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HomeMy WebLinkAboutNovember 16, 2004 AgendaCITY OF DENTON CITY COUNCIL November 16, 2004 After determining that a quorum is presem, the City Council of the City of DeNon, Texas will convene in a Work Session on Tuesday, November 16, 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 proposed ordinance revisions related to Code Enforcemem and property appearance. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of November 2, 2004. 3. Receive a report and hold a discussion with Leadership DeNon. 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: Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Consider and discuss ratification of mediated settlement agreement in litigation styled Ugwuh v. City of Denton, Cause No. 2002-41462-362, currently pending in the 362nd District Court of Denton County, Texas. 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. Deliberations regarding real property - Under TEXAS GOVERNMENT CODE Section 551.072, Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Deliberate the value and purchase 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") and other alternate sites, 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. City of DeNon City Council Agenda November 16, 2004 Page 2 Co Deliberations regarding certain public power utilities: competitive matters - Under TEXAS GOVERNMENT CODE Section 551.086. Receive an electric public power briefing and preseNation from the Director of Denton Municipal Electric regarding competitive electric and commercial information, pertaining to the subject of electric base rates; discuss, deliberate, consider, and provide Staff with direction regarding such matters. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE 'PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of DeNon City Council on Tuesday, November 16, 2004 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE mo U.S. Flag Texas Flag "Honor the Texas Flag - I pledge allegiance to thee, Texas, one and indivisible." 2. JOINT PUBLIC HEARING mo Hold a join public hearing of the City of DeNon Planning and Zoning Commission and City Council to consider zoning amendmeNs to the DeNon DevelopmeN Code affecting multi-family developmeN including, without limitation, requiring Specific Use Permits for all multi-family development in the City of DeNon. 3. PROCLAMATIONS/PRESENTATIONS mo Proclamations/Awards 1. Resolution of Appreciation for Gregory Hedges. Yard of the Month Awards Recognition of staff accomplishments City of DeNon City Council Agenda November 16, 2004 Page 3 4. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consem Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consem Agenda (Agenda Items A-L). 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-L 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. mo Consider approval of the minutes off October 19, 2004 October 20, 2004 October 25, 2004 Bo Consider adoption of an ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of DeNon; and providing an effective date (File 3257 - Electrical Energy Transmission Fees in the total amoum of $613,819). Co Consider adoption of an ordinance accepting competitive bids by way of an Interlocal Agreement with U.S. Communities and awarding a contract for the purchase of carpet; providing for the expenditure of funds therefor; and providing an effective date (File 3259 - Carpet for Emily Fowler Library and Civic Cemer awarded to Interface Americas, Inc. by way of an Interlocal Agreement in the amoum of $58,914.66). Do Consider adoption of an ordinance of the City of DeNon authorizing the City Manager or his designee to execute a purchase order with the Houston-Galveston Area Council of Governmems (H-GAC) for the acquisition of two new ambulances by way of an Interlocal Agreement with the City of Denton; authorizing the expenditure of funds therefor; and providing an effective date (File 3258 - Purchase of Ambulances for Fire Departmem awarded to Jack Roach Ford in the amoum of $211,550). mo Consider adoption of an ordinance accepting competitive bids and awarding a comract for Childcare Expansion Program for Low-Income Children; providing for the expenditure of funds therefor; and providing for an effective date (Bid 3254 - Childcare Expansion Program for Low-Income Children awarded to DeNon Christian Preschool in the amoum of $30,336). City of DeNon City Council Agenda November 16, 2004 Page 4 Fo Consider adoption of an ordinance accepting competitive bids and awarding a contract for Daycare Programs for Low-Income Families; providing for the expenditure of funds therefor; and providing for an effective date (Bid 3255 - Daycare Program for Low-Income Children awarded to Fred Moore Day Nursery School, Inc. in the amoum of $39,640). Go Consider adoption of an ordinance authorizing the Mayor to enter into an Interlocal Cooperation Agreement with Denton County for library services; and providing an effective date. Ho Consider adoption of an ordinance authorizing the Mayor to enter into an Imerlocal Cooperation Agreemem with the City of Irving, City of Carrollton, City of Fort Worth, City of North Richland Hills, City of Plano, City of Frisco, and City of Euless for the sharing of imeractive virtual reference library services; and providing an effective date. Consider adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton, Texas and The Weyer Living Trust; providing an effective date. Jo Consider adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton and Jet Works Aviation, Inc.; and providing an effective date. Ko Consider adoption of an ordinance authorizing the City Manager or his designee to approve a Right-of-Way Use Agreement with Fairfield Denton Exchange, Ltd. to allow the placemem of security and communication wiring under Cleveland Street approximately 355 feet south of the intersection of West Collins Street and Cleveland Street, and providing an effective date. Lo Consider adoption of an ordinance of the City of DeNon, Texas approving and authorizing settlemem of litigation styled Godson Ugwuh vs. City of Denton, et al, Cause No. 2002-41462-362 filed in the 362nd District Court of Denton County; approving the proposed settlement agreement to be dated November 17, 2004; authorizing the City Manager and the City's Attorneys to act on the City's behalf in executing any and all documents, and to take other actions necessary to finalize the settlement and release of claims; and declaring an effective date. 4. PUBLIC HEARINGS mo Hold a public hearing and consider adoption of an ordinance rezoning approximately 6.1 acres from a Regional Cemer Commercial Neighborhood (RCC-N) zoning district to a Regional Cemer Commercial Dowmown (RCC-D) zoning district. The property is generally located 1,500 feet east of State School Road, on the south side of Interstate 35. The Planning and Zoning Commission recommends approval (7-0). (Z04-0036, dim McNatt Automotive) City of DeNon City Council Agenda November 16, 2004 Page 5 Hold a public hearing and consider adoption of an ordinance rezoning approximately 95.1 acres from a Neighborhood Residemial 2 (NR-2) zoning district to a Neighborhood Residemial 3 (NR-3) zoning district with an overlay. The property is generally located on the east side of Bonnie Brae, approximately 750 feet north of Vimage Boulevard. The Planning and Zoning Commission recommends approval (7-0). (Z04-003 7, Glenwood Meadows) 5. ITEMS FOR INDIVIDUAL CONSIDERATION Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Real Estate Contract for the acquisition of approximately 88.56 acres by purchase, and approximately 34.89 acres by donation, for a Public Safety Training Facility, Park, and other future public amenities located at the southwest corner of Vintage Boulevard and Bonnie Brae Street, said tracts being a part of the James Edmondson Survey, Abstract No. 401, as described in the Deed to Denton-CJW Partners, Ltd., Recorded in Clerks Document No. 98-R0038601, Deed Records, Denton County, Texas; authorizing the expenditure of funds, and declaring an effective date. Consider adoption of an ordinance by the City Council of the City of DeNon, Texas, calling an election to be held within said City on the question of the issuance of Ad Valorem Tax Supported Public Securities; making provision for the conduct of the election; and containing other provisions incidental thereto; and declaring an effective date. Consider approval of a resolution nominating members to the Appraisal Review Board of the Denton Central Appraisal District; and declaring an effective date. D. Consider nominations/appoimmems to the City's Boards and Commissions. Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: A. Cymhia Cochran regarding high utility bills. B. Nell Yeldell regarding Verizon telephone service and the high cost of utilities. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. City of Demon City Council Agenda November 16, 2004 Page 6 Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Demon, Texas, on the day of ,2004 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: November 16, 2004 Police Jon Fortune, Assistant City Manager SUBJECT: Receive a report, hold a discussion and give staff direction regarding proposed ordinance revisions related to Code Enforcement and property appearance. BACKGROUND: On July 20, 2004, staff presented a comprehensive review of the ordinances, procedures and programs related to property appearance and Code Enforcement. The presentation contained many issues that have been the subject of growing concern and interest within the community. Other issues, specifically the enforcement process, have been recognized by staff as hindrances to the efficient and effective achievement of compliance with current property appearance standards. Staff was requested to prepare a matrix of the issues and return for further direction. Along with the matrix, members of the Code Enforcement and Legal staff drafted new ordinances and revisions to current ordinances that would, in staff's opinion, effectively address these issues. The proposed ordinances were developed after a review of existing ordinances throughout the North Texas area. They are submitted as a reference for Council while considering what, if any, legislative action should be taken. On October 13, 2004, staff presented a matrix of Code Enforcement issues to Council for discussion and further direction. During that work session meeting, several items on the matrix were not discussed due to time constraints. Council instructed staff to bring those items back for discussion at another work session. This packet includes the following: Appendix A - Amended Matrix of Issues. The amended matrix includes a list of proposed changes to address each of the remaining issues; the perceived positive and negative aspects of each proposed change; and the required action to implement each change. Each issue is numbered and the following information about each issue corresponds with the numbering in the matrix. The issues are generally organized in the order in which they appear in the proposed ordinances and the order of the appendices. Ordinance section numbers are listed in the "Required Action" field for ease of reference. Appendix B - Proposed Nuisance Ordinances. Staff drafted new ordinances and ordinance revisions that would be needed to implement most of the proposed changes. Appendix C - Lighting Standards. The Planning Department prepared an ordinance regulating outdoor lighting. It was developed in response to complaints about the adverse impact outdoor lighting can have on adjacent properties, especially when commercial development is adjacent to residential neighborhoods. This is an un- reviewed staff draft and is included for Council information as part of this comprehensive review of related issues. The following information provides greater detail about each issue listed in the matrix. Photographs have been included where appropriate to illustrate the property condition that the proposed action is designed to address. Declare Stagnant Water a Nuisance. Stagnant water presents an unsanitary appearance, with accompanying odor, and community concern has increased with the emergence of West Nile Virus. The current laws mandating the elimination of stagnant water require that the water contain a specific species of mosquito that requires testing and may not always be present. The proposed ordinance declares stagnant water a nuisance and provides an enforcement tool to require the abatement of such conditions like any other nuisance. (Section 20-71) 2. Require Correction of Conditions Resulting in Stagnant Water. With the exception of swimming pools, there is no ordinance under which property owners can be required to correct conditions that result in stagnant water unless it meets the criteria of State law. The proposed ordinance would require such correction, including the filling, draining or grading of the property or the disposal of trash and debris that collects and retains water. (Section 20-111) Fence Maintenance Requirements. Currently, there is no ordinance requiring a property owner to maintain a fence. The only avenue of redress is to wait for the fence to fall down and then treat it as trash and debris. The proposed ordinance would require owners or occupants to maintain a fence such that it is structurally sound and has no broken, loose, damaged, removed or missing parts. It also requires that the fence be repaired using material comparable to the original fence that is being repaired. (Section 20-114) Garage Sale Permits. The proposed ordinance would require a person to obtain a garage sale permit prior to conducting the sale. The permit would enable the City to monitor sales to ensure that garage sales are being held for the purpose intended; that they are infrequent and do not create a nuisance for a neighborhood; and provide information with which to locate individuals who display sale signs illegally or fail to remove them in a timely manner. (Section 20- 152) Limit on Garage Sale Signage. The proposed ordinance would allow only two signs on the premises where the sale is being held; limit the display of garage sale signs to the period of time between 6:00 a.m. on Friday to 8:00 a.m. on the following Monday; and limit the size of the sign to six square feet. (Section 20- 153(f-h)) Prohibit Parking on Lawns - Currently, there is no ordinance that prohibits vehicles from parking on unimproved surfaces. This is a source of complaints regarding the appearance of private properties. The proposed ordinance would prohibit individuals from parking vehicles an unimproved surface. (Section 20-165(a)) Prohibit On-Street Parking of Recreational Vehicles. There is no ordinance that prohibits recreational vehicles, including RV's, travel trailers, boats and campers, from parking on the street. These vehicles detract from the overall appearance of a street, create traffic congestion, and obstruct the view of passing motorists. The proposed ordinance would prohibit individuals from parking such recreational vehicles on public streets. It further prohibits parking vehicles in excess of eight feet six inches in width or 40 feet in length in any residential district. (Section 20-165(a)) Limit the Number of Cars for Sale. There is no ordinance that prohibits individuals from parking used cars for sale on privately owned parking lots or open spaces. These vehicles are often parked on the property without the property owner's knowledge. Additionally, most cars for sale are parked along major thoroughfares, considered gateways to the city, and significantly detract from the appearance of those areas. The proposed ordinance would limit to one the number of used cars that could be placed for sale on private property. While we do not believe that private property owners can be totally prohibited from parking cars for sale on their private parking lots, such activities have been limited through similar restrictions of location that apply to itinerant merchants, specifically that such vehicles must be parked at least 100 feet from the edge of the right-of-way or easement. In many locations, this requirement would place the vehicle either in the middle of a traffic aisle or so far from the adjacent thoroughfare that it would defeat the purpose of placing the vehicle there. The ordinance does not apply to legitimate used car sales businesses. (Section 20-163) Rental Inspection Program. The purpose of a rental inspection program is to ensure that the structure is safe for occupancy and to encourage, facilitate and mandate proper maintenance. Inspections would be performed by certified Building Inspectors and would include minimum structural standards related to plumbing and sewage disposal, electrical wiring, foundation and window screens, and those standards related to unsanitary conditions such as the presence of vermin or insects. The inspection schedule could be annual or upon re-leasing and could include single-family housing, multi-family housing, or both. The implementation of this program is projected to require three to six additional inspectors. A more detailed discussion is planned for a future meeting. 10. Substandard Housing. The Building Official identifies substandard housing. Currently, there is no funding allocated for the removal of substandard housing and CDBG funds are used for the removal of such structures. However, CDBG funds cannot be used if the house is occupied and there has been an overwhelming reluctance to force individuals from their homes in order to remove the structure. Staff recommends that a comprehensive program to address substandard housing be developed in a cooperative effort between all departments of interest, including Code Enforcement and Building Inspections. Such a program would require funding in lieu of, or in addition to, CDBG funds to eliminate restrictions that currently hinder the removal of such structures. Such a coordinated effort, sufficiently funded program would provide an opportunity to significantly improve the appearance of neighborhoods throughout the City. 11. Lighting Standards and Restrictions. Outdoor lighting serves a variety of purposes, including increasing safety and security, enhancing the character of an area, attracting business, and directing pedestrian and vehicular traffic. However, light that is extremely powerful or improperly placed can result in hazardous glare and the interference with others if it spills onto adjacent properties. Additionally, lighting can be a significant source of wasted energy. The City has received citizen complaints regarding outdoor lighting. In response, staff drafted an ordinance for the Development Code that would set criteria for the provision of lighting in public places where safety and security are concerns; for the control of disabling glare from non-vehicular light sources that interfere with the safe traverse of drivers and pedestrians; for the protection of neighboring properties from nuisance glare and stray light originating from poorly designed, aimed, shielded or applied light sources; and for the promotion of an efficient design and operation with regard to energy conservation. The intent is to employ a complaint-driven enforcement philosophy if the ordinance were adopted. However, if adopted, decisions would have to be made regarding which department would be responsible for its enforcement and funding would have to be allocated to provide for the purchase of light meters and training on those meters. Should direction be given to pursue adoption of the ordinance, staff can provide greater details regarding costs at that time. (See Appendix D) 12. Mowing/Litter/Right-of-Way Crew. Code Enforcement frequently faces situations where trash and debris is located on undeveloped land and along major city streets and highways. Voluntary owner compliance is rare, leaving the City to clear the trash and debris through employing the City contractor, using Code Enforcement employees, or using citizen volunteers. Additionally, there is no one City department responsible for clearing trash and debris or mowing rights-of- ways. In January 1987, a litter crew was established in the Solid Waste Department. It consisted of two full-time employees who cleared litter from the major City streets. Funding was not renewed in the 1998-99 budget because Keep Denton Beautiful (KDB) had amassed a sufficient number of volunteers working Adopt- a-Spots. However, in the Fall of 1999, the Texas Department of Transportation (TX DOT) notified KDB that volunteers and probationers could no longer be used to clean state-controlled roadways. There is neither sufficient funding nor sufficient staffing to adequately clean these areas on a consistent basis. 13. 14. Staff recommends serious consideration be given to the allocation of funding for a litter and/or mowing crew. This crew would provide sufficient staffing to clean properties in a more efficient and effective manner than is currently achieved. Additionally, the City of Lewisville reportedly pays TX DOT to mow the right- of-way and medians along 1-35 more often than the normal mowing schedule allows. If given direction to pursue this strategy, staff can prepare a formal budget request for submission in the 2005-06 budget. Livability Court. Cases related to nuisance ordinance violations are currently conducted in Municipal Court. Some jurisdictions have created special environmental or nuisance courts to hear Code Enforcement cases. These courts are established on the premise that the provision of a separate court with a separate judge gives such cases the emphasis and attention they deserve rather than having them lost among other, more serious, offenses. If directed to pursue this strategy, staff can conduct more thorough research and provide a formal recommendation, including costs, at a later time. Increased Administrative Fees. The current administrative fee is set at $80.00 and is charged to the violator when the City initiates abatement procedures in addition to the actual contractor fees that are set by competitive bid. The fee is designed to recover the costs of processing a case, from the initial complaint or observance to through invoicing of the owner for the abatement costs, including staff time, equipment and materials. The current fee is one of the lowest in the region and staff recommends increasing the fee to $125.00. Additionally, the fee is currently set in the ordinance itself. The proposed revision would provide for the setting of the fee through a separate ordinance as most fees are so that any future increases would not result in a change in the ordinance itself. (Section 20-134(b)) These proposed changes are submitted for Council consideration as examples of ordinances, processes and programs that are considered to be viable alternatives to those currently in place. These proposals have been developed from a review of ordinances, processes and programs throughout the region and are believed to be the best alternatives toward an improved effectiveness and efficiency. The City is currently participating in the development of code enforcement performance measurements. The project is sponsored by the North Central Texas Council of Governments and will include twelve to eighteen area cities. Over the next 24 weeks, the committee will analyze enforcement processes and determine methods that work best in gaining compliance; identify the necessary resources to achieve a successful program, including staff and associated costs; and develop industry standards with which to measure the efficiency and effectiveness of a code enforcement unit. In addition to the traditional code enforcement issues of grass and weeds, trash and debris and junked vehicles, the committee will be examining most of the issues that are presented in this report, including parking on lawns, vehicles for sale, trash placed out too early, oversized vehicles parked in residential areas, lighting, swimming pools and stagnant water, tree trimming, bulky items, overflowing dumpsters, rental property inspections, substandard structures and graffiti abatement. The committee report is scheduled for completion on March 4, 2005. If the Council chose to adopt any or all of the proposed ordinance or processes at this time, a review of those ordinances and processes could be reviewed in comparison with the committee report and revisions could be made at that time accordingly and consistent with budget requests for 2005-06. Respectfully submitted, Charles ~iley ~ Chief of Police Prepared by: Joanie Housewright Captain Operations Bureau ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS OF CHAPTER 20 BY CREATING ARTICLE V ENTITLED "FENCES"; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article V titled "Fences" of Chapter 20 of the Code of Ordinances of the City of Denton is hereby created and it shall read as follows: ARTICLE IV. FENCES Sec. 20-171. Definitions. Designee means the city manager or his duly appointed representative. Owner means any person or entity shown as the property owner on the latest property tax assessment rolls or any person having or claiming to have any legal or equitable interest in the property, including any agent who is responsible for managing, leasing or operating the property and including any tenant. Sec. 20-171. Maintenance of fences. (a) The owner of any property shall replace broken, damaged, removed or missing parts of a fence within ten (10) days of, the day the owner received notice from the designee, with the same material, or material with comparable composition, color, size, shape and quality of the original fence to which the repair is being made. The designee may, upon written notice from the owner that unusual circumstances prevent the timely repair of a fence, extend the replacement time as required. The designee shall not extend the replacement time longer than reasonable necessary. The owner requesting a replacement time extension shall provide the designee a written scope and schedule detailing materials and estimated time period of the completed replacement for approval. No person shall use materials not specifically manufactured as fencing materials such as plywood, corrugated steel panels, or fiberglass panels as fencing materials. (b) An owner shall maintain all fences in sound structural condition. (c) All owners shall maintain fences, including those existing prior to the adoption of this chapter, at all times in a state of good repair, safe and secure condition with all braces, bolts, nails, supporting frame and fastenings free from deterioration, termite infestation, rot, rust or loosening, and able to withstand at all times the wind pressure for which they were designed. (d) The construction of a fence or wall on the property line shall not preclude the property owner's responsibility to maintain and keep the area defined between the S:~POLICE\Agenda_ItemshAgenda Items\2004 Agenda Items\November, 2004\November 16th\Code Enforcement\2-ORD-Fences.doc property line to the back of the curb or edge of the pavement free and clear of debris and high weeds. Sec. 20-172. Abatement and notice procedures. The abatement and notice procedures provided for in Sections 20-131 through 20-134 shall apply to violations of this section and this article. Sec. 20-173. Proof requirements. Neither allegation nor evidence of a culpable mental state is required for the proof of an offense defined by this article. