum industry regarding petroleum production sites being considered as "construction sites" under the Phase II storm water regulations. The final decision of the USEPA concerning how to consider petroleum production activities under the current Phase II program was to exempt petroleum production from construction site regulations until the next permit cycle. Because of this decision, there is a great need for research to determine the storm water impacts of petroleum production activities. We thus propose to use the City of Denton as a model to demonstrate the storm water impacts of petroleum production activities and as an example of how a Phase II municipality can regulate these activities to allow reasonable production of mineral resources while being protective of the environment. We believe that this research will be beneficial for the upcoming decision that the USEPA must make concerning the petroleum industry. Research results will also be very useful for municipalities that are facing similar issues with petroleum production. We thus propose to use the resources and experience derived from our watershed protection program, ESA ordinances, revisions to our petroleum ordinances, and a targeted monitoring program to demonstrate how a small to medium sized municipality might implement a cost-effective program to ensure that petroleum exploration does not cause an unacceptable amount of environmental degradation. We also assert that the monitoring program outlined in this proposal will provide information that the USEPA will find useful for making the final decision concerning how to regulate the storm water aspects of the petroleum industry during the next permitting cycle of the Phase II program. The research we have currently conducted indicates that the main contaminants of concern at petroleum production sites are total petroleum hydrocarbons (TPH), other petroleum constituents (i.e., BTEX), and sediment runoff. Using our newly adopted ordinances as an regulatory and enforcement tool, we propose to monitor the drilling mud pits and other on-site exposed pits for the presence of petroleum hydrocarbons at least two times during the time of active drilling for all drilling sites established within the City of Denton after the initiation of the grant. Monitoring will be conducted using recently developed fiber optic device as a screening mechanism. Those sites that are determined to be above target concentrations (established in our code of ordinances) during the screening process will be further assessed to quantify the concentration of TPHs and BTEX. We also propose to collect storm water samples from 3 petroleum production sites during the course of the grant. At least 4 flow-weighted or 4 sheet flow (depending on site characteristics) storm water samples will be collected from areas draining each petroleum production site during each year of the 3 year project. Every effort will be made to collect at least 4 representative storm water samples prior to the initiation of major construction activities at the oil production sites. At least two reference (control) watersheds of similar characteristics will be established and monitored at the same time. These data should provide an adequate understanding of the variation in loadings of target contaminants contained in the runoff of each site, how contaminant loadings change at the sites over time, and how runoff from petroleum production sites compares to runoff from other construction sites. We proposed to analyze samples for the following constituents: alkalinity, BTEX, conductivity, hardness, pH, salinity, total suspended solids, total dissolved solids, turbidity, and total petroleum hydrocarbons. We will also analyze the following metals: arsenic, cadmium, chromium, copper, lead, manganese, nickel, silver, and zinc. Expected accomplishments or product, with dates and interim milestones. The ultimate goal of this project is to demonstrate the storm water impacts of construction activities related to oil and gas exploration. As outlined above this information will be valuable to the USEPA during the next Phase II permitting cycle, when the decision on how to treat oil and gas related construction activities will be considered. We also intend to produce information explaining how a program that can cost-effectively monitor water quality at small local scales can be designed. We will use the results of the novel approach to monitoring water quality outlined in the proposal to create a guidance document specifically designed to transfer this technology to other Phase II cities. Part of the guidance document will include annual reports concerning the water quality of the test sites. We will also be able to include monitoring information from our existing program, which can be used to determine the status of the all the small watersheds within the City of Denton. Such information will be useful when comparing the storm water impacts of the test sites and the extent of the impacts of this storm water on receiving systems. The interpretation of results, although technical in nature, will focus on relatively simple statistical methods and will use a geographical format to facilitate information transfer. Completed reports (as a printable or down-loadable document) will be posted on the existing City web site. At the end of the three-year period, the Watershed Protection Program intends to use these data to demonstrate the impact of the water quality protection regulations that have been