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 4. Any person found guilty of violating this ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per day. Each day that a provision of this ordinance is violated shall constitute a separate offense. SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of .,2004. ATTESTED: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: EULINE BROCK, MAYOR Page 2 of 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS OF CHAPTER 20 BY CREATING ARTICLE VII ENTITLED "GARAGE SALES"; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article VII titled "Garage Sales" of Chapter 20 of the Code of Ordinances of the City of Denton is hereby created and it shall read as follows: ARTICLE VII. GARAGE SALES Sec. 20-191. Definitions. Garage sale means the offering for sale of personal and/or household property belonging to or in the possession of the person conducting the sale. Garage sales' shall include yard sales', patio sales, sample sales', rummage sale, estate sales' or any similar casual sale of tangible personal property, which is advertised by any means whereby the public at large is or can be made aware of such sale. Sec. 20-192. Garage sale permits. It shall be unlawful for a person to have a garage sale without first obtaining a permit to conduct the sale from the city. Permits will only be issued to individuals who are residents of the City of Denton. The permit fee must be paid before a permit will be issued and the fee will be established by the city council and on file in the office of the city secretary. The permit must contain the name and address of the person conducting the sale. Sec. 20-193. Garage sale offenses. (a) It shall be unlawful to fail to display the garage sale permit on the premises where the garage sale is located for the entire duration of the permit. (b) It shall be unlawful to conduct more than two garage sales at the same address in any calendar year. (c) It shall be unlawful for any garage sales to exceed three consecutive days in duration. (d) It shall be unlawful to have garage sales on a premise where a garage sale was held within the previous thirty days. (e) It shall be unlawful to display more than two signs on the premises where the garage sale is to be conducted. S:~POLICE\Agenda_Items\Agenda Items\2004 Agenda Items\November, 2004\November 16th\Code Enforcement\2-ORD-GarageSale.doc (f) It shall be unlawful to display any signs relating to a garage sale at any time other than between 6:00 a.m. on Friday and 8:00 a.m. on Monday. (g) It shall be unlawful to display a garage sale sign that exceeds six square feet in size. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 4. Any person found guilty of violating this ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per day. Each day that a provision of this ordinance is violated shall constitute a separate offense. SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ___ day of .,2004. ATTESTED: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: EULINE BROCK, MAYOR Page 2 of 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ESTABLISHING FEES TO BE CHARGED FOR GARAGE SALE PERMITS AS PROVIDED FOR IN SECTION 20-192 OF ARTICLE VII OF CHAPTER 20 "NUISANCES" OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton deems it in the public interest to create a fee for alarm system permits; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby establishes the following fees to be charged for alarm permits pursuant to Section 20-192 of the Code of Ordinances: A garage sale permit fee ofTen Dollars ($10.00). SECTION 2. That a copy of this schedule of fees and charges shall be maintained on file in the office of the City Secretary. SECTION 3. That all ordinance or parts of ordinance in force when the provisions of this ordinance become effective which are inconsistent or in conflict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 4. That if any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, the City Council of the City of Denton, Texas, hereby declares that they would have enacted such remaining portions despite any such invalidity. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of _, 2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: S: POLICE Agelda ltems Agelda ltems 2004 Agelda ltmlls Nox mllb~, 2004 Nox mllb~ 16th Code Enforcmllent 20RD GarageSaleP~mitFees doc APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS OF CHAPTER 20 BY CREATING ARTICLE VI ENTITLED "CERTAIN PARKING REGULATIONS"; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION t. Article VI titled "Certain Parking Regulations" of Chapter 20 of the Code of Ordinances of the City of Denton is hereby created and it shall read as follows: ARTICLE VI. CERTAIN PARKING REGULATIONS Sec. 20-181. Parking for certain purposes. No person shall park a vehicle upon any street in the city for the purpose of: (t) Displaying such vehicle for sale; (2) Washing, greasing or repairing such vehicle, except repairs necessitated by an emergency; (3) Advertising or soliciting business; or (4) Selling merchandise from such vehicle. Sec. 20-182 Vehicles for Sale. (a) No person may have or allow more than one used vehicle for sale on private property. (b) No vehicle for sale may be on any fight-of-way or easement nor may any vehicle for sale be within tOO feet of the fight-of-way or easement. (c) Subsection (b) shall not apply if the vehicle for sale is parked on the improved portion of the residential property. (d) This section shall not apply to any new or used car dealerships provided that the car dealership is in compliance with all state laws and city ordinances. Sec. 20-183. Parking not to obstruct traffic. (a) No person shall park any vehicle upon a street, other than an alley, in such a manner or under such conditions as to leave available less than ten (t0) feet of the width of the roadway free for the movement of vehicular traffic. S:~POLICE\Agenda_ItemshAgenda Items\2004 Agenda Items\November, 2004\November 16th\Code Enforcement\2-ORD- RecreationalC onm~ercialVehicleParking.do c (b) No person shall park any vehicle upon the street in any manner so as to obstruct the loading or unloading of any solid waste container. Sec. 20-184. Parking nuisances. (a) Parking regulations. It is a nuisance and shall be deemed illegal for any person to park in violation of the following provisions: It shall be unlawful for a person to park or store or allow another to park or store any vehicle in excess of eight feet six inches in width or 40 feet in length, including recreational vehicles, travel trailers, boats or boat trailers, in any residential zoned district. (2) It shall be unlawful for a person to park or store or allow another to park or store a recreational vehicle, travel trailer, boat or boat trailer on a public thoroughfare in any residential zoned district. (3) It shall be unlawful for a person to park or store or allow another to park or store a vehicle in the front yard of any property, upon any surface other than an improved surface. (4) It shall be unlawful for any person to park or store or allow another to park or store a vehicle in the side yard or in the rear yard of any lot, upon any surface other than an improved surface unless such vehicle is concealed from view from all points along public street and alleys by a solid, opaque fence or wall providing full screening from the ground to a minimum height of six feet; or It shall be unlawful for any owner of a residential lot to allow a driveway, improved parking surface or combination of the two to cover more than 50 percent of the front yard of the lot. (6) It shall be unlawful for any person to park or store or allow another park or store a vehicle on any unimproved lot, easement, or right-of-way. (7) It shall be unlawful to use a vehicle for living or sleeping quarters, or for the storage of trash, debris or personal property not normally associated with the vehicle. (b) Maintenance of improved parking surface. It shall be unlawful for any person to fail to maintain all improved parking surfaces in good and safe condition, and free of any defects affecting the use, safety, appearance or drainage of the surface or of the adjoining property. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. Page 2 of 3 S:~POLICE\Agenda_ItemskAgenda Items\2004 Agenda Items\November, 2004\November 16th\Code Enforcement\2-ORD- RecreationalC onm~ercialVehicleParking.do c SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 4. Any person found guilty of violating this ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per day. Each day that a provision of this ordinance is violated shall constitute a separate offense. SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of .,2004. ATTESTED: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: Page 3 of 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS OF CHAPTER 20 BY CREATING ARTICLE IV ENTITLED "ENVIRONMENTAL NUISANCES"; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article IV titled "Environmental Nuisances" of Chapter 20 efthe Code of Ordinances of the City of Denton is hereby created and it shall read as follows: ARTICLE IV. ENVIRONMENTAL NUISANCES Sec. 20-151. Stagnant water. (a) It shall be unlawful and considered a public nuisance for any person owning, leasing or occupying real property, within the limits of the City of Denton, to permit or allow the accumulation or pending of standing, stagnant or non-maintained water thereon or permit the same to remain, which may harbor or be a breeding ground for mosquitoes, flies, or other pests or which may cause a foul odor or adversely impact the public health and safety by any means. Accumulations or pending of water shall not exceed a 48 hour period under normal rain conditions as described by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration National Weather Service (NOAA). (b) It shall be unlawful for any person, owner, agent, occupant or anyone having supervision or control of any real property within the city to maintain a public nuisance as determined under this section. (c) It shall be the duty of said persons to abate nuisances described in this article by: Draining, filling or re-grading any lots, ground, or yards which have standing or stagnant water thereon; or (2) Treating the area with material, either natural or man-made that will eliminate any offensive odor and render the area harmless to the public health and eliminate the potential breeding ground for mosquitoes, flies, or other pests. (d) It shall be the duty of said persons to maintain items that are capable of collecting water including but not limited to birdbaths, fountains, reflecting pools or ponds, private or semi-private swimming pools or other items so that they cannot harbor or be a breeding ground for mosquitoes, flies, or other pests or which may adversely impact the public health and safety or create an odor nuisance. S:~POLICE\Agenda_ItemskAgenda Items\2004 Agenda Items\November, 2004\November 16th\Code Enforcement\2-ORD-Stagma~tWater.doc Sec. 20-152. Abatement and notice procedures. The abatement and notice procedures provided for in Sections 20-131 through 20-134 shall apply to violations of this section and this article. Sec. 20-153. Proof requirements. Neither allegation nor evidence of a culpable mental state is required for the proof of an offense defined by this article. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 4. Any person found guilty of violating this ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per day. Each day that a provision of this ordinance is violated shall constitute a separate offense. SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of .,2004. ATTESTED: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: Page 2 of 2 APPENDIX C UNREVIEWED DRAFT LIGHTING STANDARDS BACKGROUND. image is just as important during the night as during the e, both during day (left) and at night (right). Outdoor lighting at night is used to increase safety, enhance the city's nighttime character, and provide security. Primarily, it must promise immediate good vision and orientation so that an area is usable and safe at night. By means of placement and intensity, lighting is also used to guide pedestrian and vehicular movement and highlight areas where traffic conflicts. In addition to these basic utilitarian functions lighting is also used for architectural emphasis and effect, to attract business, and to give a site a particular "personality". In many urban environments, the use of buildings and monuments as markers or reference points is important for clarity and visual orientation. Some features when properly illuminated, may serve as "points of arrival" for neighborhood residents. The streetscape or pedestrian spaces should appear consistent, be permanent and well integrated. The visual day (see fig. 1) All area lighting, whatever its immediate function, has the ultimate purpose of providing visibility, which is a different, more subtle, more complex concept than mere illumination. Mere illumination by extremely powerful and improperly installed lighting can have four negative factors, and they are 1. Glare Glare is the sensation produced by a luminance that is greater than the luminance to which our eyes are adapted and hence it causes annoyance, discomfort or loss of visual performance and visibility. 2. Light Trespass Light Trespass, also known as Spill Light, occurs whenever light shines beyond the intended target and onto adjacent properties. 3. Uplight Uplight is the light that goes directly into the night sky and is "lost in space" and serves no useful purpose. Such atmospheric scattering of light brightens the night sky, making distant celestial light sources difficult to see. 4. Excessive lighting Excessive lighting results when light levels exceed that needed for the task. It is caused usually from an unexamined "more is better" philosophy, or motives such as businesses to outshine their competitors. There are some other complex terms in outdoor lighting, which needs further explanation. Luminance: Luminance is what an observer sees, whether it is the light reflected from a wall (surface luminance) or the light reflected from a luminaire (luminaire luminance). Lighted outdoor horizontal surfaces such as lighted outdoor roadways, bikeways, sidewalks, and parking lots exhibit horizontal surface luminance. Lighted outdoor vertical surfaces such as people, building facades, structures, statues, and landscape features such as trees exhibit vertical surface luminance. Surface luminance of all types adds interest and depth to outdoor scenes and is necessary for visibility and security. The proper lighting of surfaces is the foundation of a good lighting design. Luminaire luminance is derived from the light-emitting portion of the lamp. In order to minimize glare and provide a pleasant environment, luminaire luminance in the normal field of view should be avoided. Illuminance: Illuminance is a measure of incident light (in lux or footcandles), technically described as flux density per unit area. Illuminance plays an important role in determining light trespass potential. Brightness: Often, there is confusion between the terms "brightness" and "luminance". Brightness is affected by the environment in which the luminaire resides. As the background luminance of a scene gets higher, the apparent brightness of a luminaire becomes lower. Viewing car headlights during the daytime is a good example of a situation involving high luminance but Iow brightness. People associate more light or brighter light with "safer" surrounds. But in reality, this may cause a loss of visibility. A better approach is to light vertical surround surfaces (trees, building facades, or other area features) so that these surfaces can reflect light onto people. Quality outdoor lighting should communicate visual order, orientation, and urban character. The height and location of poles, and the size and shape of equipment all contribute to the lighting hierarchy (see Fig. 2). Even the placement of equipment and source color should help determine much of the environment's visual character after dark. right and location of poles contributes to the hierarchy of ng equipment along this street in Kansas I. PURPOSE. This ordinance sets forth criteria for the following: 1. The provision of lighting in public places where safety and security are concerns. 2. The control of disabling glare from non-vehicular light sources that shine into driver's and pedestrian's eyes and thereby impair safe traverse. 3. The protection of neighboring properties from nuisance glare and stray light from poorly designed, aimed, placed, shielded or applied light sources. 4. The promotion of efficient design and operation with regard to energy conservation. II. DEFINITIONS Abandoned: Abandoned means fo cease or suspend from developing or maintaining a building or use. Activity Areas: Depending upon the intensity of use, all non-residential uses are categorized into high, medium and Iow activity areas. · High activity, e.g. regional shopping centers/fast food, facilities and major athletic/civic/cultural events. · Medium activity, e.g. community shopping centers, office parks, hospitals, commuter lots, cultural/civic/recreational events. · Low activity, e.g., neighborhood shopping, industrial employee parking, schools, church parking. Average Footcandle: The level of light, which is the average of all illumination points on a site. Canopy Structure: Any overhead protective structure, which is constructed in such a manner as to allow pedestrians/vehicles to pass under. Fixture: The assembly that houses the lamp or lamps and can include all or some of the following parts: a housing, a mounting bracket or pole socket, a lamp holder, a ballast, a reflector or mirror, and/or a refractor or lens. Floodlight or Spotlight: Any light fixture or lamp that incorporates a reflector or refractor to concentrate the light output into a directional beam. Floodlight has a wide beam, whereas spotlight has a narrow beam. Foofcondle (lc): A unit of measure for luminance. A unit of luminance on a surface that is everywhere one foot from a uniform E)oint source of liaht of one candle and equal to one lumen per square foot Full cut off type fixture: A luminaire or light fixture that; by design of the housing, does not allow any light dispersion or direct glare to shine above 90 degree, horizontal plane from the base of the fixture (see Fig. 3). And all full-cutoff t',/pe luminaries shall be Fully shielded lights: The outdoor light fixtures shielded or constructed so that no light rays are emitted by the installed fixture at angles above the horizontal plane as certified by a Fig. 3: Full C uto~ Height of Luminaire: The height of a luminaire shall be the vertical distance from the ground directly below the centerline of the luminaire to the lowest direct-light-emitting part of the luminaire. Lamp: The component of the luminaire that produces the actual light including luminous tube lighting Lumen: A unit of luminous flux. One footcandle is one lumen per square foot. For the purposes of this Ordinance, the lumen-output values shall be the INITIAL lumen output ratings of a lamp. Luminaire: This is a complete lighting system, and includes a lamp or lamps and a fixture. Nuisance: Nuisance means something, which annoys or gives trouble and vexation; that which is offensive or noxious. Nuisance glare is that which causes complaints such as: "the light is shining in my window". Public lighting: Outdoor light fixtures located on property owned, leased, or controlled by the City or other governmental entity or entities, including but not limited to streets, highways, alleys, easements, parking lots, parks, playing fields, schools, institutions, meeting places, and all entities completely or partly funded by grants obtained by the City or its agents from Federal, State or private sources. Recessed: When a light is built into a structure or portion of a structure such that the light source is fully contained within the structure and no part of the light source extends or protrudes beyond the underside of a structure or portion of a structure. Sag-lens or drop-lens: A clear or prismatic refracting lens that extends below the lowest opaque portion of a light fixture. Searchlight: A light fixture having a narrow beam intended fo be seen in the sky. Securih/Lighting: Security lighting is defined as lighting designed and used to discourage crime and undesirable activity. If should use the lowest possible illumination fo effectively allow surveillance. Settings: Background luminance of a scene, usually referred either as dark or light settings. Where the background luminance if high (a light setting), there is a Iow contrast hence the illumination level required is higher than in a darker setting. Shielded: When the light emitted from the fixture is projected below a horizontal plane running through the lowest point of the fixture where light is emitted. The lamp is not visible from outside the fixture with a shielded light fixture, and no light is emitted above the horizontal plane of the fixture. Also considered as a full cut-off fixture. Temporary outdoor lighting: Lighting that is intended fo be used for a special event for seven (7) days or less. Uplighting: Lighting that is directed in such a manner as to emit light rays above the horizontal plane. Uniformity Ratio: (U. Ratio) describes the average level of illumination in relation to the lowest level of illumination for a given area. Example: U. Ratio =4:1 for the given area, the lowest level of illumination should be no less than 25% or "4 time less" than the average level of illumination. Wallpack: A floodlight mounted on the wall of a building or other structure. iii. APPLICABILITY. 1. New Non-residential and Multi-family Uses, Buildings, and Major Additions or Modifications For all proposed new non-residential and multi-family land uses, developments, buildings, and structures that require a permit including building permits and electrical permits, all outdoor lighting fixtures shall meet the requirements of this Code. All building additions or modifications of twenty-five (25) percent or more in terms of additional dwelling units, gross floor area, or parking spaces, either with a single addition or with cumulative additions subsequent to the effective date of this provision, shall invoke the requirements of this Code for the entire property, including previously installed and any new outdoor lighting. Cumulative modification or replacement of outdoor lighting constituting twenty-five (25) percent or more of the permitted lumens for the parcel, no matter the actual amount of lighting already on a no-conforming site, shall constitute a major addition for purposes of this section. 2. Minor Additions Additions or modifications of less than twenty-five (25) percent to existing non-residential and multi-family land use and/or structures, and that require a permit, shall require the submission of a complete inventory and site plan detailing all existing and any proposed new outdoor lighting. Any new lighting on the site shall meet the requirements of this Code with regard to shielding and lamp type; the total outdoor light output after the modifications are complete shall not exceed that on the site before the modification, or that is permitted by this Code, whichever is larger. 3. Resumption of Use after Abandonment If a structure or use with non-confirming lighting has been abandoned for a continuous period of one (1) year or more, then all outdoor lighting shall be brought into compliance with this Code before the use is resumed. 4. Existing Non-Confirming Lights Luminaries installed prior to the adoption of the ordinance shall be re-aimed or shielded such that the fixture no longer creates a nuisance as defined in Section II- Nuisance. Shielding may be accompanied by louvers, baffles, visors, or shields placed on the luminaries, or any other method whereby the light therefrom does not constitute a nuisance. 5. Exemptions The following are exempt from the lighting requirements of this section, except that the Building Official may take steps to eliminate the impact of the exempted items when deemed necessary to protect the health, safety and welfare of the public: a. Holiday Decorations. Holiday lights in the nature of decorations, clearly incidental and customary and commonly associated with any national, local or religious holiday provided that such lights shall be illuminated for a period of not more than sixty (60) consecutive days in one year. Holiday lights may be of any type, AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: November 16, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - SI04-0036 (SUP for Multi-family) Hold a Planning and Zoning Commission and City Council join public hearing to consider zoning amendments to the Denton Development Code affecting multi-family development, including without limitation requiring Specific Use Permits for all Multi-Family Development in the City of DeNon. BACKGROUND ApplicaN: City of DeNon, DeNon TX On September 20, 2004 City Council directed staff to proceed with amendments to the DevelopmeN Code (AttachmeN 1) that would include requiring a Specific Use Permit (SUP) for all multi-family developmeN. The DevelopmeN Code allows multifamily by right (or with a limitation unrelated to a special use permit) in the following zoning categories: · Neighborhood ResideNial Mixed Use 12 (NRMU-12) · DowNown ResideNial 2 (DR-2) · DowNown Commercial Neighborhood (DC-N) · DowNown Commercial General (DC-G) · Community Mixed Use General, (CM-G) · Community Mixed Use EmploymeN (CM-E) · Regional CeNer ResideNial 1 (RCR-1) · Regional CeNer ResideNial 2 (RCR-2) · Regional CeNer Commercial Neighborhood (RCC-N) · Regional CeNer Commercial DowNown (RCC-D) Were the Council to adopt the proposed text amendment, all multi-family development proposed in these districts would require an approved SUP. Direction is sought concerning the potential creation of non-conforming uses, in cases where apartmeNs already exist, and in determining at what poiN in the developmeN process this proposed amendmeN would apply to projects already in progress. For example, should this amendmeN apply to projects receNly rezoned to allow multiple family projects? Should the automatic special exception set forth in Sub-Chapter 11 of the DevelopmeN Code be amended to apply to all existing (built) multiple family projects? Multifamily is not allowed in the following zoning categories: · Rural Residential (RD-5) · Neighborhood Residential 1 (NR-1) · Neighborhood Residential (NR-2) · Neighborhood Residential 3 (NR-3) · Neighborhood Residential 4 (NR-4) · Neighborhood Residential 6 (NR-6) · Downtown Residential 1 (DR-l) · Employment Center Commercial (EC-C) · Employment Center industrial (EC-i) · industrial Center Employment (lC-E) · industrial Center General (lC-G) Additionally, the following two zoning categories now require approval of an SUP: · Rural Commercial (RC) · Neighborhood Residential Mixed Use (NRMU) No changes to these zoning categories are proposed. ESTIMATED PROJECT SCHEDULE November 18, 2004 - Joint City Council and Planning and Zoning Commission work session. December 1, 2004 - Planning and Zoning Commission consideration and recommendation. PRIOR ACTION/REVIEW September 20, 2004 - City Council Work Session. October 13, 2004 - Planning and Zoning Commission Public Hearing FISCAL INFORMATION The SUP requirement will require additional time and "upfront" cost for preparation of required plans (Attachment 1) for developers proposing to develop multi-family developments. ATTACHMENTS 1. Staff'Analysis 2. Sub-chapter 5 of the Development Code. Prepared by: ~A~rry R~_~ha~; RLA, ssista~t Director of Planning and Development Prepared by and respectfully submitted, Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Summary_ of Request Staff Analysis The following tables are from Subchapter 5 of the Development Code and reflect the results of the proposed amendment. The highlighted categories identify the ten zoning districts that would be modified by the proposed requirement for a Specific Use Permit (SUP). N Multi-Family Dwellings N SUP SUP L(4) Multi-Family Dwellings Multi-Family Dwellings N Multi-Family Dwellings N N P-- Permitted, N--not permitted, SUP-- S ~ecific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 35.5.8 Limitations The following define the limitations to zoning uses when the zoning matrix identify a use as permitted, but limited L(4) = Permitted as part of a mixed use development of ten (10) acres or more and only in conjunction with office, retail or other permitted commercial or institutional uses. L(5) = Within this district the density of apartments will be calculated as one bedroom equating to .5 units. L(6) = Permitted only on 2nd story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. Specific Use Permit Requirements: Subchapter 35.6 (Specific Uses) idemifies the requiremems and procedures for approval of Specific Use Permits. Listed below are the plan requirements, approval criteria and conditions of approval. 35.6.4 A. Bo Plan Requirements. A plan is required to be submitted for all Specific Use Permit applications in accordance with the Application Criteria Manual. An application for a Specific Use Permit may, but need not be, made concurrently with any required application for site design review under Subchapter 13. 35.6.5 Approval Criteria. A Specific Use Permit may be grained if the City Council finds that the proposed use conforms, or can be made to conform through the imposition of conditions, with the following approval criteria. A. That the use would be in conformance with all standards within the zoning district in which the use is proposed to be located, and in conformance with The DeNon Plan and federal, state, or local law. B. A specific permit shall be issued only if all of the following conditions have been found. 1. That the specific use will be compatible with and not injurious to the use and enjoymem of other property nor significamly diminish or impair property values within the immediate vicinity. 2. That the establishment of the specific use will not impede the normal and orderly developmem and improvemem of surrounding vacam property; 3. That adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; 4. The design, location and arrangemem of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacem developmems; 5. That adequate nuisance prevention measures have been or will be taken to prevent or comrol offensive odor, fumes, dust, noise and vibration; 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacem property. C. That adequate capacity of infrastructure can and will be provided to and through the subject property. D. That the Special Use is compatible with and will not have an adverse impact on the surrounding area. When evaluating the effect of the proposed use on the surrounding area, the following factors shall be considered in relation to the target use of the zone: 1. Similarity in scale, bulk, and coverage. 2. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. 3. Architectural compatibility with the impact area. 4. Air quality, including the generation of dust, odors, or other environmemal pollutams. 5. Generation of noise, light, and glare. 6. The developmem of adjacem properties as envisioned in The DeNon Plan. 7. Other factors found to be relevant to satisfy the requirements of this Chapter. 35.6.6 Conditions. The conditions which the approval authority may impose include, but are not limited to the following. These conditions are in addition to the standards required in this Chapter. A. Regulation and limitation of uses. B. Regulation of setbacks and spacing. C. Regulation of fences and walls. D. Requirement to submit a Development Plat, to insure the proper dedications and public improvements are made. E. Regulation limiting the magnitude of traffic generated. F. Regulation ofpoims of vehicular and pedestrian ingress and egress. G. Regulation of signs. H. Regulation of building materials, textures, colors and architectural features. I. Regulation of landscaping, including screening and buffering where necessary to increase compatibility with adjoining uses. J. Regulation of noise, vibration, dust, odors or similar nuisances. K. Regulation of hours of operation and the conduct of certain activities. L. Regulation of the period of time within which the proposed use shall be developed. M. Regulation of the duration of use. N. Regulation of any Environmemally Sensitive Areas as allowed under Subchapter 17. O. Regulation of any site development condition permitted by Subchapter 13. P. Such other conditions as will make possible the developmem of the City in an orderly and efficient manner and in accordance with the provisions of this Chapter that are reasonable. ATTACHMENT 2 Subchapter 24 Development Code Subchapter 5 - Zoning Districts and Limitations 35.5.1 Rural Districts Sections: 35.5.1.1 Purpose. 35.5.1.2 Permitted Uses. 35.5.1.3 General Regulations. 35.5.1.1 Purpose. The purpose of a Rural District is to maintain an area of rural use within the City of Denton. Application of th/s district ~vill ensure that the farming, forest, environmental and sceaic values of these areas are protected from incompatible development that may result in a degradation of their values. Land Use categories xvithin a Rural District include: RD-5 Rural Residential RC Rural Commercial 35.5.1.2 Permitted Uses. The follo~ving uses and their accessory uses are permitted as contained in the use table belo~v: (Amended ()rd. No 2004-009 01/06/2004) Agriculture P P Livestock L(7) L(7) Single Family Dwellings P P Accessory Dwelling Units P P Attached Single Family Dwellings N N Dwellings Above Businesses N P Live/Work Units P P Duplexes N N Community Homes For the P P Disabled Group Homes SUP SUP MUl,i-FamilY BWeli . Manufactured Housing p p Developments P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-1 Subchapter 24 Development Code Home Occupation P P Sale of Products Grown on Site P P Hotels N N Motels N N Bed and Breakfast L(10) P Retail Sales and Service N N Movie Theaters N N Restaurant or Private Club N L(11 ) Drive-through Facility N N Professional Services and Offices N L(15) Quick Vehicle Servicing N N Vehicle Repair N P Auto and RV Sales N N Laundry Facilities N N Equestrian Facilities P P Outdoor Recreation P P Indoor Recreation N N Major Event Entertainment N SUP Commercial Parking Lots N N Administrative or Research Facilities SUP L(15) Broadcasting of Production Studio SUP P SUP/ Sexually Oriented Business N L(32) Temporary Uses L(38) L(38) P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 /lll Printing / Publishing N N Bakeries N L(21) Manufacture of Non-odoriferous N N Foods Feed Lots SUP N Food Processing N N SUP / Light Manufacturing N L(24) Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries P P Distribution Center N N Wholesale Storage and Distribution N N Self-service Storage N N Construction Materials Sales N N Junk Yards and Auto Wrecking N N Kennels L(14) L(14) Veterinary Clinics P P Sanitary Landfills, Commercial N N Incinerators, Transfer Stations Gas Wells L(27) L(27) P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Development Code 1-3 Subchapter 24 Development Code Basic Utilities P P Community Service N P Parks and Open Space P P Churches P P Semi-public, Halls, Clubs, and N P Lodges Business / Trade School N N Adult or Child Day Care P P Kindergarten, Elementary School P P Middle School N N High School N N Colleges N N Hospital N N Elderly Housing N N Medical Centers N N Cemeteries N N Mortuaries N N P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.1.3 General Regulations. General regulations within the Rural District are as £olloxvs: Subdivision of less than i 0 acres, and all lots that are adiacent to the perimeter of a subdivision: Minimum lot area 5 acres 2 acres Minimum lot width 200 feet 100 feet Minimum lot depth 250 feet 200 feet Minimum front yard 50 feet 50 feet Minimum side yard 10 feet 10 feet Minimum side yard adjacent to street 50 feet 50 feet 10 feet, plus 1 foot for each foot of Minimum rear yard building height over 20 feet The folloxving limits apply to subdMsion of more than 10 acres in lieu of minimum lot size and dinaension requirements: Maximum density, dwelling units per acre 0.2 0.5 Minimum building separation 30 feet 30 feet The following limits apply to all buildings: Maximum lot coverage except for 15% 35% agricultural buildings Minimum landscaped area 75% 65% Maximum building height 65 feet 65 feet Maximum FAR except for single-family None 0.25 uses 10 feet, plus 1 foot for Minimum yard when a use other than None each single family abuts a residential zone foot of building height Subchapter 24 Development Code Sections: 35.5.2.1 Purpose. 35.5.2.2 Permitted Uses. 35.5.2.3 General Regulations. 35.5.2.1 Purpose. The purpose of the Neighborhood Residential land use is to preserve and protect existing neighborhoods and to ensure that any new development is compatible with existing land uses, patterns, and design standards. Land Use categories witbSn the Neighborhood Residential areas include: 35.5.2.2 Permitted Uses. NR-1 NR-2 NR-3 NR-4 NR-6 NRMU- 12 NRMU Neighborhood Residenti~J i Neighborhood Residenti~J 2 Neighborhood Residenti~2 3 Neighborhood Residenti~2 4 Neighborhood Residenti~2 6 Neighborhood Residential Mixed Use i2 Neighborhood Residential Mixed Use The folloxving uses and their accessory uses are permitted xvith/n the Neighborhood Residential districts: (Amended ()rd. 2002-347 10/15/2002) Agriculture P P P P P P P Livestock L(7) L(7) L(7) L(7) L(7) L(7) L(7) Single Family Dwellings P P P P P P N SUP SUP SUP SUP SUP Accessory Dwelling Units L(1 ) L(1 ) L(1 ) L(1 ) L(1 ) L(1 ) N Attached Single Family Dwellings N N SUP SUP P P L(40) Dwellings Above Businesses N N N N N P P Live/Work Units N N N N L(16) P P Duplexes N N N L(3) P P N Community Homes For the Disabled P P P P P P P Group Homes N N N N N SUP SUP SUP Manufactured Housing Developments N SUP N N SUP N N 1-7 Subchapter 24 Development Code P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Home Occupation P P P P P P P Sale of Products Grown on Site N N N N N N N Hotels N N N N N N P Motels N N N N N N N Bed and Breakfast N N N N N L(IO) P Retail Sales and Service N N N N N L(15) L(17) Movie Theaters N N N N N N N Restaurant or Private Club N N N N N N L(11 ) Drive-through Facility N N N N N N SUP Professional Services and Offices N N N N N L(14) L(17) Quick Vehicle Servicing N N N N N N SUP Vehicle Repair N N N N N N N Auto and RV Sales N N N N N N N Laundry Facilities N N N N N P P Equestrian Facilities SUP SUP N N N N N Outdoor Recreation P P P P P SUP SUP Indoor Recreation N N N N N N N Major Event Entertainment N N N N N N N Commercial Parking Lots N N N N N N N Administrative or Research Facilities N N N N N N L(14) Broadcasting of Production Studio N N N N N N L(14) Sexually Oriented Business N N N N N N N Temporary Uses L(38) L(38) L(38) L(38) L(38) L(38) L(38) P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Subchapter 24 Development Code Printing / Publishing N N N N N N N Bakeries N N N N N N L(21 ) Manufacture of Non-odoriferous Foods N N N N N N N Feed Lots N N N N N N N Food Processing N N N N N N N Light Manufacturing N N N N N N N Heavy Manufacturing N N N N N N N Wholesale Sales N N N N N N N Wholesale Nurseries N N N N N N N Distribution Center N N N N N N N Wholesale Storage and Distribution N N N N N N N Self-service Storage N N N N N N N Construction Materials Sales N N N N N N N Junk Yards and Auto Wrecking N N N N N N N Kennels L(37) L(37) N N N N N Veterinary Clinics L(14) L(~4) N N N N P Sanitary Landfills, Commercial N N N N N N N Incinerators, Transfer Stations SUP SUP SUP SUP SUP Gas Wells L(27) L(27) L(27) L(27) L(27) L(27) L(27) P: Permitted, N:not permitted, SUP: Specific Use Permit Required, L(X): Limited as defined in Section 35.5.8 1-9 Subchapter 24 Development Code Basic Utilities L(25) L(25) L(25) L(25) L(25) L(25) L(25) Community Service N N N N N P P Parks and ©pen Space P P P P P P P Churches P P P P P P P Semi-public, Halls, Clubs, and Lodges SUP SUP SUP SUP SUP L(15) P Business / Trade School N N N N N N L(14) Adult or Child Day Care SUP SUP SUP SUP SUP P P Kindergarten, Elementary School SUP SUP SUP SUP SUP P P Middle School N N N N N P P High School N N N N N N SUP Colleges N N N N N N N Hospital N N N N N N N Elderly Housing N N N N SUP L(13) P Medical Centers N N N N N N P Cemeteries N N N N N N N Mortuaries N N N N N N N P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.2.3 General Regulations. General regulations of the Residential Neighborhood land use zone are contained in the table bdow: The following limits apply to subdMsion of 2 acres or less: Minimum lot area (square feet) 32,000 16,000 10,000 7,000 6,000 3,500 2,500 Minimum lot width 80 feet 80 feet 60 feet 50 feet 50 feet 30 feet 20 feet 8O Minimum lot depth 1 O0 feet 1 O0 feet 80 feet 80 feet fee 80 feet 50 feet 15 feet 20 feet Minimum front yard setback 20 feet 20 feet L(2) L(2) 10 feet 10 feet None Minimum side yard 6 feet 6 feet 6 feet 6 feet 6 feet 6 feet 6 feet Minimum side yard adjacent to a street 10 feet 10 feet 10 feet 10 feet 10 feet 10 feet None Minimum rear yard 10 feet 10 feet 10 feet 10 feet 10 feet 10 feet None The folloxving limits apply to subdMsion of more than 2 acres in lieu of minimum lot size and dinaension requirements: Maximum density, dwelling units per acre 1 2 3.5 4 6 12 30 Minimum side yard for non-attached 20 feet 10 feet 6 feet 5 feet 4 feet 10 feet 12 feet buildings The folloxving limits apply to all buildings: Maximum lot coverage 30% 30% 50% 60% 60% 60% 80% Minimum landscaped area 70% 70% 55% 40% 40% 40% 20% Maximum building height 40 feet 40 feet 40 feet 40 feet 40 feet 40 feet 65 feet 10 feet 10 feet 10 feet 10 feet 10 feet 15 feet 20 feet plus 1 plus 1 plus 1 plus 1 plus 1 plus 1 plus 1 foot for foot for foot for foot for foot for foot for foot for each each each each each each each Minimum yard when abutting a single- foot of foot of foot of foot of foot of foot of foot of family use or district building building building building building building building height height height height height height height above above above above above above above 20 feet 20 feet 20 feet 20 feet 20 feet 20 feet 20 feet 1-11 Subchapter 24 Development Code Sections: 35.5.3.1 Purpose. 35.5.3.2 Permitted Uses. 35.5.3.3 General Regulations. 35.5.3.1 Purpose. The purpose of the Do~vnto~vn University Core District is to encourage mixed use developments ~vithin specified commercial areas of the district. This district is a pedestrian friendly district. Land Use categories within this district include: DR-1 DR-2 DC-N DC-G Doxvntoxvn Residenti~J 1 Doxvntoxvn Residential 2 Downtown Commercial Neighborhood Downtown Commercial General 35.5.3.2 Permitted Uses. The folloxving uses are permitted xvithin the Doxvntoxvn University Core District: (Amended ()rd 2002-348 10/15/2002) Agriculture P P P P Livestock L(7) L(7) L(7) L(7) Single Family Dwellings P P N N Accessory Dwelling Units P P N N Attached Single Family Dwellings N P P P Dwellings Above Businesses N P P P Live/Work Units P P P P Duplexes P P P N Community Homes For the Disabled P P P P Group Homes N N N SUP ~UP ~UP ~U~ Manufactured Housing Developments N N N N P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-13 Subchapter 24 Development Code Home Occupation P P P P Sale of Products Grown on Site N N N N Hotels N N N P Motels N N N N Bed and Breakfast L(8) L(9) P P Retail Sales and Service N L(15) L(17) P Movie Theaters N N SUP SUP Restaurant or Private Club N N L(11 ) P Drive-through Facility N N N SUP Professional Services and Offices N L(15) L(17) P Quick Vehicle Servicing N N N SUP Vehicle Repair N N N SUP Auto and RV Sales N N N L(20) Laundry Facilities N P P P Equestrian Facilities N N N N Outdoor Recreation N N N N Indoor Recreation N N N P Major Event Entertainment N N N SUP Commercial Parking Lots N N L(28) L(28) Administrative or Research Facilities N SUP L(14) P Broadcasting of Production Studio N SUP P P Sexually Oriented Business N N N N Temporary Uses L(38) L(38) L(38) L(38) P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code Printing / Publishing N N N P Bakeries N N L(21) P Manufacture of Non-odoriferous Foods N N N N Feed Lots N N N N Food Processing N N N N Light Manufacturing N N N N Heavy Manufacturing N N N N SUP/ Wholesale Sales N N N L(36) SUP/ Wholesale Nurseries N N N L(36) Distribution Center N N N N Wholesale Storage and Distribution N N N N Self-service Storage N N N N Construction Materials Sales N N N N Junk Yards and Auto Wrecking N N N N Kennels N N N N Veterinary Clinics N SUP L(26) P Sanitary Landfills, Commercial N N N N Incinerators, Transfer Stations SUP SUP SUP SUP Gas Wells L(27) L(27) L(27) L(27) P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-15 Subchapter 24 Development Code Basic Utilities SUP SUP SUP SUP Community Service N N P P Parks and Open Space P P P P Churches P P P P Semi-public, Halls, Clubs, and Lodges P P P P Business / Trade School N N L(26) P Adult or Child Day Care P P P P Kindergarten, Elementary School P P P N Middle School N P P N High School N N N N Colleges N N SUP P Hospital N N P P Elderly Housing N N L(13) P Medical Centers N SUP P P Cemeteries N N N N Mortuaries N N P P P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.3.3 General Regulations. General regulations of the Do~vnto~vn University Core District are as follo~vs: Minimum lot are (square feet 4,000 4,000 2,500 None Minimum lot width 50 feet 40 feet 20 feet None Minimum lot depth 80 feet 80 feet 50 feet None Minimum front yard setback 10 feet 10 feet None None Minimum side yard 6 feet 6 feet None None Minimum side yard adjacent to a street 10 feet 10 feet None None Minimum rear yard 10 feet 10 feet None None 10 feet 10 feet 15 feet 20 feet plus 1 plus 1 plus 1 plus 1 foot for foot for foot for foot for each each each each Minimum yard abutting a single family foot of foot of foot of foot of use or district building building building building height height height height over 30 over 30 over 30 over 30 feet feet feet feet Minimum residential unit size 700 SF 500 SF 500 SF 500 SF Maximum FAR 0.50 0.75 1.5 3.0 Maximum density, dwelling units per acre 8 30 72 150 Maximum lot coverage 60% 75% 80% 85% Minimum landscaped area 40% 25% 20% 15% 100 feet/ 100 feet/ Maximum building height 40 feet 45 feet L(33) L(33) 1-17 Subchapter 24 Development Code Sections: 35.5.4.i Purpose. 35.5.4.2 Permitted Uses. 35.5.4.3 General Regulations. 35.5.4.1 Purpose. The purpose of the Community Nixed Use Centers is to provide the necessary shopping, services, recreation, employment and institution~J facilities that are required and supported by the surrounding community. Land Use categories within the Community Nixed Use Centers include: CM-G Community Mixed Use General CM-E Community Mixed Use Employment 35.5.4.2 Permitted Uses. The following uses are pemaitted within Community Nixed Use Centers: Agriculture P P Livestock L(7) L(7) Single Family Dwellings N N Accessory Dwelling Units N N Attached Single Family Dwellings N N Dwellings Above Businesses P N Live/Work Units P N Duplexes N N Community Homes For the Disabled P P Group Homes N N ~UP Manufactured Housing Developments N N P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-19 Subchapter 24 Development Code Home Occupation N N Sale of Products Grown on Site N N Hotels P P Motels P P Bed and Breakfast P N Retail Sales and Service P L(14) Movie Theaters SUP N Restaurant or Private Club P L(14) Drive-through Facility P P Professional Services and Offices P P Quick Vehicle Servicing P P Vehicle Repair P P Auto and RV Sales P P Laundry Facilities P P Equestrian Facilities N N Outdoor Recreation P N Indoor Recreation P P Major Event Entertainment SUP N Commercial Parking Lots P P Administrative or Research Facilities P P Broadcasting of Production Studio P P Sexually Oriented Business N N Temporary Uses L(38) L(38) P= Perm/tted, N=not perm/tted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Subchapter 24 Development Code Printing / Publishing P L(25) Bakeries P L(25) Manufacture of Non-odoriferous Foods N L(25) Feed Lots N N Food Processing N N Light Manufacturing N N Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries N N Distribution Center N N Wholesale Storage and Distribution N N Self-service Storage N N Construction Materials Sales N N Junk Yards and Auto Wrecking N N Kennels N N Veterinary Clinics P P Sanitary Landfills, Commercial N N Incinerators, Transfer Stations SUP SUP Gas Wells L(27) L(27) P: Permitted, N:not permitted, SUP: Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-21 Subchapter 24 Development Code Basic Utilities SUP SUP Community Service P P Parks and Open Space P P Churches P P Semi-public, Halls, Clubs, and Lodges P P Business / Trade School P P Adult or Child Day Care P N Kindergarten, Elementary School N N Middle School N N High School N N Colleges P P Hospital N N Elderly Housing N N Medical Centers P P Cemeteries N N Mortuaries P P P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.4.3 General Regulations. General regulations of the Commurfity Mixed Use Centers are in the table below: Minimum lot area (square feet) 2,500 2,500 Minimum lot width 50 feet 50 feet Minimum lot depth 50 feet 50 feet Minimum front yard setback None 10 feet Minimum side yard None None Minimum side yard adjacent to a street None 10 feet 20 feet, plus 1 foot for each Minimum yard abutting a residential use 20 feet foot of or district building height above 30 feet Maximum FAR 1.5 0.75 Minimum residential unit size 500 SF None Maximum lot coverage 80% 85% Minimum landscaped area 20% 15% Maximum building height 65 feet 65 feet 1-23 Subchapter 24 Development Code Sections: 35.5.5.i Purpose. 