established for the oil and gas industry. We will also characterize the types of pollutants that are associated with "typical" oil and gas production facilities in our corporate limits. With the large amount of data collected by this program, as well as the extensive historical database already in place, the characterization of the pollution potential of oil and gas exploration and production activities will be possible. The results will have maximum transferability and will stand out as a strong model with regard to the prevention, reduction, and elimination of water pollution. Activity Sampling Production of Annual Reports Production of final guidance document Presentations conferences per year Publications in scientific journals Timeline Within 60 days of project initiation (depending on weather conditions) and approximately quarterly thereafter. First annual report produced 15 months after the initial grant award. Second annual report produced 90 days after the end of the second year Third annual report produced 30 days prior to grant closeout Produced 30 days prior to grant closeout Attempt to present results from this project at four or more Attempt at least two professional publications from this grant; joumal requirements necessitate flexibility in publication timelines Describe how the project meets the evaluation criteria specified below: Relationship of the proposed project to the priorities identified in this notice This project addresses several of the high priority areas listed in the Federal Register request for interim proposals. These include "develop and pilot storm water discharge and ambient water quality monitoring techniques for gauging water quality improvements", "develop and pilot sample performance measures for use by small Municipal Separate Storm Sewer Systems (MS4s) to incorporate into storm water management plans", and "develop and pilot innovative techniques to facilitate NPDES program management for enhanced results, integrity, and/or efficiency". This project will build upon the success of Denton's Watershed Protection Program, which was established under a previous USEPA grant. The data collected by the proposed project, as well as the model for collecting and evaluating these data, will be of significant utility to municipalities at to the USEPA when dealing with the Phase II regulatory implications of petroleum exploration and production. How well the project proposes address a nationally important need, issue, or interest The adoption and implementation of the EPA's Phase II Stormwater program came about because of the impacts of non-point source pollution on the Nation's water resources. Although improvements in water quality are the ultimate goal of the Phase II program, determining appropriate measurable goals to demonstrate improved water quality is often problematic. The problematic nature of measurable goals becomes particularly pronounced for entities of questionable regulatory needs such as petroleum exploration and production facilities. This project will build upon lessons learned during previous watershed monitoring efforts within the City of Denton in order cost effectively produce targeted water quality information. This proposal thus addresses a nationally important need by providing a demonstration of what impacts are expected from petroleum exploration and production, how local governing entities can cost-effectively collect relevant local data describing these impacts, and how these impacts might be minimized through regulation. Communication plan to transfer results of the project to other potentially interested parties The results of this proposal will be used to produce web-accessible reports that will be designed to allow other municipalities to learn from our experience. The Watershed Protection Program at the City of Denton has one staff member holding a doctoral degree in environmental science, three staff members holding Master's degrees, and experience producing documents for the USEPA and other similar agencies. As in our previous USEPA grant-supported projects, the staff intends to present papers at relevant conferences, publish papers in scientific journals and present workshops for local coordinating entities such as the Council of Governments. It is also expected that the data produced by this project will be used for theses and/or dissertation research for students at the University of North Texas, which will likely generate other potentially significant documents and presentations. How well the project furthers the goal of the Clean Water Act to prevent, reduce, and eliminate water pollution This project will provide sharply focused, quality controlled, local environmental data describing the environmental impacts of petroleum exploration and production. Our preliminary research leads us to believe that these impacts can be minimized through relatively simple regulatory mechanisms that are not onerous to the petroleum industry. We thus believe that a relatively simple local program of monitoring, inspection, and enforcement of best management practices can be used to ensure that the goals of the Clean Water Act can be met while simultaneously allowing reasonable access to mineral resources. The reports and guidance documents produced by this activities outlined in this proposal will aid other local governing entities interested in implementing similar programs. We therefore believe that our proposal will produce several products that will aid others in