35.5.5.2 Permitted Uses. 35.5.5.3 General Regulations. 35.5.5.1 Purpose. The purpose of Re~onal Mixed Use Centers is to create centers of activity including shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. Land Use categories with/n 35.5.5.2 Re~onal MSxed Use Centers include: RCR-i RCR-2 RCC-N RCC-D Permitted Uses. Re~onal Center Residential 1 Re~onal Center Residential 2 Re~onal Center Commercial Neighborhood Regional Center Commercial Doxvntoxvn The folloxving uses are permitted xvitNn Regional M/xed Use Centers: Agriculture P P P P Livestock L(7) L(7) L(7) L(7) Single Family Dwellings N N N N Accessory Dwelling Units N N N N Attached Single Family Dwellings P P P P Dwellings Above Businesses P P P P Live/Work Units P P P P Duplexes N N N N Community Homes For the Disabled P P P P Group Homes SUP SUP SUP SUP Manufactured Housing Developments N N N N P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-25 Subchapter 24 Development Code Home Occupation P P P P Sale of Products Grown on Site N N N N Hotels N N P P Motels N N P N Bed and Breakfast L(8) L(9) L(9) P Retail Sales and Service L(17) L(17) L(13) P Movie Theaters SUP SUP P P Restaurant or Private Club L(11 ) L(11 ) P P Drive-through Facility N N P P Professional Services and Offices L(15) L(14) L(14) P Quick Vehicle Servicing N N P P Vehicle Repair N N N P Auto and RV Sales N N N P Laundry Facilities P P P P Equestrian Facilities N N N N Outdoor Recreation SUP SUP N N Indoor Recreation N N P P Major Event Entertainment N N SUP SUP Commercial Parking Lots N N P P Administrative or Research Facilities SUP SUP L(14) P Broadcasting of Production Studio SUP SUP P P Sexually Oriented Business N N N N Temporary Uses L(38) L(38) L(38) L(38) P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code Printing / Publishing N N N N Bakeries N N L(21) P Manufacture of Non-odoriferous Foods N N N N Feed Lots N N N N Food Processing N N N N Light Manufacturing N N N L(23) Heavy Manufacturing N N N N Wholesale Sales N N N N Wholesale Nurseries N N N N Distribution Center N N N N Wholesale Storage and Distribution N N N N Self-service Storage N N N N Construction Materials Sales N N N N Junk Yards and Auto Wrecking N N N N Kennels N N N N Veterinary Clinics SUP SUP L(14) P Sanitary Landfills, Commercial N N N N Incinerators, Transfer Stations SUP SUP Gas Wells L(27) L(27) L(27) L(27) P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-27 Subchapter 24 Development Code Basic Utilities SUP SUP SUP SUP Community Service P P P P Parks and Open Space P P P P Churches P P P P Semi-public, Halls, Clubs, and Lodges P P P P Business / Trade School N N L(14) P Adult or Child Day Care P P P P Kindergarten, Elementary School P P P N Middle School P P P P High School SUP SUP P P Colleges N N P P Hospital N N P P Elderly Housing P P P P Medical Centers SUP SUP P P Cemeteries N N N N Mortuaries N N P P P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.5.3 General Regulations. General regulations of the Regional Mixed Use Centers are contained in the table below: Minimum lot area (square feet) None None None None Minimum lot width 50 feet 20 feet 20 feet None Minimum lot depth 80 feet 60 feet 50 feet None Minimum front yard setback 10 feet 10 feet 10 feet None Minimum side yard 6 feet 6 feet 6 feet None Minimum side yard adjacent to a street 10 feet 10 feet 6 feet None 10 feet 10 feet plus 1 plus 1 foot for foot for each each Minimum rear yard foot of foot of None None building building height height above above 30 feet 30 feet 30 feet 30 feet 30 feet 30 feet plus 1 plus 1 plus 1 plus 1 foot for foot for foot for foot for each each each each Minimum yard abutting a single family foot of foot of foot of foot of use or district building building building building height height height height above above above above 30 feet 30 feet 30 feet 30 feet Minimum residential unit size 600 SF 500 SF 500 SF 500 SF Maximum FAR 0.50 0.75 1.5 3.0 Maximum Density, dwelling units per 30 40 80 100 acre Maximum Lot Coverage 55% 75% 85% 90% Minimum Landscaped Area 45% 25% 15% 10% Maximum building height 40 feet 50 feet 65 feet 100 feet 1-29 Subchapter 24 Development Code ,,a5:,5:,,6 ..................... Emp(qym,ent,,,,C n,ters ................................................................................................................................................................................................................................................................................................................... Sections: 35.5.6.1 35.5.6.2 35.5.6.3 Purpose. Permitted Uses. General Regulations. 35.5.6.1 Purpose. The purpose of the Employment Centers is to provide locations for a variety of ~vorkplaces and complimentary uses. Land Use categories xvitNn Employment Centers include: EC-C Employment Center Commercial EC-I Employment Center Industrial 35.5.6.2 Permitted Uses. The follo~ving uses and their accessou~ uses are permitted ~vith/n the Employment Centers: Agriculture P P Livestock L(7) L(7) Single Family Dwellings N N Accessory Dwelling Units N N Attached Single Family Dwellings N N Dwellings Above Businesses N N Live/VVork Units N N Duplexes N N Community Homes For the Disabled N N Group Homes N N Manufactured Housing Developments N N P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-31 Subchapter 24 Development Code Home Occupation N N Sale of Products Grown on Site N N Hotels P P Motels P N Bed and Breakfast N N Retail Sales and Service P N Movie Theaters N N Restaurant or Private Club P P Drive-through Facility P P Professional Services and Offices P P Quick Vehicle Servicing P P Vehicle Repair P P Auto and RV Sales P P Laundry Facilities P P Equestrian Facilities N N Outdoor Recreation P N Indoor Recreation P P Major Event Entertainment P P Commercial Parking Lots P P Administrative or Research Facilities P P Broadcasting of Production Studio P P Sexually Oriented Business N N Temporary Uses L(38) L(38) P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code Printing / Publishing P P Bakeries P P Manufacture of Non-odoriferous Foods P P Feed Lots N N Food Processing N N Light Manufacturing P P Heavy Manufacturing N N Wholesale Sales P P Wholesale Nurseries N L(32) Distribution Center N P Wholesale Storage and Distribution N L(34) Self-service Storage P P Construction Materials Sales N P Junk Yards and Auto Wrecking N N Kennels P P Veterinary Clinics P P Sanitary Landfills, Commercial N N Incinerators, Transfer Stations Gas Wells L(27) L(27) P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-33 Subchapter 24 Development Code Basic Utilities P P Community Service P P Parks and Open Space P P Churches P P Semi-public, Halls, Clubs, and Lodges P P Business / Trade School P P Adult or Child Day Care P P Kindergarten, Elementary School N N Middle School N N High School N N Colleges P P Hospital P N Elderly Housing P N Medical Centers P N Cemeteries N N Mortuaries P P P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.6.3 General Regulations. General regulations of the Employment Center are as follo~vs: Minimum lot area (square feet) 2,900 2,500 Minimum lot width 20 feet 50 feet Minimum lot depth 50 feet 50 feet Minimum front yard setback None 10 feet Minimum side yard None None Minimum side yard adjacent to a street None 10 feet 30 feet, 30 feet, plus 1 plus 1 foot for foot for each each Minimum yard abutting a single family foot of foot of use or district building building height height above above 30 feet 30 feet Maximum FAR 1.50 0.75 Maximum lot coverage 80% 85% Minimum landscaped area 20% 15% Maximum building height 100 feet 65 feet 1-35 Subchapter 24 Development Code 35.5. 7 Industrial Centers Sections: 35.5.7.i Purpose. 35.5.7.2 Permitted Uses. 35.5.7.3 General Regulations. 35.5.7.1 Purpose. The purpose of Industrial Centers is to provide locations for a variety of ~vork processes and employment such as manufacturing, warehousing and distributing, indoor and outdoor storage, and a wide range of commercial and industrial operations. Land Use categories within Industrial Centers include: IC-E Industrial Center Employment IC-G Industrial Center General 35.5.7.2 Permitted Uses. The following uses are permitted within Industrial Centers: Agriculture P P Livestock L(7) L(7) Single Family Dwellings N N Accessory Dwelling Units N N Attached Single Family Dwellings N N Dwellings Above Businesses N N Live/VVork Units N N Duplexes N N Community Homes For the Disabled N N Group Homes N N Manufactured Housing Developments N N P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 1-37 Subchapter 24 Development Code Home Occupation N N Sale of Products Grown on Site N N Hotels P N Motels P N Bed and Breakfast N N Retail Sales and Service N N Movie Theaters N N Restaurant or Private Club L(14) N Drive-through Facility N N Professional Services and Offices P P Quick Vehicle Servicing P P Vehicle Repair P P Auto and RV Sales P P Laundry Facilities P P Equestrian Facilities N N Outdoor Recreation N N Indoor Recreation P N Major Event Entertainment P N Commercial Parking Lots P P Administrative or Research Facilities P P Broadcasting of Production Studio P P Sexually Oriented Business N SUP / L(32) Temporary Uses L(38) L(38) P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 Subchapter 24 Development Code Printing / Publishing L(25) L(25) Bakeries L(25) P Manufacture of Non-odoriferous Foods L(25) P Feed Lots N N Food Processing N P Light Manufacturing P P Heavy Manufacturing N SUP Wholesale Sales P P Wholesale Nurseries P P Distribution Center SUP P Wholesale Storage and Distribution P P Self-service Storage P P Construction Materials Sales P P Junk Yards and Auto Wrecking N SUP Kennels N N Veterinary Clinics N N Sanitary Landfills, Commercial N SUP Incinerators, Transfer Stations Gas Wells L(27) L(27) P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 1-39 Subchapter 24 Development Code Basic Utilities P P Community Service P P Parks and Open Space P P Churches P P Semi-public, Halls, Clubs, and Lodges P P Business / Trade School P P Adult or Child Day Care L(19) N Kindergarten, Elementary School N N Middle School N N High School N N Colleges P N Hospital N N Elderly Housing N N Medical Centers P N Cemeteries N N Mortuaries P N P-- Permitted, N--not permitted, SUP-- Specific Use Permit Required, L(X) -- Limited as defined in Section 35.5.8 Subchapter 24 Development Code 35.5.7.3 General Regulations. General regulations of the Industrial Centers are contained in the table below: Minimum lot area (square feet) 2,500 5,000 Minimum lot width 50 feet 50 feet Minimum lot depth 50 feet 50 feet Minimum front yard setback 10 feet 10 feet Minimum side yard 6 feet 6 feet Minimum side yard adjacent to a 10 feet 10 feet street 30 feet, 30 feet, plus 1 plus 1 foot for foot for each each Minimum yard when abutting a foot of foot of residential use or district building building height height above above 30 feet 30 feet Maximum FAR 0.75 0.40 Maximum lot coverage 80% 90% Minimum landscaped area 20% 10% Maximum building height 100 feet 65 feet 1-41 Subchapter 24 Development Code 35.5.8 Limitations The folloxving define the limitations to zoning uses xvhen the zoning matrix identify a use as permitted, but limited L(1): Accessory dxvelling units are permitted, subject to the folloxving additional criteria: i. The proposal must conform xvith the over,il maximum lot coverage and setback requirements of the underlying zone. 2. The maximum number of accessory dxvelling units shall not exceed i 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 i000 sq. ft. GHFA unless the lot meets the requirements of L(i).5. 4. ()ne addition~J parking space shall be provided that conforms to the off-street parking provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, xvhere the lot size is equal to or ~eater than ten acres in size. An SUP is not required for such an accessory residential structure xvhere the lot size is equal to or greater than ten acres. L(2) = For infill lots, the front setback shall be an average of the adjacent lots. L(3) = In part of a subdMsion of 2 acres or more, up to 2 units may be attached by a common xvall if the lots xvhich contain the attached structures do not abut the perimeter lot lines of a subdivision, the individual common xvall units are on separate lots designed to be sold indMdually, and they comply xvith the Subchapter i3. Addition~Jly, units must have the appearance of a single family residence from the street. L(4) = Permitted as part of a mixed use development of ten (i0) acres or more and only in conjunction xvith office, retail or other pemaitted commercial or institutional uses. L(5) = Within this district the density of apartments xvill be c~Jculated as one bedroom equating to .5 units. L(6) = Permitted only on 2,~d story and above, xvhen an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, other~vise office or retail uses are not required. L(7) = Limited to txvo (2) animals on parcels one (i) to three (3) acres in size. Additional animals may be added at a rate of one per each acre over three. L(8) = Travelers' accommodations, are permitted, provided that: i. The business-oxvner or manager shall be required to reside on the property occupied by the accommodation, or adjacent property. 2. That each accommodation unit shall have i off-street parking space, and the oxvners shall have 2 parking spaces. All spaces sh~Jl be in conformance xvith the requirements of the Off-Street Parking section of this Chapter. 3. That only one ground or xvall sign, constructed of a non-plastic material, non-interior illuminated of 4 sq. ft. maximum size be alloxved. Any exterior illumination of signage shall be installed such that it does not directly illuminate any residential structures adjacent or nearby the travelers' accommodation. 4. That the number of accommodation units alloxved shall be proportional to the permitted density of the zone. Each traveler's accommodation unit shall be counted as 0.6 units for the purpose of calculating the permitted number of traveler's accommodations. 5. All traveler's accommodations shall be xvithin 200 feet of a collector or arterial. Street designations sh~Jl be as determined by the City Comprehensive Plan. Distances sh~Jl be measured via public street or alley access to the site from the arterial. Subchapter 24 Development Code 6. Excluding the business-o~vner's unit and the area of the structure it ~vill occupy, there must be at least 400 sq. ft. of gross interior floor space remaining per unit. 7. Traveler's accommodations are limited to no more than 8 guest units. L(9) = All restrictions of L(8), but limited to no more than 15 guest units. L(10): All restrictions of L(8), but limited to no more than 5 guest units. L(ll): Limited to sit doxvn only, and no drive up service permitted. Limited to no more than 100 seats and no more than 4,000 square feet of restaurant area. L(12) = L(13) = Uses are limited to no more than 55,000 square feet of~oss floor area per lot. L(14) = Uses are limited to no more than 10,000 square feet of~oss floor area. L(15) = Uses are limited to no more than 5,000 square feet of ~oss floor area per lot. An SUP is required for additional square footage for Semi-Public Halls, Clubs and Lodges. L(16) = Uses are limited to no more than 1,500 square feet of~oss floor area per lot. L(17) = Uses are limited to no more than 25,000 square feet of gross floor area per use, except grocery stores may be larger with approval of an SUP. L(18): L(19): Allowed as an accessory use to the primary business(es) witNn the same structure. The accessory use is limited to those employees or owners of the business or businesses witNn the same structure. = Permitted, but outdoor storage of autos prohibited. = Bakery and botding areas not to exceed 2,500 square feet. Sales on premises of products produced required zone. = Light manufacturing of products sold on site permitted, area of manufacture not to exceed 5,000 square L(20) L(21) in this L(22) L(23) feet. L(24) feet. L(25) L(26) L(27) L(28) L(29) = Light manufacturing of products sold on site permitted, area of manufacture not to exceed 1,500 square = If proposed use is xvithin 200 feet of a residential zone, approval is subject to a Specific Use Permit. = Uses are limited to no more than 2,500 square feet of gross floor area per lot. = Must comply xvith the provisions of Subchapter 89, Gas Well Drilling and Production. = Use alloxved as part of consolidated parking plan. L(30) = Permitted as part of a mixed use building and only in conjunction xvith office, retail, or other permitted commercial, or institutional uses, equal to at least 15% of the floor space of the residential use along any avenue, collector, or arterial street, other~vise these uses are not required. L (31) = Permitted as part of a mixed use building and only in conjunction xvith office, retail, or other permitted commercial, or institutional uses, equal to at least 25% of the floor space of the residential use along any avenue, collector, or arterial street, other~vise these uses are not required. L (32) = Not alloxved to locate adjacent to an arterial and xvithin 1,000 feet as measured from the nearest property line of a sexually oriented business to the nearest property line of any other sexually oriented business, adult or child daycare, any elderly housing facility, hospit~J, any residential use, public open space. 1-43 Subchapter 24 Development Code L (33) = Additional height may be alloxved xvith an SUP and a viexvshed study, xvNch illustrates that any viexvs of the Historic Courthouse are not blocked by the nexv structure(s) additional height. L (34) = Permitted xvith no more than 150,000 gross square feet and 8 truck docks. All docks or loading bays shall be to the rear or side of the structure and not viexvable from the street. The buffering standards for outdoor storage sh~Jl apply, both to any outdoor storage activity and to the loading docks. L (35): L (36) = Permitted when combined with retail sales. L (37) = 5-acre rain/mum land area required and no more than 25 kennels per acre allowed, including indoor and outdoor runs. A natural buffer strip is required adiacent to any residential use. L (38) = Must meet the requirements of Section 35.12.9. L (39): L (40) =Limited to a maximum 12 un/ts per acre. (Amended ()rd. 2002-348 10/15/2002) (Amended ()rd. 2003-376 11/18/2003) CITY OF DENTON CITY COUNCIL MINUTES October 19, 2004 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, October 19, 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, Redmon and Thomson. ABSENT: None 1. The Council received a report, held a discussion, and gave staff direction regarding the City's existing ordinance dealing with water and wastewater leak adjustmems to customer billing; revisit underlying policy. Susan Croff, Utility Process Quality Comrol Auditor, stated that periodically the Customer Service Department received requests from customers for water leak adjustments, specifically for toilet leaks. Although most of the requests for billing adjustmems were denied, more and more customers were questioning the clarity and applicability of the ordinance as it related to hidden water leaks and toilet leaks. The Public Utilities Board had reviewed the currem ordinance and voted to recommend amending the ordinance to further its clarity. The new ordinance would not allow for an adjustmem for a problem with appliances and/or toilet leaks. After a discussion on the provisions of the ordinance, the consensus of the Council was to proceed with the proposed ordinance. 2. Staff responded to requests for clarification of consent agenda items listed on the consent agenda for October 19, 2004. Mayor Pro Tem McNeill requested a clarification on page 2 of the September 14, 2004 minutes dealing with the ad valorem tax dollars point. He felt a better clarification would be "the current ad valorem tax rate did not allow the capture of dollars needed to pay for maintenance." Following the completion of the Work Session, the City Council convened in a Closed Meeting to consider the items listed below. 1. Closed Meeting: mo Consultation with Attorney -- Under TEXAS GOVERNMENT CODE Section 551.071. 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. City of DeNon City Council Minutes October 19, 2004 Page 2 Received a briefing regarding San Angelo Electric Services Company ("SESCO") claim which has been asserted against the City of DeNon, 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 Considered and discussed status of litigation styled Robinson v. City of Denton, Cause No. 2003-60130-393, curremly pending in the 211th District Court of Denton County, Texas. Received 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 Vffolski, et al., Cause No. ED-2003-01177 pending in the Probate Court of Denton County, Texas. o Consulted 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. Deliberated 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. 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. ABSENT: Council Member Kamp City of DeNon City Council Minutes October 19, 2004 Page 3 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards Mayor Brock presemed the following proclamations: Pecan Creek Elememary School Day Dr. Ron Alridge Day Lions White Cane Day Demon Chamber of Commerce Week B. October Yard-of-the-Momh Awards Mayor Brock presemed the following October Yard of the Momh awards: Dale and Charlotte Irwin Harold and Carolyn Walding John and Becky Wright Patti and Bob Von Tour Emily Taylor Carl and Patti Freeman Roger and Deborah Cox - Watersmart Yard Primrose at Sequoia Park - Business Yard 3. CONSENT AGENDA Mulroy motioned, McNeill seconded to approve the Consem Agenda and accompanying ordinances and resolutions. On roll vote, McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. A. Approved the minutes of September 7, 14, 20 and 21, 2004. Bo 2004-325 - 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 Contract for Electric Rubber Insulated Termination and Separable Connector Goods and Accessories awarded to Hughes Supply in the estimated amoum of $152,000). Co 2004-326 - An ordinance accepting competitive bids and awarding an annual comract for the purchase of Automatic Throw Over (ATO) Switches for DeNon Municipal Electric; providing for the expenditure of funds therefor; and providing City of Demon City Council Minutes October 19, 2004 Page 4 an effective date (Bid 3220 - Annual Price Agreemem for ATO Switches awarded to Hughes Supply in the estimated amoum of $85,160). Do 2004-327 - An ordinance of the City of Demon, 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 amoum of $48,324). mo 2004-328 - 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 Wolski, et al., Cause No. ED- 2003-01177 pending in the Probate Court of Denton County, Texas; and declaring an effective date. Fo 2004-329 - An ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a Professional Services Agreemem 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 2004-240 - An ordinance of the City Council of the City of Demon, Texas authorizing the City Manager to execute a Professional Services Agreemem 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 Demon Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. Ho Approved tax refunds for the following property taxes: Tax Name Reason Year Amount i ~P~ ~ ~W ~ S~PPl~nt ~g 2003 53 ~3 2. Price Westwind DCAD Supplemental Change 2003 8,011.19 4. PUBLIC HEARINGS A. The Council held a public hearing inviting citizens to commem on the proposed usage of the 2004 Local Law Enforcement Block Grant funding. Captain Lee Howell, Demon Police Departmem, stated that this item was for the usage of the 2004 local law enforcemem block gram funding. The funds were to be used for equipmem, technology and materials for law enforcemem. An advisory board reviewed the funding and the usage of the funds. City of DeNon City Council Minutes October 19, 2004 Page 5 The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. B. The Council held a public hearing and considered 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 was generally located on the east side of Locust Street, approximately 400 feet south of Windsor Street. The Planning and Zoning Commission recommended approval (7-0). (Z04-0034, Jamart Estates) Kelly Carpenter, Director of Planning and Development, presented the details of the proposal. The site was south of the North Branch Library with proposed rezoning from NR2 to NR4. The back portion of the property would be subdivided for homes with a cul-de-sac off Locust. The Mayor opened the public hearing. Roger Wilkinson, represeming the owner of the property, spoke in favor. The Mayor closed the public hearing. The following ordinance was considered: NO. 2004-331 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZON1NG 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 MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z04-0034) Mulroy motioned, McNeill seconded to adopt the ordinance. On roll vote, McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council cominued 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) City of Demon City Council Minutes October 19, 2004 Page 6 Larry Reichhart, Assistam Director of Planning and Developmem, stated that the ordinance had been revised per the latest comments including comments from the Committee. It was recommended that the ordinance be reviewed in six momhs. Council discussed the provisions dealing with a third party destroying trees without the knowledge of the property owner. The procedure would include an investigation of the incidem with the guilty party being held responsible for the destruction of the trees. Council Member Kamp returned to the meeting. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Mark Burroughs, Chair-Tree Subcommittee, spoke in support of the ordinance. He felt that trees needed to be protected but regulations should not overburden the property owner. He urged strong enforcemem of the ordinance, the hiring of an arborist, the formation of a citizen review committee, writing the provisions of the ordinance in order to be user friendly, and the formation of tree conservation areas. He suggested a few technical changes in the wording of the ordinance. Mike Drury, 2115 Highland Park Road, Denton, spoke in opposition to the ordinance. He felt it was amigrowth, ami-business, and ami-American and failed to protect the minority from the excess of the majority. Michel Herrilgers, 651 Wade Road, Sunset, spoke in support of the ordinance. Roger Huebner, 2210 Dartmouth Drive, Arlington, spoke in support of the ordinance. He indicated that he wanted to take a copy back to the City of Arlington to use there. He had a concern regarding the continuous drip line requirement in relation to a stand of trees. Bernadette Donahue, 608 W. Hickory, Denton, spoke in support of the ordinance. She felt that there still might be too many loopholes in the ordinance. Greg Webb, 817 Crystal Creek, Arlington, spoke in support of the ordinance. He also supported the creation of a tree inventory to be done by a professional. David Havens, 917 S. Elm, Demon, spoke in support of the ordinance. He had a concern regarding the enforcement provisions in Section D relative to third party problems. Hilary Jump, 1405 San Gabriel Drive, Demon, spoke in favor of the ordinance. She suggested that the wording in the ordinance be very clear that a tree trust must be within the city limits. Michelle Daniels, 324 Fulton Street, Denton, spoke in support of the ordinance. She urged the hiring of an arborist and a qualified professional to review plans of an area, as trees were a benefit to the city Kathleen Milacek, 504 Riney Road, Little Elm, expressed concern for the enforcemem end of the ordinance. She felt the clarity of the imem of the ordinance was not certain. Dianne Driscoll, 7640 W. Greenway, Dallas, felt that there was a potential loophole applicable to Section A2. City of DeNon City Council Minutes October 19, 2004 Page 7 Louis Vasquez, 1003 Eagle Drive, Denton, spoke in support of the ordinance. His main concern was the enforcement of the ordinance. He felt that the City could receive a grant from the Texas Forestry Service for an arborist. Kelly Weber, 1003 Eagle Drive, DeNon, spoke in favor of the ordinance but expressed concern regarding consistent enforcement. Ryan Matthews, 1003 Eagle Drive, DeNon, spoke in support of the ordinance and suggested educational programs for public knowledge of trees. Bill Keith, 1420 Kings Row, Denton, spoke in opposition to the ordinance. He felt it was an invasion of property rights, taking trees without compensation to the property owners and that the ordinance would damage the community's growth. John Paul Eddy. 1320 Heather Lane, DeNon, spoke in support of the ordinance. He indicated that there needed to be good enforcement of the ordinance. Sean O'Brien, 418 Audra Lane, Denton, spoke in support of the ordinance. He felt an urban forester or arborist was needed. Melissa Lindlow, Dallas, spoke in support. The Mayor closed the public hearing. The following ordinance was considered: NO. 2004-332 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF SUB-CHAPTER 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 MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (SI03-0012) McNeill motioned, Momgomery seconded the approval of the proposed ordinance with an added requiremem that it be brought back to the Planning and Zoning Commission and Council in six months for review of effectiveness. He also asked that the current committee be required to remain active for the parallel six-month period. Mark Burroughs, current chair of the committee, would assist with the establishment of a citizen's advisory committee that would also evaluate the ordinance during this six-momh period. The committee could have additional members who wanted to serve on it in addition to the Council appointing members to serve on this citizen advisory committee. The Planning Departmem would develop a charge and procedures for the operation of the committee. Reichhart suggested a wording change also be added in Section 2 a.i.i, stating "and that do not require the removal of trees." McNeill and Montgomery agreed to add that language to the motion and second. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. City of Demon City Council Minutes October 19, 2004 Page 8 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance of the City Council of the City of Demon, Texas, authorizing the City Manager, as Demon'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 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; Demon's cost share - $ 88,041); and providing an effective date. Kenneth Banks, Water Quality Manager, presemed background information regarding the application for the grant. The following ordinance was considered: No. 2004-333 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. Montgomery motioned, Mulroy seconded to adopt the ordinance without modification. 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 of an exaction variance of Section 35.20.2 (M)(2) of the Code of Ordinance concerning improvemems to offsite streets. The 3.96-acre parcel was located on the east side of Locust Street/FM2164, approximately 400 feet south of Windsor Drive. The Planning and Zoning Commission recommended approval of a partial variance (7-0). (V04-0024) David Salmon, Assistant Director of Engineering, stated that the requested variance dealt with the offsite improvemems for the turning lanes. The Planning and Zoning Commission had approved a partial variance for the left turn lane. The applicant agreed with the Commission's recommendation. City of DeNon City Council Minutes October 19, 2004 Page 9 Kamp motioned, Redmon seconded to grant the partial variance recommended by the Planning and Zoning Commission. 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 appoimmems to the City's Economic Development Partnership Board. Kamp motioned, Mulroy seconded to approve all nominations as presented at the last meeting. On roll vote, Kamp "aye", McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. Citizen Reports Review of procedures for addressing the City Council. The Council received citizen reports from the following: A. Joel Kesterson regarding gas wells near residemial neighborhoods. Mr. Kesterson indicated that he was not in favor of gas wells in residential neighborhoods. He felt residents should not have gas wells near their homes. He suggested a moratorium on gas drilling within the city limits. B. Cindy McTee regarding gas wells near residemial neighborhoods. Ms. McTee felt that gas well drilling threatened both peace and beauty of the community. C. Lillie Clark regarding gas wells near residemial neighborhoods. Ms. Clark stated that she had concerns regarding gas well drilling in southeast Denton. She asked that the Council look at what affect a gas well had on residemial neighborhoods. She asked if there were an evacuation plan in place in the event of a disaster. D. Les Brothers regarding gas wells near residemial neighborhoods. Mr. Brothers stated that many residents did not want gas wells in residential areas. Gas revenues were not long term and were not stable. High-end housing would not be built where gas wells might be developed. He suggested prohibiting gas wells on property zoned for residemial or employmem cemer industrial use. He also suggested a moratorium on gas drilling within the city limits umil developmem regulations were changed. This should be placed on an upcoming council agenda as soon as possible for discussion. E. Robert Donnelly regarding drainage issues. Mr. Donnelly, 3900 Quail Creek Road, showed a video with council candidates, now currem council members, discussing drainage runoff. He was still having problems with drainage from a developmem completed near his property. He still had not heard from any council member regarding his problems. City of Demon City Council Minutes October 19, 2004 Page 10 E. New Business Council Members suggested the following items of New Business for future agendas: 1. Mayor Brock and Council Member Redmon requested a discussion on the gas well ordinance as it related to residential issues. 2. Mayor Pro Tem McNeill and Council Member Mulroy requested an update on the Donnelly drainage issue including a history of the adjacem property, when platted and approved, etc. 3. Mayor Pro Tem McNeill requested a review of the components to list on utility bills that made up the solid waste charges such as curbside solid waste, curbside recycling, drop-off cemers and others. F. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda City Manager Conduff did not have any items for Council. G. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no continuation of the Closed Meeting. H. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action on Closed Meeting Items. With no further business, the meeting was adjourned at 9:02 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 20, 2004 Join Meeting of the City of DeNon City Council and the Planning and Zoning Commission on Wednesday, October 20, 2004 at 5:30 p.m. in the City Council Chambers at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Montgomery, Mulroy, Redmon and Thomson. ABSENT: None PLANNING AND ZONING PRESENT: Commissioners Watkins, Strange, Roy and Thibodaux. PLANNING AND ZONING ABSENT: Commissioners Noble, Powell and Holt. 1. A public hearing was held concerning the 2005 Capital ImprovemeN Program as recommended by the Citizens Capital Improvement Advisory Committee. Mark Burroughs, Chair-CIP Committee, reviewed the charge of the committee that included obtaining citizen input, determining capital improvement needs and making a recommendation for a February 2005 bond election. A consensus of the committee had reached a proposed package. He reviewed the process the committee used to reach the proposed bond package. Outreach groups were formed to receive information on perceived needs from neighborhoods, the City Council, the Planning and Zoning Commission, the two universities, the DISD, the County Commissioners, and the Chamber of Commerce. Focus groups were then formed based on the information gathered from the outreach groups. The focus groups were community development, parks and recreation, and transportation. After considering all of the information, the committee voted to recommend the proposed package. Three proposals were presented. Tier 1 had a price of $28 million. Tier 2 projects were projects just below the $28 million and Tier2A were urgeN projects but not included in Tier 1. Randy Robinson, Vice-Chair CIP Committee, stated there never was enough money to do all of the things that needed to be done. He hoped that the package presented by the committee would be viewed favorably by the public. Roni Beasley, Chair-Parks and Recreation Subcommittee, stated that the subcommittee unanimously recommended all of the Tier 1 parks and recreation projects. She reviewed those projects and noted reasons for the selection of the projects. She urged Council and the Commission to include the 2A parks projects in the proposal. Projects in Tier 2B were also importaN and should be considered. Polly Diebel, Chair-Community DevelopmeN Subcommittee, reviewed the process the subcommittee used to evaluate the projects presented to the subcommittee. Three projects were unanimously recommended for Tier 1. She reviewed those projects and noted reasons for the selection of the projects. Council/Commission discussion included: Clarification of the senior center expansion. A suggestion to include the South Branch Library expansion in Tier 1. City of DeNon City Council Minutes October 20, 2004 Page 2 A description of suggested improvements to Walnut and Pecan Streets. The assumption that the strain on the South Branch Library would be lifted when Emily Fowler was reopened. Discussion of relocating the Senior Center as opposed to renovation/expansion of currem facility. Efficiency of the expenditure of funds made sense to renovate Senior Center as opposed to a new facility in a better location. County versus city residems using the Senior Cemer. Rick Woolfolk, Chair-Transportation Subcommittee, reviewed the process the subcommittee used to evaluate the projects presemed to the subcommittee. Safety, public utilization, economic developmem value, cost sharing, project timing, and political feasibility were criteria used for selection of projects. He suggested consideration of Tier 2A and Tier 2B projects and to offer all three tiers to the voters for a 2.5 to 3 cent property tax increase. Council/Commission discussion included: Clarification of arterial streets on the list. List a recommendation for projects that could be identified later rather than a listing of specific projects now. Economic development priorities included Western Blvd., the Airport, and improvements to the bridge on Highway 377. Land acquisition for two locations on a multimodal station. The need to have flexibility among the projects in order to leverage the most project out of the available dollars. Burroughs stated that the amount of tax increase in order to do all of the proposed projects was 33/4 cents. Projects left off the lists that had merit but that the committee had not received enough information included the day labor site, animal shelter renovation and the aquatic center completion. Council/Commission discussion included: The tax rate for the total amount of projects estimated at $44 million was a potential of 31/2 cent increase in increments over 5 years. It might not be necessary to raise taxes each year depending on the projects to be initiated each year. Some proposed projects might never come about. The bond election grained permission for the City to do the projects but did not guaramee the projects. The bond election would authorize the Council to issue bonds but would not require the council to issue the bonds. Phillip Young, 127 Hollyhill Lane, DeNon, 76205, member of the Parks and Recreation Subcommittee, stated that the subcommittee had discussions regarding the raising of taxes. The subcommittee found that it would probably be impossible to not raise taxes, as there were so City of Demon City Council Minutes October 20, 2004 Page 3 many projects to consider and such a great growth rate. It was felt that citizens would be willing to spend more money now to avoid falling behind in services. Pat Langa, 3211 Montecito, Denton, 76205, spoke in support of the expansion of the South Branch Library. She also suggested installing sidewalks around the CVS Pharmacy to the Library and to include sidewalks in all future developmems. Kay Daniel, 2622 Crockett Drive, Corimh, 76210, spoke in support of animal shelter funding. Jean Greenlaw, 2600 Sheraton Road, Denton, 76207, spoke in support of the expansion of the South Branch Library. Marc Moffitt, 1323 Norman Street, Denton, 76201, spoke in support of transportation needs, specifically intersection signalization; FM 1830 improvements; and improvements to residential streets. He felt these projects should be moved up from lower tiers. Marilyn Wells, 2201 Emerson Lane, Demon, 76209, spoke in support of animal shelter funding. Mayor Brock indicated that Comment Cards were received from: Pat Goble, 3901 Gram Parkway, Demon, 76208 - recommended full package. Gus Seligmann, 916 Ridgecrest, Demon, 76205 - in support of the full package T.L. Freshour, 1800 Concord, Demon, 76205 - support of the expansion of the Senior Center. Jan Thompson, 1407 Noble Way, Flower Mound, 75022 - support of funding for Clear Creek Nature Center. Theresa and John Gromadzki, 2700 Hollow Ridge Drive, Demon, 76210 - support of funding for South Branch Library expansion. Marie Mitchell, 104 Shahan Drive, Shady Shores, 76208 in support of Library expansion. Turner Kobler, 148 Cobblestone, Demon, 76207 - in support of South Branch Library expansion. Ken and Sandra Ferstl, 1505 Victoria, Denton, 76209 - support of expansion of South Branch Library. Judy Deek, 621 Magnolia, Demon, 76201 - support of expansion of South Branch Library. Martha Len Nelson, 2603 Brookfield, Demon, 76209 - support for extended package. The Mayor closed the public hearing. Following the completion of the public hearing the Council adjourned its meeting and the Planning and Zoning Commission continued its meeting. 2. The Planning and Zoning Commission considered a recommendation to the City Council concerning the 2005 Capital Improvement Program as recommended by the Citizens Capital Improvement Advisory Committee. City of DeNon City Council Minutes October 20, 2004 Page 4 Vice-Chair Strange suggested considering cominuing this item until the next meeting of the Commission as only four members were presem. Kelly Carpenter, Director of Planning and Development, stated that there were limited options for postponing consideration of the item. The next regular meeting of the Commission would be on October 27th and the consideration of the issue could be continued to that date. There would still be time to make a recommendation to the Council for the Council's November 2nd meeting. Vice-Chair Strange stated that if consideration were delayed, there would not be another public hearing. The Commission would only deliberate on the comments received that this meeting. Commissioner Roy felt that the full Commission should consider the recommendation. Commissioner Roy motioned to continue the item to the October 27th meeting. Motion died for lack of a second. Commissioner Roy stated that he agreed with the proposed projects and expressed a possible consideration for the animal shelter improvements. Vice-Chair Strange stated that this was a city departmem staffed by city employees and perhaps an imemal audit should be done before inclusion in the bond package. Commissioner Roy stated that there would be no opportunity beyond tonight to include a proposal for the animal shelter in the bond package. Commissioner Watkins stated that the problem at the animal shelter seemed to be an operational problem rather than a facility problem. He felt that the Committee had made a recommendation and he would like to see all of the tiers recommended to the City Council. Watkins motioned, Thibodeaux seconded to recommend Council consider all of the proposed tiers (1, 2A and 2B) for the bond package. Vice-Chair Strange stated that he would have reprioritized some of the proposed projects based on the overall situation in Denton and the growth occurring in Denton. He felt that transportation was the real issue with economic development the second issue. He felt that a great deal of money was being proposed to beautify the backside of the Square and questioned if that would be money well spent. He questioned if that would be a Tier 1 project. In regards to the Senior Center, he felt that a small amount of people were being served compared to the general population with a large amoum of money being considered. Parks might not be favored over transportation. On roll vote of the motion to recommend Tiers 1, 2A and 2B, Watkins "aye", Strange "aye", Roy "aye", and Thibodaux "aye". Motion carried unanimously. With no further business, the meeting was adjourned at 7:58 p.m. City of Demon City Council Minutes October 20, 2004 Page 5 EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS VIRGIL STRANGE VICE-CHAIR PLANNING AND ZONING COMMISSION CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES October 25, 2004 After determining that a quorum was preseN, the City Council convened in a Special Called Meeting on Monday, October 25, 2004 at 12 noon in the Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Kamp, Mulroy, Redmon and Thomson. ABSENT: Council Member Montgomery 1. The Council considered adoption of an ordinance of the City of DeNon, Texas, authorizing and setting a join public hearing with the Planning and Zoning Commission and the City Council to consider zoning amendments to the Denton Development Code affecting multi- family developmeN, including without limitation requiring specific use permits for all multi- family developmeN in the City of DeNon; prescribing notice of the join public hearing pursuaN to Texas Local GovernmeN Code §211.007(d); and providing for an effective date. The following ordinance was considered: NO. 2004-334 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING AND SETTING A JOINT PUBLIC HEARING WITH THE PLANNING AND ZONING COMMISSION AND THE CITY COUNCIL TO CONSIDER ZONING AMENDMENTS TO THE DENTON DEVELOPMENT CODE AFFECTING MULTI- FAMILY DEVELOPMENT, INCLUDING WITHOUT LIMITATION REQUIRING SPECIFIC USE PERMITS FOR ALL MULTI-FAMILY DEVELOPMENT IN THE CITY OF DENTON; PRESCRIBING NOTICE OF THE JOINT PUBLIC HEARING PURSUANT TO TEXAS LOCAL GOVERNMENT CODE §211.007(D); AND PROVIDING FOR AN EFFECTIVE DATE. Mulroy motioned, Thomason seconded to adopt the ordinance. On roll vote, Kamp "aye", McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. With no further business, the meeting was adjourned at 12:15 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: November 16, 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 of the City of DeNon, Texas authorizing the expenditure of funds for payments by the City of Denton for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3257-Electrical Energy Transmission Fees in the total amoum of $613,819). FILE INFORMATION There are six purchase orders that reflect the estimated cost of transmission of electrical energy from the generation source to the Denton Municipal Electric Distribution System for October 2004 through December 2004. The purchase orders are for paymem of a fee imposed by the Public Utility Commission of Texas (PUCT) for planned transmission services of energy delivered to the City of Denton. The Public Utility Regulatory Act of 1995 (PURA 95) required the developmem of a new, statewide mechanism for electric transmission service in Texas. PURA 95 also placed municipal utilities under the jurisdiction of PUCT for matters related to transmission. As a result, the Denton Municipal Electric Utility has been ordered by the PUCT to pay various other electric utilities in the State specific amoums. The subject purchase orders provide the City of DeNon the authority required by the City Charter to make those paymems. These purchase orders will encumber funds estimated as costs for services through December 31, 2004. No funds will actually be spem umil invoices are received, reviewed, and approved. These purchase orders also include final "true up" paymems for the period from January 2004 through December 2004. The initial purchase orders approved at the beginning of the year were based on the estimated cost of energy transmission; therefore the actual cost for each location can be higher. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider this item at its November 8, 2004 meeting. RECOMMENDATION We recommend approval as follows: American Electric Power American Electric Power Brazos Electric Power Coop, Inc. Brazos Electric Power Coop, Inc. $53,450 $17,817 (True Up) $24,548 $ 8,183 (True Up) Agenda Information Sheet November 16, 2004 Page 2 RECOMMENDATION (CONTINUED) Center Point Energy City Public Service City Public Service Lower Colorado River Authority Lower Colorado River Authority TXU Electric Delivery TXU Electric Delivery Total $ 82,966 $ 24,368 $ 16,245 (TrueUp) $113,841 $ 98,588 (True Up) $130,360 $ 43,453 (True Up) $613,819 PRINCIPAL PLACE OF BUSINESS American Electric Power Waco, TX Brazos Electric Power Coop. San Antonio, TX City Public Service San Antonio, TX Center Point Energy Houston, TX Lower Colorado River Authority Austin, TX TXU Electric Delivery Dallas, TX FISCAL INFORMATION Funds to meet these regulatory fee obligations were budgeted in 2004-2005 budget account 600400.6072. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-File 3257 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE EXPENDITURE OF FUNDS FOR PAYMENTS BY THE CITY OF DENTON FOR ELECTRICAL ENERGY TRANSMISSION FEES TO THOSE CITIES AND UTILITIES PROVIDING ENERGY TRANSMISSION SERVICES TO THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (FILE 3257-ELECTRICAL ENERGY TRANSMISSION FEES IN THE TOTAL AMOUNT OF $613,819). WHEREAS, in order to comply with the legislative requirements contained in the Utility Regulatory Act of 1995, for the payment for energy transmission services fees, the City of Denton is required to pay such fees imposed by the Public Utilities Commission of Texas to six listed utilities set forth in Exhibit "A": and WHEREAS, the City Manager has reviewed and recommended that the City Council approve and authorize the payment of such; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the expenditure of funds in the amount of $613,819 to be paid to the Listed Utilities in the specified amount shown on Exhibit "A", which is attached to and made a part of this ordinance for all purposes is hereby authorized. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-FILE 3257 EXHIBIT "A" American Electric Power American Electric Power Brazos Electric Power Coop, Inc. Brazos Electric Power Coop, Inc. Center Point Energy City Public Service City Public Service Lower Colorado River Authority Lower Colorado River Authority TXU Electric Delivery TXU Electric Delivery Total $ 53,450 $ 17,817 $ 24,548 $ 8,183 $ 82,966 $ 24,368 $ 16,245 $113,841 $ 98,588 $130,360 $ 43,453 $613,819 (True Up) (Tree Up) (Tree Up) (Tree Up) (Tree Up) 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 51 52 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES November 8, 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, November 8,, 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 reconvened in an Open Session at 10:15 a.m. The meeting was called to order to consider the following business: CONSENT AGENDA: Staff recommends this item, and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consem Agenda authorizes the Assistam City Manager for Utilities or his designee to implement each item in accordance with the Staff recommendations. The Public Utilities Board has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids or purchase orders or other matters to be brought before the Public Utilities Board to be considered and approved for paymem under Consem Agenda items 1, 2, 3 & 4. Detailed information is attached to each Consent Agenda item. This listing is provided on the Consent Agenda to allow Public Utilities Board Members to discuss or withdraw an item prior to approval of the Consent Agenda. if the item is pulled prior to consideration, Consent Agenda Items 1 through 4 will be approved with one motion of the Board. if the item is pulled for separate discussion, such item will be considered as the first item taken up under the "Items For individual Consideration" section of the agenda, set forth below. 1) Consider approval of a Professional Services Agreemem with ETTL Engineering and Consulting, Inc. to supply the Solid Waste Department with hydro geological consulting and ground water monitoring services at the City's landfill, in an amoum not to exceed $41,772. 2) Consider approval of an authorization to expend funds by the City of Denton, Texas for electrical energy transmission fees owing to those cities and utilities providing energy transmission services to the City of Denton, Texas (File #3257 - Electrical Energy Transmission Fees - $613,819). 3) Consider approval of Change Order No. 2 in the amoum of $202,750 for Bid No. 3107 for the Hickory Creek Basin Sanitary Sewer Replacemems and Liners project. 4) Consider approval ofpaymem of the Consolidated Water Quality Fee for FY 2005 to Texas Commission on Environmemal Quality for the Pecan Creek and Robson Ranch Water Reclamation Plants in the amount of $63,970. EXHIBIT 2 Consent Agenda Items #1 and #3 were pulled for discussion. Board Member George Hopkins moved to approve Consent Agenda Items #2 and #4, with a second from Board Member Phil Gallivan. The motion was approved by a vote of 7-0. AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 16, 2004 Materials Management Kathy DuBose Questions concerning this acquisition may be directed to Bruce Henington 349-8134 SUBJECT Consider adoption of an Ordinance accepting competitive bids by way of an interlocal Agreement with U.S. Communities and awarding a contract for the purchase of carpet; providing for the expenditure of funds therefore; and providing an effective date (File 3259-Carpet for Emily Fowler Library and Civic Center awarded to interface Americas, inc. by way of an interlocal Agreement in the amount of $58,914.66). INTERLOCAL AGREEMENT INFORMATION This acquisition is for the carpet for the Emily Fowler Library and Civic Center renovations. The interior design architect, Booziotis and Company, selected the brand, colors, and patterns. The general contractor, C.R. Reynolds, will install the carpet at both locations. The elimination of the standard general contractor mark up and the volume discount provided through the U.S. Communities interlocal Agreement will result in substantial savings to the City. The proposal is available for viewing in the office of the Purchasing Agent. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) On January 21, 2003, Council approved an interlocal Agreement with U.S. Communities Inc. RECOMMENDATION We recommend award of File 3259 to interface Americas, inc. in the amount of $58,914.66. PRINCIPAL PLACE OF BUSINESS Interface Americas, Inc. LaGrange, GA ESTIMATED SCHEDULE OF PROJECT The estimated delivery time for the carpet is 45 days. Agenda Information Sheet November 16, 2004 Page 2 FISCAL INFORMATION Funding for the carpet will be provided by account 100087445.1365.40100 in the amount of $11,284.63 (Civic Center) and account 100080445.1365.40100 in the amount of $47,630.03 (Emily Fowler Library). Respectfully submitted: Attachment 1: Proposal Summary 1-AlS-File 3259 Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1 Proposal Summary Civic Center Quantity 508.30 yds Description C21 -Interface "Transformation" # 4191 Conifer, 50cm, Glasbac backing subject to 3% material overage Price per Square Yard Total $20.36 $10,348.99 25 yds C22 - Interface, "Transformation" #4191 Conifer, 2 meter unbacked sheet goods subject to 10% material overage $20.36 $509.00 Freight estimate (80cents sy) Total $426.64 $11,284.63 Emily Fowler Library 609.96 yds C 1 -Interface "Happening TT" #5392 Hindsight, 50cm Glasbac backing subject to 3% material overage $21.24 $12,955.55 1118.26 yds 490.36 yds C2 -Interface, "Chenille Warp TT" # 1779 Hindsight, 50cm Glasbac backing subject to 2% material overage C3 - Interface, "Chenille Warp TT" #1745 Retrospective, 50cm Glasbac backing subject to 3% material overage Freight estimate (70 cents sy) $20.59 $23,024.97 $20.59 $10,096.51 $1,553.00 Total $47,630.03 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS BY WAY OF AN INTERLOCAL AGREEMENT WITH U.S. COMMUNITIES AND AWARDING A CONTRACT FOR THE PURCHASE OF CARPET; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3259-CARPET FOR EMILY FOWLER LIBRARY AND CIVIC CENTER AWARDED TO INTERFACE AMERICAS, INC. BY WAY OF AN INTERLOCAL AGREEMENT IN THE AMOUNT OF $58,914.66). WHEREAS, pursuant to Ordinance 2003-017, U.S. Communities, has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedure of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the U.S. Communities Cooperative Purchasing programs at less cost than the City would expend if bidding these items individually; 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 purchase order for materials, equipment, supplies, or services, shown in the "File" listed hereon, and on file in the office of the Purchasing Agent are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 3259 interface Americas, inc. $58,914.66 SECTION 2. That by the acceptance and approval of the above numbered items set forth in the listed file, the City accepts the offer of the persons submitting the bids to Fairfax County, Virginia for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with U.S. Communities Contract 41922, and the purchase orders issued by the City. SECTION3. That should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Tarrant County, 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 and standards contained in the Proposal submitted to U.S. Communities, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items set forth in the listed file number, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders 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-File 3259 THIS PAGE INTENTIONALLY LEFT BLANK AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 16, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Ross Chadwick 349-8830 SUBJECT Consider adoption of an Ordinance of the City of DeNon authorizing the City Manager or his designee to execute a purchase order with the Houston-Galveston Area Council of Governments (H-GAC) for the acquisition of two new ambulances by way of an Imerlocal Agreemem with the City of DeNon; authorizing the expenditure of funds therefore; and providing an effective date (File 3258-Purchase of Ambulances for Fire Departmem awarded to Jack Roach Ford in the amoum of $211,550). INTERLOCAL AGREEMENT INFORMATION This item is for the acquisition of two new Type 1 ambulances for the Fire Department through the Houston Area Council of Governmems (H-GAC Comract No. AM04-04). This comract is in place through March 31, 2006. The volume discoum afforded to H-GAC is a lower price than would be offered to the City of DeNon if purchased in smaller quamities. These new units are diesel powered, meet EPA Tier II regulations, and will replace two similar units currently in use. The older units will be moved to a reserve status. The current reserve units will be sold at auction. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISIONS) The City Council approved an Imerlocal Agreemem with H-GAC on June 6, 1995, (Ordinance 95-107), authorizing the City of DeNon participation in comracts for supplies awarded by H-GAC. RECOMMENDATION We recommend this item be awarded to Jack Roach Ford through the H-GAC contract in the amoum of $211,550. PRINCIPAL PLACE OF BUSINESS Jack Roach Ford Houston, TX Agenda Information Sheet November 16, 2004 Page 2 ESTIMATED SCHEDULE OF PROJECT Delivery of the ambulances is estimated to be 45 days after receipt of an order. FISCAL INFORMATION During the 2004-05 budget development process, Council approved the issuance of Certificates of Obligation to purchase vehicles for various City Departments, which included two ambulances. Funding will be provided from Motor Pool account 810001.8535. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Attachment 2: 1-AlS-File 3258 H-GAC contract pricing Quote for Ambulance and Options LEADERS IN CUSTOM FABR/CA TING Attachment 2 Frazer, Ltd. P.O. Box 5000 IBellaire, TX 77402-5000 PHONE (713) 772-5511 FAX (713) 995-0541 (888) 372-9371 August 24, 2004 Mr. Joe Ha,~"ris Denton Fire Department Fax: 940-349-7122 Quote #4113-HGAC Below is itemized pricing for two (2) Type I 12' generator powered modules mounted on 2005 Ford F-350 diesel chassis. Series AC01 Type I Light Duty Ford 12' module (Form D) Published Options,Worm EL.' Wig wag headlights, relay (Code 3 360HL) Single Buell 10" ak horn system with compressor Siren in addition to siren quoted with unit (Whelen WS295HFSA1) 10 volt outlet w/cord ejector - unit shall eject electrical cord from outlet when ignition engaged on chassis (x 2) Antenna, cable and mounting (2) Interior storage compartment modifications/additions (each) (x 2) Steps on truck cab (FPPSTEP) Painted wheels 3M Opticom off door switch (FPPOPT) Lighting modification from base (FPPLM) Fteetco ak suspension with kneeling (FPPAS) Small aluminum map holder (FPPMH1) (x 2) Large aluminum map holder (FPPMH2) (x 3) 2 High "D" cylinder holder (FPPDH 1) Double aluminum std. glove box holder (FPPGH2) Module and chassis two colors (FPPTT) CPR cabinet (FPPCPR) Interior single squad bench cabinet (FPPSB) (x 2) Paddings (IATS) (FPPAD) Sharps container & brackets (IATS) (FPPSHARP) SmaI1 needle pouch (FPPP2) Akro bins (36 small, 12 large) (FPPAB1) Chassis upgrade to XLT 'EVAC Hi-Bac child safety seat Oxygen regulator and cylinder changing wrench Large locking aluminum drug box Lip at bottom of front I/O $ 79,000.00 $ 5O.OO $ 1,300.00 $ 450.00 800.00 100.00 1,000.00 375.00 400.00 1,750.00 500.00 4,200.00 300.00 525.00 150.00 150.00 1,800.00 9o0.00 500.O0 75.0O 75.00 125.00 325.00 5,000.00 650.00 150.00 175.00 50.00 #93EX cot/mattress - Ferno (93EX) Furnish Ferno antler and bar Complete set of Helm automotive manuals for maintenance Total (each) $ 3,700.00 $ 200.00 $ 500.O0 $ 105,275.00 Total (2) $ 210,550.00 HGAC Fee $ 1,000.00 Grand Total $ 211,550.00 Please make your purchase order out to Jack Roach Ford (6445 Southwest Freeway, Houston, TX 77074) and fax it to Tim Kettle at 281-588-5428. Also, please send a copy of the purchase order and this quote to La Wanda James with HGAC at 713-993-4548. Best Regards, Laura Richardson Frazer, Ltd. ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE ORDER WITH THE HOUSTON- GALVESTON AREA COUNCIL OF GOVERNMENTS (H-GAC) FOR THE ACQUISITION OF TWO NEW AMBULANCES BY WAY OF AN INTERLOCAL AGREEMENT WITH THE CITY OF DENTON; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3258-PURCHASE OF AMBULANCES FOR FIRE DEPARTMENT AWARDED TO JACK ROACH FORD IN THE AMOUNT OF $211,550). WHEREAS, pursuant to Ordinance 95-107, the Houston-Galveston Council Area of Government (H-GAC) 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 on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Houston-Galveston Area Council of Government (H-GAC) programs at less cost than the City would expend if bidding these items individually; 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 purchase order for materials, equipment, supplies, or services, shown in the "File Number" referenced herein and on file in office of the Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: FILE NUMBER VENDOR AMOUNT 3258 Jack Roach Ford $211,550 SECTION 2. That by the acceptance and approval of the above numbered items set forth in the referenced purchase orders, the City accepts the offer of the persons submitting the bids to the H-GAC for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the H-GAC, and the purchase orders issued by the City. SECTION 3. That should the City and persons submitting approved and accepted items set forth in the referenced purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the H-GAC, 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 and standards contained in the Proposal submitted to the H-GAC, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items set forth in the referenced purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approval purchase orders 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 File 3258 Purchase of Ambulances AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 16, 2004 Materials Management Kathy DuBose Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a comract for Childcare Expansion Program for Low-Income Children; providing for the expenditure of funds therefore; and providing for an effective date (Bid 3254-Childcare Expansion Program for Low-Income Children awarded to DeNon Christian Preschool in the amoum of $30,336). BID INFORMATION The Childcare Expansion Program for Low-Income Children will provide licensed childcare services on a sliding fee scale to at-risk preschool children from low-income households. The children are ages three and four years old, and are at-risk of not succeeding in the public school system without early intervention. RECOMMENDATION We recommend this be awarded to the sole bidder, DeNon Christian Preschool, in the amoum of $30,336. PLACE OF BUSINESS Denton Christian Preschool Denton, TX ESTIMATED SCHEDULE OF PROJECT This agreemem shall commence upon approval and terminate on September 30, 2005, unless the contract is sooner terminated under Section VII "Suspension or Termination" of the contract agreement. FISCAL INFORMATION CDBG funds have been appropriated for this program from accoum 220099.7762 325307 A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet Attachment 1 Bid :~ 3254 DATE: 10/26/04 CHILDCARE EXPANSION PROGRAM FOR LOW INCOME CHILDREN l/ Denton Christian Preschool J Principle Place of Business: Denton, TX TOTAL BID PRICE $30,336.00 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR CHiLDCARE EXPANSION PROGRAM FOR LOW-INCOME CHILDREN; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (BID 3254-CHiLDCARE EXPANSION PROGRAM FOR LOW-iNCOME CHILDREN AWARDED TO DENTON CHRiSTiAN PRESCHOOL IN THE AMOUNT OF $30,336). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipmem, 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, equipmem, 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, equipmem, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following competitive bids for materials, equipmem, supplies, or services, described in the "Bid Proposals" on file in the office of City's Purchasing Agem filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BiD iTEM NUMBER NO. CONTRACTOR AMOUNT 3254 1 DeNon Christian Preschool $30,336 SECTION 2. That the acceptance and approval of the above competitive bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipmem, supplies or services in accordance with the terms, specifications, standards, quamities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That 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 represemative is hereby authorized to execute the written contracts 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 documems herein approved and accepted. SECTION 4. That by the acceptance and approval of the above competitive 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 the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3254 2004-2005 SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON CHRISTIAN PRESCHOOL This Agreemem is hereby emered imo by and between the City of DeNon, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and DeNon Christian Preschool, 1114 West University Drive, Denton, TX 76201, a non-profit corporation, hereinafter referred to as "Organization"; WHEREAS, City's Human Services Advisory Committee ("HSAC") has reviewed the proposal for services and has determined that Organization performs an importam service for the residems of DeNon without regard to race, religion, color, age or national origin, and HSAC recommends the purchase of services; and WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; NOW, THEREFORE, the parties hereto mutually agree as follows: SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: mo Provide low cost day care for at least eleven children between the ages of 3 and 4 years old from low-income households who would not have been served by the Organization without CITY funds. Provide day care between 8:30 a.m. and 11:30 a.m. Monday through Friday and provide one full meal and snack to the children daily. Co Organization shall perform those services described in the Work Statemem herein attached as Exhibit A. e OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: mo Thirty Thousand Three Hundred and Thirty Six Dollars ($30,336.00) may be paid to Organization by City, and the only expenditures reimbursed from these funds, shall be Page 1 of 18 those in accordance with the project budget, attached hereto as Exhibit B and incorporated herein by reference, for those expenses listed in the scope of services as provided herein. Organization shall not utilize these funds for any other purpose. It will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the program. C. It will permit authorized officials of City to review its books at any time. It will reduce to writing all of its rules, regulations, and policies and file a copy with City's Community Development Division along with any amendments, additions, or revi- sions whenever adopted. It will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. It will promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to City's Community Development Division for further direction. It will appoint a representative who will be available to meet with City officials when requested. It will indemnify and hold harmless City from any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. I. It will submit to City copies of year-end audited financial statements. e TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: October 1, 2004 through September 30, 2005, unless the contract is sooner terminated under Section 7 "Suspension or Termination". COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS Organization shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton. Page 2 of 18 REPRESENTATIONS Organization assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. The person or persons signing and executing this Agreement on behalf of Organization, do hereby warrant and guarantee that he, she, or they have been fully authorized by Organization to execute this Agreement on behalf of Organization and to validly and legally bind Organization to all terms, performances and provisions herein set forth. City shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either Organization or the person signing the Agreement to enter into this Agreement. Organization is liable to City for any money it has received from City for performance of the provisions of this Agreement if City has suspended or terminated this Agreement for the reasons enumerated in this Section. Organization agrees that the funds and resources provided Organization under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, Organization had this Agreement not been executed. e COVENANTS During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, Organization shall not, without the prior written consent of the Community Development Administrator or her authorized representative: Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of Organization now owned or hereafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of Organization which are allocated to the performance of this Agreement and with respect to which City has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. Page 3 of 18 (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to Organization by City, unless City authorizes such transfer. Organization agrees, upon written request by City, to require its employees to attend training sessions sponsored by the Community Development Division. e PAYMENTS PAYMENTS TO ORGANIZATION. City shall pay to Organization a maximum amount of money not to exceed Thirty Thousand Three Hundred and Thirty Six Dollars ($30,336.00) for services rendered under this Agreement. City will pay these funds on a reimbursement basis to Organization within 20 days after City has received supporting documentation. Organization's failure to request reimbursement on a timely basis, may jeopardize present or future funding. EXCESS PAYMENT. Organization shall refund to City within ten working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: (1) has resulted in overpayment to Organization; or (2) has not been spent strictly in accordance with the terms of this Agreement; or (3) is not supported by adequate documentation to fully justify the expenditure. Organization's reimbursement request for any one month period will not exceed one-fifth (1/5) of any budgeted line items for costs as specified in Exhibit B. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance, as specified in Exhibit A, City hereby reserves the right to reappropriate or recapture any such under expended funds. If City finds that Organization is unwilling and/or unable to comply with any of the terms of this Contract, City may require a refund of any and all money expended pursuant to this Contract by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Contract. CONTRACT CLOSE OUT. Organization shall submit the contract close out package to City, together with a final expenditure report, for the time period covered by the last invoice requesting reimbursement of funds under this Agreement, within 15 working days Page 4 of 18 following the close of the contract period. Organization shall utilize the form agreed upon by City and Organization. ge MAINTENANCE OF RECORDS Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement, in compliance with the provisions of Exhibit B, attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve Organization of fiscal accountability and liability under any other provision of this Agreement or any applicable law. Organization shall include the substance of this provision in all subcontracts. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the operation of programs and expenditures of funds under this Agreement for five years. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Agreement. At any reasonable time and as often as City may deem necessary, the Organization shall make available to City, HUD, or any of their authorized representatives, all of its records and shall permit City, HUD, or any of their authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said representatives. e REPORTS AND INFORMATION At such times and in such form as City may require, Organization shall furnish such statements, records, data and information as City may request and deem pertinent to matters covered by this Agreement. Organization shall submit quarterly beneficiary and financial reports to City no less than once each three months. The beneficiary report shall detail client information, including race, income, female head of household and other statistics required by City. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section 1 of this Agreement. Page 5 of 18 Unless the City has granted a written exemption, Organization shall submit an audit conducted by independent examiners with ten days after receipt of such. 10. EVALUATION Organization agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Organization agrees to make available its financial records for review by City at City's discretion. In addition, Organization agrees to provide City the following data and reports, or copies thereofi All external or internal audits. Organization shall submit a copy of the annual independent audit to City within ten days of receipt. B. All external or internal evaluation reports. Quarterly performance/beneficiary reports to be submitted in January, April, July and September, to include such information as requested by the City' Community Development Division including but not limited to: number of persons or households assisted, race, gender, disability status and household income. Beneficiary reports shall be due to City within 15 working days after the completion of each quarter. Organization agrees to submit quarterly financial statements in January, April, July, and September. Each statement shall include current and year-to-date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Financial reports shall be due to City within 15 working days after the completion of each quarter. E. An explanation of any major changes in program services. To comply with this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for the period of time and under the conditions specified by the City. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement. Page 6 of 18 11. DIRECTOR'S MEETINGS During the term of this Agreement, Organization shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Organization understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Organization's governing body shall be available to City within 10 days after Board approval. 12. SUSPENSION OR TERMINATION The City may terminate this Agreement with cause if the Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, Organization will be paid an amount not to exceed the total amount of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount, which bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. 13. PERSONNEL POLICIES Personnel policies shall be established by Organization and shall be available for examination. Such personnel policies shall: Be no more liberal than City's personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of Organization and by City. Page 7 of 18 mo Co Do mo Co Do mo 14. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS Organization will submit for City approval, a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within one hundred twenty (120) days of the effective date of this Agreement. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. Organization will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. In the event of Organization's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. 15. WARRANTIES Organization represents and warrants that: All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of Organization. No litigation or legal proceedings are presently pending or threatened against Organization. None of the provisions herein contravene or are in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. Page 8 of 18 None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. 16. CHANGES AND AMENDMENTS Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. Organization may not make transfers between or among approved line items within budget categories set forth in Exhibit B without prior written approval of the Community Development Administrator for the City. Organization shall request, in writing, the budget revision in a form prescribed by City, and such request for revision shall not increase the total monetary obligation of City under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. Organization will submit revised budget and program information, whenever the level of funding for Organization or the program(s) described herein is altered according to the total levels contained in any portion of Exhibit B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. City may, from time to time during the term of the Agreement, request changes in Exhibit A which may include an increase or decrease in the amount of Organization's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. Any alterations, deletions, or additions to the Contract Budget Detail incorporated in Exhibit B shall require the prior written approval of City. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least 30 calendar days in advance of the change. Organization shall notify City of any changes in personnel or governing board composition. Page 9 of 18 It is expressly understood that neither the performance of Exhibit A for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. 17. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm corporation or other entity against Organization, Organization shall give written notice thereof to City within two working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail. 18. INDEMNIFICATION mo It is expressly understood and agreed by both parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, its agents or employees. 19. INSURANCE mo Organization shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. The premises on and in which the activities described in Exhibit A are conducted, the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with City named as an additional Page 10 of 18 Co Do mo Fo mo Co insured. Upon request of Organization, City may, at its sole discretion, approve alternate insurance coverage arrangements. Organization will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. Organization will maintain adequate and continuous liability insurance on all vehicles owned, leased, or operated by Organization. All employees of Organization who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas Driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in Organization's files. Actual losses are not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of Organization. The policy or policies of insurance shall contain a clause which requires that City and Organization be notified in writing of any cancellation or change in the policy at least 30 days prior to such change or cancellation. 20. CONFLICT OF INTEREST Organization covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Organization further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. Organization further covenants that no member of its governing body or its staff, subcon- tractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his or her personal interest or the interest in any corporation, partnership, or association in which he or she has a direct or indirect interest. Page 11 o£ 18 21. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Organization, or is a member of Organization's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, stepparent, stepchild, half-brother and half-sister. 22. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Denton Christian Preschool ATTN: Director 1114 West University Denton, TX 76201 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. 23. MISCELLANEOUS mo Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Co In no event shall any payment to Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, Page 12 of 18 powers, privileges, or remedies are always specifically preserved. No represeNative or agent of City may waive the effect of this provision. Do This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendmeN of this AgreemeN. mo In the even any disagreemeN or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances, or regulations, City as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. Fo This AgreemeN shall be iNerpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in DeNon County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this AgreemeN as of the day of ,2004. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS CITY SECRETARY MICHAEL A. CONDUFF CITY MANAGER BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY CITY ATTORNEY BY: Page 13 of 18 DENTON CHRISTIAN PRESCHOOL ATTEST: BY: DIRECTOR BY: BOARD SECRETARY Page 14 of 18 EXHIBIT A SCOPE OF SERVICES Denton Christian Preschool The Scope of Services under this Agreemem shall be as follows: SECTION I - ACTIVITY ORGANIZATION shall provide quality low cost day care for the residents of Denton Beneficiaries of the services to be provided hereunder must reside in the City of DeNon and ORGANIZATION shall provide children between the ages of 3 and 4 years old from low-income households who would not have been served by the organization without CITY funds. SECTION II - SERVICES In order to complete the agreed upon activity ORGANIZATION shall provide the following services: · Provide day care between 8:30 a.m. and 11:30 a.m. every Monday through Friday during the contract year with the exception of designated holidays. · The children will be served at least one complete meal and at least one snack each day. The meals and snacks will meet all nutrition requirements set forth by the State Child Care Food Program. · Provide a developmemally appropriate pre-school education for the children served. · Provide medical and diagnostic screenings. · Provide parem and family education through monthly family nights. · Provide transportation for the children to and from school and its activities. · Must meet or exceed the Texas Department of Human Services minimum licensing standards for Child Care Cemers. · Make bilingual education available to children who speak Spanish as their primary language. Page 15 o£ 18 SECTION III - UNIT OF SERVICE A unit of service will be the tool by which the CITY and the ORGANIZATION can measure performance under this agreemem. A unit of service shall be defined as childcare and appropriate services to a household as described in Section II - Services SECTION IV - GOALS ORGANIZATION shall provide childcare services to not less than 11 more households than could be served without CITY funding. The total number of units of service required constitutes the performance target for the ORGANIZATION under this Agreement. The ORGANIZATION will provide services to approximately 110 total children during FY 2004-2005 persons during the term on this Agreemem. In addition, at least 10 of the children served in the additional 3-4 year old classroom will be City of DeNon residems. ORGANIZATION shall provide the services listed in this Agreemem within the monetary limits contained in Exhibit B, entitled "Budget", attached hereto and incorporated by reference herein. In no event shall compensation to the ORGANIZATION exceed the lesser of the ORGANIZATION's costs attributable to the work performed as stated herein, or sum of Thirty Thousand Three Hundred and Thirty Six Dollars ($30,336). Direct Service Outcome SECTION V - OUTCOMES · Quality early childhood education in preparation for school readiness · The children will be served at least one complete meal and at least one snack each day. The meals and snacks will meet all nutrition requirements set forth by the State Child Care Food Program. · Improved health and welfare through nutritional meals as well as medical and diagnostic screenings. · Parem and family education through monthly family nights. Community Outcome The Denton Christian Preschool assists the City of Denton in the provision of services necessary to: (1) ensure safe, affordable quality childcare is available to low-income families (2) cominue allocation of scarce resources to meet urgent community needs, as omlined in the 2000-2005 City of DeNon Consolidated Plan as Human Services objectives. The DeNon Christian Preschool benefits the citizens of the City of DeNon by providing quality early childhood education as an imegral part of building a better community. Page 16 of 18 Exhibit B Budget Denton Christian Preschool Allowable Expenditure Budget Amount Staff Salaries $30,336.00 Total $30,336.00 The Demon Christian Preschool will be reimbursed on a fee for service basis for services provided to residents of Denton. Denton Christian Preschool may submit monthly or quarterly reimbursemem requests for staff salaries. The following staff positions may be reimbursed by the City of Denton: Assistant Director, Pan-time Teacher, Bilingual Translator, and/or Pan-time Van Driver. Reimbursement requests must include time sheets and copies of paychecks or pay stubs for the salaries for which reimbursemem is being requested. Page 17 of 18 Date: 2004-2005 Exhibit C Qualifying Income Limits for Federally Assisted Programs Maximum Income Levels Family Size 1 2 3 4 5 6 7 8 Moderate Income 80% AMI - <65% AMI $37,250- $30,251 $42,550-$34,601 $47,900 - $38,901 $53,200- $43,251 $57,450- $46,701 $61,700- $50,151 $65,950-$53,601 $70,200- $57,051 Source: Low Income 65% AMI - <50% AMI Very-Low Income 50% AMI - <30% AMI Extremely-Low Income _<30% AMI $30,250- $23,301 $34,600- $26,601 $38,900- $29,951 $43,250- $33,251 $46,700- $35,901 $50,150- $38,551 $53,600- $41,251 $57,050- $43,901 $23,300- $13,951 $26,600- $15,951 $29,950-$17,951 $33,250- $19,951 $35,900- $21,551 $38,550- $23,151 $41,250- $24,751 $43,900- $26,351 $13,950 or Below $15,950 or Below $17,950 or Below $19,950 or Below $21,550 or Below $23,150 or Below $24,750 or Below $26,350 or Below U.S. Department of Housing and Urban Development Effective: October 2003 Page 18 of 18 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 16, 2004 Materials Management Kathy DuBose Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a comract for Childcare Expansion Program for Low-Income Children; providing for the expenditure of funds therefore; and providing for an effective date (Bid 3254-Childcare Expansion Program for Low-Income Children awarded to DeNon Christian Preschool in the amoum of $30,336). BID INFORMATION The Childcare Expansion Program for Low-Income Children will provide licensed childcare services on a sliding fee scale to at-risk preschool children from low-income households. The children are ages three and four years old, and are at-risk of not succeeding in the public school system without early intervention. RECOMMENDATION We recommend this be awarded to the sole bidder, DeNon Christian Preschool, in the amoum of $30,336. PLACE OF BUSINESS Denton Christian Preschool Denton, TX ESTIMATED SCHEDULE OF PROJECT This agreemem shall commence upon approval and terminate on September 30, 2005, unless the contract is sooner terminated under Section VII "Suspension or Termination" of the contract agreement. FISCAL INFORMATION CDBG funds have been appropriated for this program from accoum 220099.7762 325307 A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet Attachment 1 Bid :~ 3254 DATE: 10/26/04 CHILDCARE EXPANSION PROGRAM FOR LOW INCOME CHILDREN l/ Denton Christian Preschool J Principle Place of Business: Denton, TX TOTAL BID PRICE $30,336.00 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR CHiLDCARE EXPANSION PROGRAM FOR LOW-INCOME CHILDREN; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (BID 3254-CHiLDCARE EXPANSION PROGRAM FOR LOW-iNCOME CHILDREN AWARDED TO DENTON CHRiSTiAN PRESCHOOL IN THE AMOUNT OF $30,336). WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipmem, 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, equipmem, 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, equipmem, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following competitive bids for materials, equipmem, supplies, or services, described in the "Bid Proposals" on file in the office of City's Purchasing Agem filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BiD iTEM NUMBER NO. CONTRACTOR AMOUNT 3254 1 DeNon Christian Preschool $30,336 SECTION 2. That the acceptance and approval of the above competitive bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipmem, supplies or services in accordance with the terms, specifications, standards, quamities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That 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 represemative is hereby authorized to execute the written contracts 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 documems herein approved and accepted. SECTION 4. That by the acceptance and approval of the above competitive 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 the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3254 2004-2005 SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON CHRISTIAN PRESCHOOL This Agreemem is hereby emered imo by and between the City of DeNon, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and DeNon Christian Preschool, 1114 West University Drive, Denton, TX 76201, a non-profit corporation, hereinafter referred to as "Organization"; WHEREAS, City's Human Services Advisory Committee ("HSAC") has reviewed the proposal for services and has determined that Organization performs an importam service for the residems of DeNon without regard to race, religion, color, age or national origin, and HSAC recommends the purchase of services; and WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; NOW, THEREFORE, the parties hereto mutually agree as follows: SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: mo Provide low cost day care for at least eleven children between the ages of 3 and 4 years old from low-income households who would not have been served by the Organization without CITY funds. Provide day care between 8:30 a.m. and 11:30 a.m. Monday through Friday and provide one full meal and snack to the children daily. Co Organization shall perform those services described in the Work Statemem herein attached as Exhibit A. e OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: mo Thirty Thousand Three Hundred and Thirty Six Dollars ($30,336.00) may be paid to Organization by City, and the only expenditures reimbursed from these funds, shall be Page 1 of 18 those in accordance with the project budget, attached hereto as Exhibit B and incorporated herein by reference, for those expenses listed in the scope of services as provided herein. Organization shall not utilize these funds for any other purpose. It will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the program. C. It will permit authorized officials of City to review its books at any time. It will reduce to writing all of its rules, regulations, and policies and file a copy with City's Community Development Division along with any amendments, additions, or revi- sions whenever adopted. It will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. It will promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to City's Community Development Division for further direction. It will appoint a representative who will be available to meet with City officials when requested. It will indemnify and hold harmless City from any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. I. It will submit to City copies of year-end audited financial statements. e TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: October 1, 2004 through September 30, 2005, unless the contract is sooner terminated under Section 7 "Suspension or Termination". COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS Organization shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton. Page 2 of 18 REPRESENTATIONS Organization assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. The person or persons signing and executing this Agreement on behalf of Organization, do hereby warrant and guarantee that he, she, or they have been fully authorized by Organization to execute this Agreement on behalf of Organization and to validly and legally bind Organization to all terms, performances and provisions herein set forth. City shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either Organization or the person signing the Agreement to enter into this Agreement. Organization is liable to City for any money it has received from City for performance of the provisions of this Agreement if City has suspended or terminated this Agreement for the reasons enumerated in this Section. Organization agrees that the funds and resources provided Organization under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, Organization had this Agreement not been executed. e COVENANTS During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, Organization shall not, without the prior written consent of the Community Development Administrator or her authorized representative: Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of Organization now owned or hereafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of Organization which are allocated to the performance of this Agreement and with respect to which City has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. Page 3 of 18 (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to Organization by City, unless City authorizes such transfer. Organization agrees, upon written request by City, to require its employees to attend training sessions sponsored by the Community Development Division. e PAYMENTS PAYMENTS TO ORGANIZATION. City shall pay to Organization a maximum amount of money not to exceed Thirty Thousand Three Hundred and Thirty Six Dollars ($30,336.00) for services rendered under this Agreement. City will pay these funds on a reimbursement basis to Organization within 20 days after City has received supporting documentation. Organization's failure to request reimbursement on a timely basis, may jeopardize present or future funding. EXCESS PAYMENT. Organization shall refund to City within ten working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: (1) has resulted in overpayment to Organization; or (2) has not been spent strictly in accordance with the terms of this Agreement; or (3) is not supported by adequate documentation to fully justify the expenditure. Organization's reimbursement request for any one month period will not exceed one-fifth (1/5) of any budgeted line items for costs as specified in Exhibit B. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance, as specified in Exhibit A, City hereby reserves the right to reappropriate or recapture any such under expended funds. If City finds that Organization is unwilling and/or unable to comply with any of the terms of this Contract, City may require a refund of any and all money expended pursuant to this Contract by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Contract. CONTRACT CLOSE OUT. Organization shall submit the contract close out package to City, together with a final expenditure report, for the time period covered by the last invoice requesting reimbursement of funds under this Agreement, within 15 working days Page 4 of 18 following the close of the contract period. Organization shall utilize the form agreed upon by City and Organization. ge MAINTENANCE OF RECORDS Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement, in compliance with the provisions of Exhibit B, attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve Organization of fiscal accountability and liability under any other provision of this Agreement or any applicable law. Organization shall include the substance of this provision in all subcontracts. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the operation of programs and expenditures of funds under this Agreement for five years. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Agreement. At any reasonable time and as often as City may deem necessary, the Organization shall make available to City, HUD, or any of their authorized representatives, all of its records and shall permit City, HUD, or any of their authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said representatives. e REPORTS AND INFORMATION At such times and in such form as City may require, Organization shall furnish such statements, records, data and information as City may request and deem pertinent to matters covered by this Agreement. Organization shall submit quarterly beneficiary and financial reports to City no less than once each three months. The beneficiary report shall detail client information, including race, income, female head of household and other statistics required by City. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section 1 of this Agreement. Page 5 of 18 Unless the City has granted a written exemption, Organization shall submit an audit conducted by independent examiners with ten days after receipt of such. 10. EVALUATION Organization agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Organization agrees to make available its financial records for review by City at City's discretion. In addition, Organization agrees to provide City the following data and reports, or copies thereofi All external or internal audits. Organization shall submit a copy of the annual independent audit to City within ten days of receipt. B. All external or internal evaluation reports. Quarterly performance/beneficiary reports to be submitted in January, April, July and September, to include such information as requested by the City' Community Development Division including but not limited to: number of persons or households assisted, race, gender, disability status and household income. Beneficiary reports shall be due to City within 15 working days after the completion of each quarter. Organization agrees to submit quarterly financial statements in January, April, July, and September. Each statement shall include current and year-to-date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Financial reports shall be due to City within 15 working days after the completion of each quarter. E. An explanation of any major changes in program services. To comply with this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for the period of time and under the conditions specified by the City. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement. Page 6 of 18 11. DIRECTOR'S MEETINGS During the term of this Agreement, Organization shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Organization understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Organization's governing body shall be available to City within 10 days after Board approval. 12. SUSPENSION OR TERMINATION The City may terminate this Agreement with cause if the Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, Organization will be paid an amount not to exceed the total amount of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount, which bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. 