preventing, reducing, or eliminating water pollution. We also believe that the monitoring activities outlined in the proposal will also help us to fine-tune our regulations to ensure that the goals of the Clean Water Act are accomplished as oil and gas exploration and production increases within the City of Denton. Leverage of other resources (cost share, participation by other organizations) as part of the proposed approach The City of Denton is matching costs on this project with approximately $20,522 in salary plus $8,825 in fringe benefits per year. This project also continues the successful collaboration between the City of Denton and the University of North Texas, and builds upon the success of a very extensive watershed monitoring program and other monitoring efforts that are currently in place. Thus, there are few start-up costs, few learning curves, and no large infrastructure requirements. The watershed protection program at the City of Denton has been in place for approximately three years, and provides an excellent database for understanding local conditions. The lessons learned from problems encountered when implementing the current program will allow staff to more efficiently implement the program outlined in this proposal. Cost effectiveness of the proposal This project makes use of a fiber-optic screening method for assessing hydrocarbon contamination and traditional testing methods. Although the fiber optic system costs approximately 10,000, current estimates for TPH analytical costs are approximately 60 dollars per analysis, plus collection time and shipping costs. The unit will therefore easily pay for itself within approximately 150 uses. Considering the large volume of sampling proposed (estimated 1200 samples for TPH), this is an extremely cost effective means of obtaining the desired data. The City of Denton municipal laboratory and the facilities at the University of North Texas also provide very cost-effective analytical capabilities. We believe that the ability to implement the project immediately, the availability of historical data, the expertise available both at the City of Denton and the University of North Texas, the understanding gained from the existing watershed protection program, and the volume of proposed technology transfer activities make this project extremely cost effective. Compliance with directions for submittal contained in this notice The City of Denton is local government and is therefore eligible to submit this initial proposal. This project is unique, innovative, and builds upon the success of previous and current programs. The proposal addresses the requirements of the NPDES program with particular emphasis on wet weather activities and is designed to enhance the ability of the regulated community to deal with non-traditional pollution problems in priority watersheds. Since the watersheds examined by this project drain directly into a major drinking water supply, we feel they meet priority standards. ORDINANCE NO. 2004- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER, AS DENTON'S DULY AUTHORIZED REPRESENTATIVE, TO ACCEPT A WATER QUALITY GRANT FROM THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ("USEPA"); AUTHORiZiNG THE CITY MANAGER TO ACT ON BEHALF OF THE CITY OF DENTON IN ALL MATTERS RELATED TO THE GRANT, INCLUDING FUNDING THE CITY'S COST SHARE OF THE GRANT; AND PLEDGING THAT THE CITY OF DENTON WILL COMPLY IN ALL MATERIAL RESPECTS WITH THE PROJECT REQUIREMENTS OF THE GRANT (DEMONSTRATING THE IMPACTS OF OIL AND GAS EXPLORATION ON WATER QUALITY AND HOW TO MINIMIZE THESE IMPACTS THROUGH TARGETED MONITORING ACTIVITIES AND LOCAL ORDINANCES; AWARD AMOUNT FUNDED BY USEPA - $157,100; DENTON'S COST SHARE - $88,041); AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the United States Environmental Protection Agency (hereafter "USEPA") earlier this year received a gram application from the City respecting the issue of assessing the potential storm water impacts of oil and gas exploration on water quality, and how to minimize these impacts through targeted monitoring activities and local ordinances; and WHEREAS, USEPA after considering the grant application of the City, felt that the application was timely and had merit, and has accordingly offered a §104(b)(3) Water Quality Gram to the City in the amoum of $157,100 for the federal share, and with an $88,041 cost share to be borne by the City, in the form of personal services; and WHEREAS, Staff believes acceptance of this gram will enhance the City's ability to effectively monitor the water quality componem of gas well drilling operations within the City, and that the results from the City's monitoring efforts will be important to the USEPA on a national basis, when the USEPA Phase ii storm water permit is re-authorized during the next permitting cycles; and WHEREAS, the Council of the City of Demon, Texas desires to accept this §104(b)(3) Water Quality Gram; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager of the City of Demon, Texas, is authorized to accept the above referenced grant, and to act on behalf of the City of Denton, Texas in any and all matters related to the grant; including without limitation, authorizing in-kind services for the City's cost share of the grant, related to the monitoring program that was established during the revisions to Subchapter 22 of the Denton Development Code. SECTION 2. That the City of Denton, Texas will comply with all material grant provisions established by the USEPA. EXHIBIT 2 SECTION 3. That the grant funds, and any grant-funded equipment, and any grant- funded facilities will be used only for the purposes for which they are intended to be used under the grant. 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: S:\Our Documents\Ordinances\04\USEPA Water Quality Grant-104(b)(3) Grant Receipt.doc 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 48 49 50 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES October 11, 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, October 11, 2004, at 9:00 a.m. in the Service Cemer Training Room, City of DeNon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Dick Smith, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities The Public Utilities Board convened its Open Session at 9:00 a.m. The Chair, Charldean Newell, stated to the Board that there were three Closed Meeting agenda items that were set forth in the Closed Meeting agenda and requested a motion to consider all agenda items under §551.086 §551.071 of the Texas Governmem Code - Deliberations Regarding Certain Public Power Utilities Competitive Matters and §551.071 of the Texas Government Code - Consultation With Attorney. A motion was then made and seconded respecting the consideration of three items by the Board. The Board then voted 6-0 (Baines late) to move imo Closed Session to consider both items, and thereafter convened its Closed Session at 9:01 a.m. mo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS ---UNDER TEX. GOV'T. CODE §551.086. 1. Receive information from one of the City's Texas Municipal Power Agency ("TMPA") Board Members and/or from City Staff pertaining to certain competitive electric matters regarding present and future maintenance issues, financial issues, operational issues, reliability issues, possible litigation involving the agency, any pending legal matters, together with any related strategies or issues concerning the City's imerest in, and its business relationship with TMPA; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. 2. Receive competitive electric information, including financial information from Staff pertaining to DeNon Municipal Electric ("DME") electric service rate issues and strategies, including without limitation, the first quarter Energy Cost Adjustmem ("ECA") rate and other related matters; and discuss, deliberate, consider, determine policy, and provide Staff with direction regarding such matters. Bo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS --- UNDER TEXAS GOVERNMENT CODE Page 1 of 2 EXHIBIT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 §551.086. CONSULTATION WITH ATTORNEYS --- UNDER TEXAS GOVERNMENT CODE §551.071. 1. Receive competitive public power information and documentation from Staff regarding the Second Supplement to Transition Power Agreement, proposed to be executed by the City of Demon, Texas and the Seller thereof, to reflect certain market changes that have occurred since closing of the Transition Power Agreement; the status of other public power operational matters; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. Further, discuss and consider the legal ramifications and effect regarding execution of the Second Supplement to Transition Power Agreement. Discuss other legal issues concerning and related to this matter with the City's attorneys, where to discuss these matters in public would conflict with the duty of the City's attorneys to the Public Utilities Board under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. The Closed Session was completed at 9:27 a.m. The Public Utilities Board reconvened in Open Session at 9:28 a.m. The meeting was called to order to consider the following business: ITEMS FOR INDIVIDUAL CONSIDERATION: 5) Receive a report, hold a discussion, and give staff direction concerning a United States Environmental Protection Agency (USEPA) 104(b)3 Water Quality grant that has been offered to the City of Denton. Kenny Banks, Water Resources Program Manager, presented this item. Approximately 6 months ago, the City Council adopted revisions to Subchapter 22 of the Denton Development Code that allowed gas well developers to drill wells within the fringes of Denton's floodplains, under certain restrictions. One of the outcomes of the revisions was a proposal to monitor the mud pit contents of gas wells located in the City and to monitor for potential storm water/water quality impacts from drilling operations. Shortly after the revisions to Subchapter 22 were adopted, City of Demon Watershed Protection staff applied for a 104(b)3 Water Quality Gram under the national USEPA program. Although the USEPA 104(b)3 program is highly competitive on a national scale, the City of Denton was successful in competing for the grant. The gram will enhance the City's ability to effectively monitor the water quality componem of gas well drilling operations within the City of Demon, and the results from monitoring efforts will be important to the USEPA on a national basis when the Phase II storm water permit is reauthorized during the next permitting cycle. Board Member Dick Smith moved to accept the proposed grant without modifications, with a second from Board Member George Hopkins. The motion was approved by a vote of 7-0. Page 2 of 2 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET October 19, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider approval of an exaction variance of Section 35.20.2 (M)(2) of the Code of Ordinance concerning improvements to offsite streets. The 3.96-acre parcel is located on the east side of Locust Street/FM2164, approximately 400 feet south of Windsor Drive. The Planning and Zoning Commission recommends approval of a partial variance (7-0) (V04-0024). BACKGROUND Roger Wilkinson (representing Martin Blair, of BioFix Holdings Inc. the developers/owners of this property) has applied for this exaction variance. The Development Code requires a right mm deceleration lane and a left turn pocket to be constructed for each entrance to/from an arterial for any development that generates between 100 and 1000 daily trips. The property is currently zoned NR-2 (2 lots to the acre), NR-4 zoning (4 lots to the acre) is proposed. Three residential lots exist and 12 additional residential lots are proposed. The proposed development will generate 150 trips per day (120 more than the existing three houses). Locust Street, (FM2164) is a TxDOT controlled highway and an arterial on the city's Mobility Plan. TXDOT access management standards will also apply. The City Council may approve an exaction variance if the following criterion is met: b) 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 applicant's request is based on their estimate that with the required improvements, the development cost per lot will exceed a reasonable cost. Staff discussed alternative development scenarios with the applicant that could mitigate the need for the required mm lanes, however the applicant wishes to pursue the original proposal with the variance. 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. OPTIONS 1. Approve full variance 2. Approve full variance with conditions 3. Approve a partial variance (P&Z recommendation) 4. Deny variance (staff recommendation) Page 1 RECOMMENDATION Staff recommended denial of the exaction variance to the Planning & Zoning Commission since the costs to install the turn lanes do not appear to constitute confiscation of the property and the turn lanes will provide a benefit to the future homeowners in terms of a safer entry. PRIOR ACTION/REVIEW On September 8, 2004, the Planning and Zoning variance (7-0), requiring the (northbound) right (southbound) left turn lane. Commission recommend approval of a partial turn deceleration lane but not requiring the FISCAL INFORMATION General information as to the associated costs development, are provided in the applicant's letter. of the two improvements, as it relates to the ATTACHMENTS 1. Location map 2. Proposed Site Plan 3. Applicant's letter 4. Planning and Zoning Commission minutes 5. Applicant's Supplement Letter Prepared By: David Salmon, Assistant Director Respectfully submitted: Kelly Carpenter, AICP Director Planning and Development Page 2 SITE LOCATION ATTACHMENT #1 Windsor Locust / / ..... / I, ~//, //, //, ~.~ APPLICANT'S LETTER · P.O. Box 2R20- Denton, T .,en~ 76202-2820 - U.S.A.* · 212South Elm Street · Denl~rn, Texas 76201 -U.S.A. Telephone: (940) 382-2594 ~ Telefnx: (940) 387~2294 ATTACHMENT #3 F-Ma#: expom@biofix, com Web 8ire: biofix.com City of Denton Planning Department 221 N. Elm Street Denton, ;Texas 76201 Attn: Chris Fuller August 10, 2004 Re: JAMART Addition at Locust Street City of Denton, Texas Dear Mr. Fuller, We are hereby requesting an exaction Variance for the above referenced development, from the Cities requirement that left and right turning ~anes be constructed to provide access along Locust Street. The construction of these turning Lanes would be required to be in accordance with TXDOT specifications for paving, It would require that the existing pavement be removed and traffic disrupted in .order to complete the construction activities. It is our opinion that the cost to construct this item is excessive and would make the. development unfeasible from a cost stand point as well as a practiCality standpoint. We estimate the cost of the turn lane construction plus end transitions (a total of 460 feet) to be in excess of $70,000. The total financial lot yield after ~and and development cost is already below a 20% profit margin and this additional cost would bring it to less than 10% profit for the developer. Based on the extremely iow volume of traffic flow that will be generated by the development (maximum of 9 trips per day x 3.2 persons per lot x 13 lots = 375 trips < 1000 required for Traffic impact analysis by the City) it is our opinion that the existing street is properly configured to handle the additional traffic flow that will be created. The City however requires turn lanes regardless of the development size, which is obviously impractical in this instance. We respectfully ask that the requirement for turn lanes not be applied to this development. Sinc/erely, (olding, Inc. 08-11-04PC,~:58 ~tl.\/I) P & Z MINUTES ATTACHMENT #4 1 2 $ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I 2 4 5 7 8 9 ~0 12 13 15 16 ~? 19 20 2! 22 25 PROCEEDINGS $~ 8~ ~4. ~ ~ is 6:30 p.m. ~ ~nni~ a~ ~i~ ~i~ will ~ c~ ~ ~. If ~u'll p~ {~d a~ joia ~ ~ ~ p~ ~ ~ fl~. ~a, ~ P~ of Al~ia~ i~ coa*i~ a~mval ofl~ minu~ f~ A~t ~. ~4. ~m~lO~ S~e ~o~. ~ ap~aI of ~ ~u~ of 2~4. Any I'll ~]1 for a v~. Vo~ ~ss~ 7~. A~ f~ ~d'{ s~as I ~b~, ~t ~ Ms. ~olt O~y. Nm~ 3 is ~ ~t ~a. S~~ appeal ~ ~ f~og i~* iff ac~n~ wi~ ~e Ci~ ~ ~mn ~ of ~imn~. Page 2 TI~ Plannin~ and go~in~ Commissi~ tmvc r~viewed this application or these appllcations and has had an opportunity to r~i~o questions a!garding these imm$ prior to considcra~n. Mr, Roy, do you haw a motion fo~ us? ML Holt has a motion -- and she's up here on the board {tad I didn't see it. ODMMIS~II2I~TER HOLT: ] WOll~ 11~ to i'~IIOV~ ltnm D frcaa tl~ Con,at Al~mda, please. (X)MMT~OI~'P-R POWELL: W~ h~l'¢e a il'lOth:w1 -- la thru a motion to approve thc Consent ^8~ada with ~tc.~,tlon af lean D? COMMISS~O{,me ROL~'. I'm sorry. Y~. coeaMisstcmmt g:RVELL~ Thank you. I$ ~ a seclmd? COMMISSIONER ROY: lag:Omi. OOMMISSZC~a ~OWELL~ second from !~. Roy. We have a motion ~o approw tho Consent Agmda with tho mic~tion old as in dog. And is 0ere any discusgion aa that motion? .$~:iag or bearing none, I'll eau for a rog. Mofitm passes 7-0. Next item is 3D, as & ~qauag item. I1 is approval of final pla; of Loll 6 tha'ough 8, Block A of Dc~oa Modical Plaza. Ms. Holt again. COMMISSlOI,~F-R HOLT: ~ haY© a motion and I PLANNINO AND ZONING MINUTES 9-8-04 5 6 '7 8 10 !1 12 13 14 15 16 17 18 19 21 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 ~5 Page 3 Page 4 OOMMI~SIO~_JI WA?KIN~ second, ~MMLqSiOMIR ~W~L~ ~ by Wa~ns. ~y di~? I'H call f~ a v~. ~t~n pas~ 7~. ~ ~ ~ I~ 4, i~vid~l conc~n~ ~p~ ~ off-a~ s~s. T~ 3.96 ~m pa~l is ~a~ ~ ~ mst ~i~ of Locusl appmx~y ~ f~ s~ of Wiads~ Ddt. pr~ is cm~ ~ N~-i, ~ ~sl ~ mist. ~ ~i~o~1 ~i~t~l ~ ~ p~. ~. Vok~n. ~ a~ ~t~ of ~e ~ms~. You ~w ~t~ ~ a ~mt by ~ Wi~inson, ~m~ng of lb ~, who ~S ap~l~ f~ an ~ v~ 04~24 of ~ti~ 35.20.2(MX2) of ~ i~im~ ~f~ ifs a ~.96 Page i - Page sas. eAumae~, ms Chris Fuller he,cT MIL RRICf-IRMIT: Itc has st~'ppod OLII, Ms. EALUMBO:. chris Fuller is the plmmcr on ibis particular plan that was brought to le~l. Them lao~ds to I~ 8 pr~ owncr~s a~nt for the mainleamaee and ol~ra6o~ of a ~ivme so. vu- lift station by 1be Proper~ Owre~'s Association. TIHs asn~eoent was provkted to ll~ Plannin& E~ra-nem lag Lhls a~ and Legal has not had t.~ opportunity to r~vitw th~ The Cormntsslo~ amy moro to r~c~nramd a ceedltional approval as lo~ as. tl~ Property Owr~r's Asrmm~t is recorded as a restrictivo ¢ovenan~ and the plat contains a aot~ conch'hie8 Lhis a~d ~lat ihe Legal Depm~t bas approved rte Property Own~'s Agrm~t to maintsin and ol~era~e the sewer lift station by proper~ owners. So it' 11~ Comm|sslon dcsires, they have ibc option o1' a conditional approval as long as conditions a~ m~t, ~ a motion io tabl~ ',his i~m th~s~ roluiremen~s can bo suflici0ntly rreiewed ai tt~ rex: m~tinL COMMeSS~ON~R eOWBLL: MS. Hail was mogon to appmw with lbo conditions? O~d'MIg~IONF-,R MOLT: C'OMMIgSIONKR eOWffi-L: Th~r4k yin1. ]~0 'we Condcnsclt .... 5 6 7 10 ti 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 4 6 7 8 10 11 12 13 14 15 16 17 18 19 21 22 24 appm.xi~ra~ly 400 fo~.t south of Windsor. This is tl~ public llhrary and t~ sclmot p~oporty to ~e east. Tbe ~a,u~t ia for - ~ no~ haw to iasMll a right-turn la~ for nc~rthboand Locust inl~ Ibis par~ as ~ as a Page 5 COMMISSIONER POWI;LL: tf you want Io continu~ I'm for it, I'mjus~ 81vlng you t~ option. MR. WILKII'O~O~: 8tll~. COMMISSIONER ~aOWP-~L~ thank y~u. l~-Utm pocket to turn into th~ pa~i. Yoa haw b~ ~'m ~n8 a ~ ~t pmfic ~d ~a~ of ~ ~ial. S~ff is ~ f~ any q~fiong ~ ~ls issu6 of s~ ~s~t~ ~w~ w~d ~ applic~t ~a. w~: ~ ~i~. ~n, 76201. f~ ~l. I didn't find ~* until about ~:00 b~ ~. HCs i~ Va~ V~ lo an~ ~- He's 5 6 7 8 9 10 11 13 14 15 17 18 t9 20 22 25 MR, WlLKll~q: The ownS, juat ~ ~t j~t n f~ ~n~s a~. ~ prop~ p~ious~ ~d fi~ stmc~ on it which ~ ~ aM ~ ~ ~ and ~ ~'s $~ out b~s. ~ ~ nc~y fo~ differ pa~ls. And fl's ~ u~ ~ ~n~p f~ but ~ ~ ~at and it's n~ ~ ~t. A~ ~ of ~ ~ ~ ~iat~g ~ and ~'d li~ ~i~ m ~ ~ tn ~ v~an~ I know a~d~ mof~. But ~snidlf~ just ~ ~ n~ ~ tna~ of 12, ~ ~ ~ uafil ~ ~ ~w, f~ad di~on ~'m ~i~ ~ ~ ~ ~l. ~d ~ ~ ~ ~ ~ f~ with may ~ ~ ~ ~ Ci~ mb-~s tt~ one tim come up with tim cost analysis, Iliad another ¢ngiae~r rvlmrt ~'at showed th~ cost of the right-turn latin -- tho curomt ~agloe~ was about $70,000.00, tl~ previous o~ was about $150,000.00, co~s,~oN~ mw~: could I i~t~rj~t just o~ quastim~? MIL WILKINSOn: S~, Y~g. O~MM[SS[ONER POWELL: I hag to iflt~pt you. ~ould you ~ us to table this and coma back Page 6 Page 7 anoth~ tls~? I n~an, I'm just asking ll~t, ~11~ wtLICmSo~t: ~1, ~c ~ m~g ~ s~ff, ~ said ~ ~ ~i~ ~ sup~ ~ ~ ~c g~aing iu~ It p~sly. ~d ~ w~ I ~n8 m ~y R ~l. ~ I ~'t ~ ~y '- singu 3:00 10 Il 12 13 14 Page 8 al{owcd to be dom. 1~ wanied to do son-~ing like Bllingam Park dmvn ou Tcaslcy Lan~, But be is looking at putting t~s~gn 1,500 and 1,$00 squar~ fce~ tm c~ch oreo of ~ lots, Ixmsea of around $150,000.00, somewha~ along that raag~ $o with ~'~ amount of traffic, in d~ ]clgr he ~aid 13 ucw lots which actually tlgre will be iris! aine new k)ta which ,Ad11 actually lower thu amount of trnffi¢. And if you look al t! ~gcn ma n 12-ho~ basis, o'clock ~{ay I found out it v/ns going tO~iBht, Somebody ~1~ aM said R ~s going ~ ~ ~ ~. ~M~O~ ~ELL: ~ u~nd ~t, I mM~mnd ~ spot ~. I'm ~i~ if~u ~t ~ ~ ~bk ~im. Ms~. And ica n~ ml~ going ~ ~, ~ ~¢~ a~ ~ facts. And ~ I ~ just ~ ~ ~ ~ gi~ a liM~ synopai$ of w~t ~ ~ of ~ p~ ~d sud~ aa ~t. 16 17 18 ]9 20 21 22 23 24 there's learn than 30 pa' hour. If you go down to minutes, th~r~'s less *ban onccv~y two or ttwee minu~es. So itrs going to haw vo'y little imt~act o~ thc traffic akmg Locust Stt~-l. It's a lwodar~ asphah, no shouid~s, sta~ hlgbway fatal section. And c~tly, 'd~ ~ ~ 6fiwways. We'~ going ~ l~aw I1~ or~ I~ tha ~ existing house, T]~ other housc will com~ off ~ side ruad and this o~o will bu going away and a driveway llgr~, So the actual muubcr of traffic is ~ minimum and the nmaunt of co~t associated with right-turn and i~-rum llumc would bu so much burdcax oq th~ property, it would make it probab{y unfca~iblc ~o go Aud I guess that's about ali l bare to say on lidm mat{ct at this time. If you haw auy qu~atlons, r 11 be glad to u.y to ans,,vcr t~. AND ZONING MI'blUTI~ 9-8-04 Page 5 - Page (_~n(jc13SOlt --- 1 5 § 7 8 9 10 fl 12 13 1¢ 15 16 17 18 t9 21 22 23 24 25 Page 9 COMMI~SIOH~R POWELL; would th~ gentlanan that jusl ~ tn ~ ~ ~ MR. W[LKI~N~ Oh, Bo. ~t'$ ci~ A~. couldn't ~lJ ~ ~ 1~ in ~ ~. I ~ol~. B~, I'~ ~ li~ &is ~ d~. I'm d~. l*m ~. I'm ~ ~r. ~a, wxc~n~: y~t's all d~t. No m~ R M~ ~ a~ w~'s out ~.' ~ca~ ~ a~ ~ and I ~, ~1, ~y~ ~'s sup~ m ~ wi~ ~u. H~'s gupp~wi~as, l'm~. Ha~u ~M~o~ ~w~L: T~ y~. T~ is a~ a public ~i~ aM ~is i~ ~ ~. ~s is a ~t i~ ~ ~ ~ a~t ~i~. ~y ~l~o~ ~: ~h. I'd ~ ~ ask -- 1 3 4 5 6 7 10 11 12 14 15 16 17 15 t9 2t 23 24 COMMISSIONER HOLT: Okay. COMMISSIONF-R POWELL: Mr. Roy. COMMISSIONER ROY: I un~s~d about ~t ~ing l~c ~ ~ as y~'~ ~ing n~. ~ting to ~ ~ leR-t~ 1~. CouLd you ~w me ~at ~ff-~ la~ ~'m ~ki~ abmt h~? Ma. VOKO~ n's not ~ ~ ~wi~ but it ~ld be f~ ~u~bo~ ~, ~ ~uld wi&n this ~ti~ ~ ~ md p~& a ~R-tum for ~le from ~ n~ md in~ ~ p~es, in~ this ~MM~IONER ROY: ~ ~ ha~ to w[~ ~ a [it~ bit? MR. VOK~: Ygs, sir. Ir wo~d look som~ l~e ~is md ~ ~ wo~d put a Ie~-~ ~MMISSION~ ROY: ~st iS ~ -- nO, it's ~t a us hi~y, ts it? ~IO~R ROY: ~ ~. ~k you. ~MML$SI~ POWELL: ~. ~MM[~I~R NOBLE~ ~nnk you, Mr. C~i~. I jua ~ ~ q~fi~. ~t's ~ s~ 5mR ~ ~t -- t~t's ~u~ M~ ~O~: I ~[~ ica ~Oy 35. Pai~ 10 I was first. I apologize. 2 COMMISSION'ER HOLT: I'd like to ask Mr. 3 Vokoun, I'm not :~al. ly cie. ar why tt~ denial. I'm just 4 reatly not clear on any of this exactly. What did they 5 want ta do and why don't you think it's -- 6 MR. VOKOUN: 7be Code n~quir~ if a TIA is 7 not r~luired, whioh is 1,000 trips or more, if there's 8 between 100 and !,000 trips, then th~ Code specifically 9 says that right-turn and left-turn lanes m~d to be 10 installed for ali ~ntranees to all properties in the I I subdivision. Based upon the loner - for safety r~mms, 12 in that eaae~ Based upon the letter that was provided 13 staff, they indicat~l a ten percent profit with the 14 construction of those two items. And the staff is unable 15 to determine what degr~ of profitability should b~ ! 6 towards the devdopmaat. TM fact that they had any 17 impl{es that there's the ability to construct tho needed 18 infrastructure. 19 COMMISSIONER [IOUT: NOW, h~ said 20 about if thoy only d~d tga lots, they would not have to 21 apply for this; is that correct? 22 MR. VOKOI.~: YeS. The third portion of th~ 23 Coda indicates that if ~c's less than 100 trips, which 24 would be those number of lots, then that portion is no 25 longer a require_ neat. · ,, ..,...,A · ,,,., ?rix, mc: 1 4 $ 6 7 8 9 l0 11 12 14 15 ]6 17 18 19 20 21 23 24 2~ Page 12 OOMMIaMONF-R InZ~WlR. L: Mr. Sltant~. O~MML~SIONER 3TRA.~O~' Mr. V~un, I in ~ ~ckup ma~ it ~ ~W ~t N~ ~goit is n f~ m ~ and ifa ~ by T~ -- ~. voKo~: ~1~. ~o~s~OE: Y~, 1164. And it's ~ ~ Txu~. wMt ~ ~ ~ ~u~n~ ~t ~uM apply ~ ~s p~ ~ ~ B~use it ~ ~gO~: ~T, nad ~u'll s~ ~ ~Mt ~ ~ s~ $imfion up at fl~ ~ny ~y ~g ~'d ~to ~ at ~ ey,, but ~ ~t ~t~ s~so~ ~ ~ a ~ia~n, Okay. lOWELL: Mr, Vokoun, tl~t~'g Page 9 - Page 12 ColKIClosclt .... Pag~ 13 I no mor~ qt~stkms ~xecpt that I ~ ot~. ~ do ~ ~e~ 2 c~s~ ~ p~tit ~? ~t b~i~s is it of ~ p~ and ~ p~fit? 1 ~ any ~nab~ b~t ~ ~ p~P~ own~ ~ is so l 6 ~co~si~ as ~ co~fim~ ~fi~afi~ of ~ ~ct ~ ~ Pa~ 14 I to ~ aL 2 ~Mi~t~ ~WBL~ ~nk ~o, So it 10 ~ing in~ ~s pr~ is ~ of a ~ to ~ ~n I2 s~, l'mnots~y~Y. Bu~lj~t~ifl 14 ~in~ I wou~ ~ ~ in~ ~. ~ rm ~i~ 19 m~ flint, B~? Is ~ any ~s~ab~s ~ ~t rm 20 22 con~fi~s wt~ ~s p~s~ ~tb ~ applicant. 1 2 3 4 5 7 8 9 10 11 12 14 15 16 :18 19 2O 21 22 23 24 25 1 2 3 4 5 7 8 9 10 II 12 13 14 15 16 17 18 19 2o 21 22 24 25 Page 15 r~sidents. To a Ics~r deg., ~ would bo possibly son~ traffic ~mlng in ~ ~ ~p ~ also in~ ~ pa~ ~ f~ ~ ~1~ club ~ f~ ~k A~ if ~'s a ~t of ~l~s~ f~ s~ c~i~ ~i~ Up. And ~R until ~ c~ p~s~ f~ ~ !~ ~ ~ ~m And it ~an b~ impafi~ ~d ~in~ llke ~his w~. ~ ~ ~ p~l off into ~ s~u~ or ~ ga~ n~ ~d by.ss ~ ~on who's ~hi~ f~ c~ ~ go by. So ~'s ~ disad~n~ nad I may, i'm f~ ~ ~ ff ~ sixties w~ ~u ~paud ~ ~ ~ f~c~ a ~fin$ h~. ICa ao~lly ~ m~ ~so on Ryan R~d and ifs v~, v~ awk~. And ~pa ~ ~n of ~is on~ wou~ ~ff~t But I ~ t~h ~ a ~ ~ fl's a ~ a~ liR~ in~, which ~ indkam Pag~ 16 ~at the southbound I~ft-alrn la~ is l~ss of a ~, ~nk ~ Bud. ~M[~ION~ ~WEL~ MS. ~MM~I~ ~T: ~. ~]~ you m~h my ~, is ~t a ~ ~phalt m~? ~MM~ HOLT; ~U~ just ~d ~ ~'t ~ ~ ~ ~ing a~t ~ cuin8 up, ~.~o~: ~1, if~u'~ s~ing li~ ~ ~ ~ ~ with si~tions ~MI~ HOLT: O~y. ~k yotl. ~[~ sT~ ~n ~ also ~h my ~? along E~ Par~ m~gsl ~ up ~ and I~'s qui~ a [~ dfings ~ only ~ o~ ~at ~ a ~ ~. P~r ~ McKamy .... P~ t3 - Page 16 1 2 6 7 17 19 21 22 1 2 3 4 10 1! 12 14 16 17 19 20 21 22 Page 17 Evers, fl-,e City Code did not r~quim left tums m be installed with the developraent. COM~tlSSICr~ s'r~G~=: So in tha whole stretch, wc just have one? MR. VOKOUN: Th~'s corrt~ at this point. COMI~O~ION~ 8TRAIqGE~ Thank you. CO~SstO~Eg ~OY, How la.ge is that s~bdtvislon compnroi to th[~ erg ~ough? $ignUicnatly, MR, REICHH~RT: Tl~tt$ nt ]engt 200 |ets. Pagc 19 COMMIgSK)NER POWELL: A SgColld fi'Olri Mr. S~'a~. Any di~c~n on ~ ~ti~? ~a[ ~ li~ ~ d;s~uss ~ motion. ~, s~ t just ~t ~ ~ l~ cl~ ~t ~ is a ~o~aflon ~ ~ Ci~ ~ncil. You ~n't ~t ~ var~aco on ~ ~. · rhe~'s going to b~ 200 lots, if not mo~ thru that. MR. VOKOO~: ~ ~ ~ a n~ of ~ ~so. ~. VOKO~: W~ ~u ~ ~t t~ is ~ 10 11 12 13 14 I'll call for n vot~, Motion pasgs 7-0. first phag for that ~L-ve, kgm~t and they wcm r~quinxl put ~ t~. ~ ~ pmvM~ ~i~l ~ north and ~ ~H ~ ~u~ ~ put poe~s f~ ~ s~ ~. ~MMISSI~ ~W~: S~ ~S ~n~ up ~ I'm ~i~ ~ ~a q~ ~, I'm ~i~ ~at ~ li~ w~ ~ ~ ~ [gs, ~t at 1~ or not ~ t3, but at ~. And ~u~ ~g ~ a 12-~t subdivi~ou, ~ ~s ~ go ~ ~ pm~; is ~t? Pag~ 18 ~ps ~e~ted a~ ~ 100 and 1,000 and w~-- and the Institut~ that w us~ fo~ trip g~m~tio., indicates tlmt ~'~'s 9.64 tri~ p~ amt. COMMmSIONER ?OWELL: Okuy. So ~ trigggr is actually trips based on thc number of lots, It's not thc lots. M~ VOKOUN: That's corre~ COMMiSSiOnER POWnU.: Tlmnk yom Any otlgr discugsion on tbia issue? Is $or~body williug to ~ out [orvmrd with a motion? This is not a publio Igarlng. Mr. Roy. COMMISS[ON£R ROY: I'd lik~ from Legal as to wheth~ or not I eaa make a proposal to ~re~ to a partial vmanc~ wl~re We require one of the turn largs and not tM other. May I make a proposa~ that way? Mg. SNYDER; Yes. In fa~t, this Commisstou has dor~ that in tl~ past, has done par~al COMMISSIONER ROY; okay, ~ I mov~ that v,~ n:qu~ tho northbound turning hnc and ,mismg a variance for the aoothbonnd turning lane, COMMISSIONER POWELL; ! hflv~ a motion from Mr. Roy, a conditional motion. Is there a second? COMMISSIONER STRANGF~ ~d. 15 16 17 18 19 2O 21 22 2.3 24 1 2 4 6 7 8 i0 t2 16 17 18 19 21 22 23 25 Page 20 ~ ~c'. A~-n ~c~;¢rNca MiN'O-r~.g 9-8-04 Page 17 - Page 20 APPLICANT'S SUPPLEMENTAL LETTER Dyer & Associates, Inc. Engineering & Consulting 13309 FM 51 · Era, Texas 76238 · Phone: 940-390-6083 - Fax: 940-668-0446 E-mail: jbdycr~ntin.net ATTACHMENT #5 Mr. David Salmon Assistant Director of Engineering City of Denton, City Hall East 601 E. Hickory, Suite B Denton, Texas 76205 September 23, 2004 Re: Construction Cost Estimate and Exaction Variance Appeal Letter for the proposed JAMART Addition, Lots 1 through 12 City of Denton, Texas At the request of Mr. Martin Blair of Bio-Fix Holding, Inc. we have reviewed the cost estimate numbers he originally submitted in his letter to Mr. Chris Fuller and have provided our own assessment of the development costs associated with the above referenced project. It is our opinion that the original numbers, which were approximate in nature, did not provide an accurate analysis for the costs. Our analysis has taken into consideration the following items and produced the following numbers: 1. On and Offsite water and sewer service - $85,000 2. Onsite Streets, sidewalk, storm drain and grading - $110,000 3. Erosion control SW3P and traffic control - $15,000 4. Water and Sewer Impact fees - $8,000 per lot x 12 Lots - $96,000 5. Land cost- $214,000 Total Base Development Cost = $520,000 Cost per Lot = $34,667/Lot As you can see, this ratio is excessive even when one takes into account the fact that this is a smalt lot yield subdivision. If a left and right turn lane is required its cost will further complicate this financial scenario. We estimate those costs to be as follows: 1. Right Turn Lane in accordance with TXDOT specs = $50,000 Which brings the cost per Lot to $38,000/Lot. Left turn Lane in accordance with TXDOT specifications = $125,000 Which brings the cost per Lot to $46,3331Lot. lof2 It should be noted that the cost of the turn lanes is about 50% of the base public improvements development cost and that alt of these additional turn lane public improvements would only serve approximately 75 vehicle trips per day. It is estimated that, (1) 75 trips (50% of total) will be exiting the subdivision onto Locust without utilizing either of these turn lanes, (2) 68 of the trips (90% of 50%) would utilize the right turn lane to enter, and (3) the remaining trips of 7 (10% of 50%) would utilize the left turn to enter. The estimations illustrate that such a small amount of trips, only one per two hours, would utilize the left turn lane and only approximately 5 trips per hour would utilize the right turn lane per day, These estimates are based on a sixteen hour window of use per day (6:00 a.m.-10:00 p.m). We feel that the installation of both turn lanes to be unreasonable and are not consistent with the type of development proposed and the demand for services created by the development. In conclusion, it is our opinion that the additional cost of the left turn lane would create very high undue financial hardship compared to its minimum utilization. The speed limit in this area is currently 35 mph and with the installation of the new street two existing driveways will be eliminated. The right turn lane would be more beneficial with the anticipated amount of trips utilizing it as shown on attached exhibit. The Planning and Zoning has made a unanimous recommendation not to require the left turn lane and require the right turn lane. We feet this recommendation to be just and are agreeable with the recommendation. If you have any questions or need additional information please let me know. ~~p E~,,~ ~hank you, Jac . yer, . . Dyer & Associates, Inc. mmm mm Z LU AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: October 19, 2004 Economic Development ACM: Mike Conduff, City Manager SUBJECT Consider appointments to the City's Economic Development Partnership Board. BACKGROUND The City Council approved the slate of nominees for the Economic Development Partnership Board at their October 5, 2004 meeting. The nominees are: Perry McNeill - City Council category Randy Robinson - Chamber of Commerce Board category Bob Haley - Top Twenty Taxpayer category Norval Pohl - UNT category 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-