13. PERSONNEL POLICIES Personnel policies shall be established by Organization and shall be available for examination. Such personnel policies shall: Be no more liberal than City's personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of Organization and by City. Page 7 of 18 mo Co Do mo Co Do mo 14. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS Organization will submit for City approval, a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within one hundred twenty (120) days of the effective date of this Agreement. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. Organization will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. In the event of Organization's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. 15. WARRANTIES Organization represents and warrants that: All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of Organization. No litigation or legal proceedings are presently pending or threatened against Organization. None of the provisions herein contravene or are in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. Page 8 of 18 None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. 16. CHANGES AND AMENDMENTS Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. Organization may not make transfers between or among approved line items within budget categories set forth in Exhibit B without prior written approval of the Community Development Administrator for the City. Organization shall request, in writing, the budget revision in a form prescribed by City, and such request for revision shall not increase the total monetary obligation of City under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. Organization will submit revised budget and program information, whenever the level of funding for Organization or the program(s) described herein is altered according to the total levels contained in any portion of Exhibit B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. City may, from time to time during the term of the Agreement, request changes in Exhibit A which may include an increase or decrease in the amount of Organization's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. Any alterations, deletions, or additions to the Contract Budget Detail incorporated in Exhibit B shall require the prior written approval of City. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least 30 calendar days in advance of the change. Organization shall notify City of any changes in personnel or governing board composition. Page 9 of 18 It is expressly understood that neither the performance of Exhibit A for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. 17. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm corporation or other entity against Organization, Organization shall give written notice thereof to City within two working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail. 18. INDEMNIFICATION mo It is expressly understood and agreed by both parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, its agents or employees. 19. INSURANCE mo Organization shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. The premises on and in which the activities described in Exhibit A are conducted, the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with City named as an additional Page 10 of 18 Co Do mo Fo mo Co insured. Upon request of Organization, City may, at its sole discretion, approve alternate insurance coverage arrangements. Organization will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. Organization will maintain adequate and continuous liability insurance on all vehicles owned, leased, or operated by Organization. All employees of Organization who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas Driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in Organization's files. Actual losses are not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of Organization. The policy or policies of insurance shall contain a clause which requires that City and Organization be notified in writing of any cancellation or change in the policy at least 30 days prior to such change or cancellation. 20. CONFLICT OF INTEREST Organization covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Organization further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. Organization further covenants that no member of its governing body or its staff, subcon- tractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his or her personal interest or the interest in any corporation, partnership, or association in which he or she has a direct or indirect interest. Page 11 o£ 18 21. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Organization, or is a member of Organization's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, stepparent, stepchild, half-brother and half-sister. 22. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 Denton Christian Preschool ATTN: Director 1114 West University Denton, TX 76201 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. 23. MISCELLANEOUS mo Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Co In no event shall any payment to Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, Page 12 of 18 powers, privileges, or remedies are always specifically preserved. No represeNative or agent of City may waive the effect of this provision. Do This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendmeN of this AgreemeN. mo In the even any disagreemeN or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances, or regulations, City as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. Fo This AgreemeN shall be iNerpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in DeNon County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this AgreemeN as of the day of ,2004. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS CITY SECRETARY MICHAEL A. CONDUFF CITY MANAGER BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY CITY ATTORNEY BY: Page 13 of 18 DENTON CHRISTIAN PRESCHOOL ATTEST: BY: DIRECTOR BY: BOARD SECRETARY Page 14 of 18 EXHIBIT A SCOPE OF SERVICES Denton Christian Preschool The Scope of Services under this Agreemem shall be as follows: SECTION I - ACTIVITY ORGANIZATION shall provide quality low cost day care for the residents of Denton Beneficiaries of the services to be provided hereunder must reside in the City of DeNon and ORGANIZATION shall provide children between the ages of 3 and 4 years old from low-income households who would not have been served by the organization without CITY funds. SECTION II - SERVICES In order to complete the agreed upon activity ORGANIZATION shall provide the following services: · Provide day care between 8:30 a.m. and 11:30 a.m. every Monday through Friday during the contract year with the exception of designated holidays. · The children will be served at least one complete meal and at least one snack each day. The meals and snacks will meet all nutrition requirements set forth by the State Child Care Food Program. · Provide a developmemally appropriate pre-school education for the children served. · Provide medical and diagnostic screenings. · Provide parem and family education through monthly family nights. · Provide transportation for the children to and from school and its activities. · Must meet or exceed the Texas Department of Human Services minimum licensing standards for Child Care Cemers. · Make bilingual education available to children who speak Spanish as their primary language. Page 15 o£ 18 SECTION III - UNIT OF SERVICE A unit of service will be the tool by which the CITY and the ORGANIZATION can measure performance under this agreemem. A unit of service shall be defined as childcare and appropriate services to a household as described in Section II - Services SECTION IV - GOALS ORGANIZATION shall provide childcare services to not less than 11 more households than could be served without CITY funding. The total number of units of service required constitutes the performance target for the ORGANIZATION under this Agreement. The ORGANIZATION will provide services to approximately 110 total children during FY 2004-2005 persons during the term on this Agreemem. In addition, at least 10 of the children served in the additional 3-4 year old classroom will be City of DeNon residems. ORGANIZATION shall provide the services listed in this Agreemem within the monetary limits contained in Exhibit B, entitled "Budget", attached hereto and incorporated by reference herein. In no event shall compensation to the ORGANIZATION exceed the lesser of the ORGANIZATION's costs attributable to the work performed as stated herein, or sum of Thirty Thousand Three Hundred and Thirty Six Dollars ($30,336). Direct Service Outcome SECTION V - OUTCOMES · Quality early childhood education in preparation for school readiness · The children will be served at least one complete meal and at least one snack each day. The meals and snacks will meet all nutrition requirements set forth by the State Child Care Food Program. · Improved health and welfare through nutritional meals as well as medical and diagnostic screenings. · Parem and family education through monthly family nights. Community Outcome The Denton Christian Preschool assists the City of Denton in the provision of services necessary to: (1) ensure safe, affordable quality childcare is available to low-income families (2) cominue allocation of scarce resources to meet urgent community needs, as omlined in the 2000-2005 City of DeNon Consolidated Plan as Human Services objectives. The DeNon Christian Preschool benefits the citizens of the City of DeNon by providing quality early childhood education as an imegral part of building a better community. Page 16 of 18 Exhibit B Budget Denton Christian Preschool Allowable Expenditure Budget Amount Staff Salaries $30,336.00 Total $30,336.00 The Demon Christian Preschool will be reimbursed on a fee for service basis for services provided to residents of Denton. Denton Christian Preschool may submit monthly or quarterly reimbursemem requests for staff salaries. The following staff positions may be reimbursed by the City of Denton: Assistant Director, Pan-time Teacher, Bilingual Translator, and/or Pan-time Van Driver. Reimbursement requests must include time sheets and copies of paychecks or pay stubs for the salaries for which reimbursemem is being requested. Page 17 of 18 Date: 2004-2005 Exhibit C Qualifying Income Limits for Federally Assisted Programs Maximum Income Levels Family Size 1 2 3 4 5 6 7 8 Moderate Income 80% AMI - <65% AMI $37,250- $30,251 $42,550-$34,601 $47,900 - $38,901 $53,200- $43,251 $57,450- $46,701 $61,700- $50,151 $65,950-$53,601 $70,200- $57,051 Source: Low Income 65% AMI - <50% AMI Very-Low Income 50% AMI - <30% AMI Extremely-Low Income _<30% AMI $30,250- $23,301 $34,600- $26,601 $38,900- $29,951 $43,250- $33,251 $46,700- $35,901 $50,150- $38,551 $53,600- $41,251 $57,050- $43,901 $23,300- $13,951 $26,600- $15,951 $29,950-$17,951 $33,250- $19,951 $35,900- $21,551 $38,550- $23,151 $41,250- $24,751 $43,900- $26,351 $13,950 or Below $15,950 or Below $17,950 or Below $19,950 or Below $21,550 or Below $23,150 or Below $24,750 or Below $26,350 or Below U.S. Department of Housing and Urban Development Effective: October 2003 Page 18 of 18 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET November 16, 2004 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a contract for Daycare Programs for Low-income Families; providing for the expenditure of funds therefore; and providing for an effective date (Bid 3255-Daycare Program for Low-income Children awarded to Fred Moore Day Nursery School, inc. in the amount of $39,640). BID INFORMATION This bid is to provide licensed childcare services on a sliding fee scale for children of low-to-moderate income working parents, parents enrolled full time in school or a training program, unemployed individuals who are actively seeking employment, and parents working and enrolled in school part time. The service accepts children of ages six weeks to five years from 7:00 A.M. to 6:00 P.M., and includes well-balanced meals and a learning development curriculum. RECOMMENDATION We recommend this be awarded to the sole bidder, Fred Moore Day Nursery School, in the amount of $39,640. PRINCIPLE PLACE OF BUSINESS Fred Moore Day Nursery School, Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT This agreement shall commence upon approval and terminate on September 30, 2005, unless sooner terminated in accordance with Section iii "Suspension or Termination" of the contract agreement. FISCAL INFORMATION CDBG funds have been appropriated for this program from account 220099.7762 216856 A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AIS-Bid 3255 Attachment 1 BID ~ 3255 DATE: 10/26/04 DAYCARE PROGRAM FOR LOW INCOME CHILDREN ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR DAYCARE PROGRAMS FOR LOW-iNCOME FAMILIES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG FOR AN EFFECTIVE DATE (BID 3255-DAYCARE PROGRAM FOR LOW-INCOME CHILDREN AWARDED TO FRED MOORE DAY NURSERY SCHOOL, iNC. iN THE AMOUNT OF $39,640). 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 following competitive bids for materials, equipment, supplies, or services, described in the "Bid Proposals" on file in the office of City's Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BiD iTEM NUMBER NO. CONTRACTOR AMOUNT 3255 1 Fred Moore Day Nursery School, Inc. $39,640 SECTION 2. That the acceptance and approval of the above competitive 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 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 contracts 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 competitive 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 the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3255 2004-2005 SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND FRED MOORE DAY NURSERY SCHOOL This Agreemem is hereby emered imo by and between the City of DeNon, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and Fred Moore Day Nursery School, 821 Crosstimbers, Denton, TX 76205, hereinafter referred to as "Organization"; WHEREAS, City's Human Services Advisory Committee ("HSAC") has reviewed the proposal for services and has determined that Organization performs an importam service for the residems of DeNon without regard to race, religion, color, age or national origin, and HSAC recommends the purchase of services; and WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; NOW, THEREFORE, the parties hereto mutually agree as follows: SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: mo To provide low cost day care for children ages 6 weeks to 5 years of age from low income families where parem(s) are working full-time, going to school full-time, attending school and working part-time, or are actively seeking employment. B. To provide two nutritional meals, breakfast and lunch, for the children it serves. Organization shall perform those services described in the Work Statemem herein attached as Exhibit A. e OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from City, Organization agrees to the following terms and conditions: mo Thirty Nine Thousand Six Hundred and Forty Dollars ($39,640.00) may be paid to Organization by City, and the only expenditures reimbursed from these funds, shall be those in accordance with the project budget, attached hereto as Exhibit B and incorporated herein by reference, for those expenses listed in the scope of services as provided herein. Organization shall not utilize these funds for any other purpose. Page 1 of 18 It will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the program. C. It will permit authorized officials of City to review its books at any time. It will reduce to writing all of its rules, regulations, and policies and file a copy with City's Community Development Office along with any amendments, additions, or revisions whenever adopted. It will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. It will promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to City's Community Development Division for further direction. It will appoint a representative who will be available to meet with City officials when requested. It will indemnify and hold harmless City from any and all claims and suits arising out of the activities of Organization, its employees, and/or contractors. I. It will submit to City copies of year-end audited financial statements. e TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frame: October 1, 2004 through September 30, 2005, unless the contract is sooner terminated under Section 7 "Suspension or Termination". COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS Organization shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton. Page 2 of 18 REPRESENTATIONS Organization assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. The person or persons signing and executing this Agreement on behalf of Organization, do hereby warrant and guarantee that he, she, or they have been fully authorized by Organization to execute this Agreement on behalf of Organization and to validly and legally bind Organization to all terms, performances and provisions herein set forth. City shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either Organization or the person signing the Agreement to enter into this Agreement. Organization is liable to City for any money it has received from City for performance of the provisions of this Agreement if City has suspended or terminated this Agreement for the reasons enumerated in this Section. Organization agrees that the funds and resources provided Organization under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, Organization had this Agreement not been executed. e COVENANTS During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, Organization shall not, without the prior written consent of the Community Development Administrator or her authorized representative: Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of Organization now owned or hereafter acquired by it, or permit any pre- existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of Organization which are allocated to the performance of this Agreement and with respect to which City has ownership hereunder. (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. Page 3 of 18 (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to Organization by City, unless City authorizes such transfer. Organization agrees, upon written request by City, to require its employees to attend training sessions sponsored by the Community Development Division. e PAYMENTS PAYMENTS TO ORGANIZATION. City shall pay to Organization a maximum amount of money not to exceed Thirty Nine Thousand Six Hundred and Forty Dollars ($39,640.00) for services rendered under this Agreement. City will pay these funds on a reimbursement basis to Organization within 20 days after City has received supporting documentation. Organization's failure to request reimbursement on a timely basis, may jeopardize present or future funding. EXCESS PAYMENT. Organization shall refund to City within ten working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: (1) has resulted in overpayment to Organization; or (2) has not been spent strictly in accordance with the terms of this Agreement; or (3) is not supported by adequate documentation to fully justify the expenditure. Organization's reimbursement request for any one month period will not exceed one-fifth (1/5) of any budgeted line items for costs as specified in Exhibit B. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance, as specified in Exhibit A, City hereby reserves the right to reappropriate or recapture any such under expended funds. If City finds that Organization is unwilling and/or unable to comply with any of the terms of this Contract, City may require a refund of any and all money expended pursuant to this Contract by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Contract. Page 4 of 18 mo mo Co Do CONTRACT CLOSE OUT. Organization shall submit the contract close out package to City, together with a final expenditure report, for the time period covered by the last invoice requesting reimbursement of funds under this Agreement, within 15 working days following the close of the contract period. Organization shall utilize the form agreed upon by City and Organization. ge MAINTENANCE OF RECORDS Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement, in compliance with the provisions of Exhibit B, attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve Organization of fiscal accountability and liability under any other provision of this Agreement or any applicable law. Organization shall include the substance of this provision in all subcontracts. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the operation of programs and expenditures of funds under this Agreement for five years. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement. At any reasonable time and as often as City may deem necessary, the Organization shall make available to City, HUD, or any of their authorized representatives, all of its records and shall permit City, HUD, or any of their authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said representatives. e REPORTS AND INFORMATION At such times and in such form as City may require, organization shall furnish such statements, records, data and information as City may request and deem pertinent to matters covered by this Agreement. Organization shall submit quarterly beneficiary and financial reports to City no less than once each three months. The beneficiary report shall detail client information, including race, income, female head of household and other statistics required by City. The financial report shall Page 5 of 18 include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section 1 of this Agreement. Unless the City has granted a written exemption, Organization shall submit an audit conducted by independent examiners with ten days after receipt of such. 10. EVALUATION Organization agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Organization agrees to make available its financial records for review by City at City's discretion. In addition, Organization agrees to provide City the following data and reports, or copies thereofi All external or internal audits. Organization shall submit a copy of the annual independent audit to City within ten days of receipt. B. All external or internal evaluation reports. Quarterly performance/beneficiary reports to be submitted in January, April, July and September, to include such information as requested by the City's Community Development Division including but not limited to: number of persons or households assisted, race, gender, disability status and household income. Beneficiary reports shall be due to City within 15 working days after the completion of each quarter. Organization agrees to submit quarterly financial statements in January, April, July, and September. Each statement shall include current and year-to-date period accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Financial reports shall be due to City within 15 working days after the completion of each quarter. E. An explanation of any major changes in program services. To comply with this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Organization's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Organization agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for the period of time and under the conditions specified by the City. Nothing in the above subsections shall be construed to relieve Organization of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement. Page 6 of 18 11. DIRECTORS' MEETINGS During the term of this Agreement, Organization shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Organization understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of Organization's governing body shall be available to City within ten days after Board approval. 12. SUSPENSION OR TERMINATION The City may terminate this Agreement with cause if the Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, Organization will be paid an amount not to exceed the total amount of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount, which bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. 13. PERSONNEL POLICIES Personnel policies shall be established by Organization and shall be available for examination. Such personnel policies shall: Be no more liberal than City's personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of Organization and by City. Page 7 of 18 14. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS Organization will submit for City approval, a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within 120 days of the effective date of this Agreement. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. Organization will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. In the event of Organization's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. 15. WARRANTIES Organization represents and warrants that: All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of Organization. No litigation or legal proceedings are presently pending or threatened against Organization. None of the provisions herein contravene or are in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. Page 8 of 18 None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. 16. CHANGES AND AMENDMENTS Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. Organization may not make transfers between or among approved line items within budget categories set forth in Exhibit B without prior written approval of the Community Development Administrator for the City. Organization shall request, in writing, the budget revision in a form prescribed by City, and such request for revision shall not increase the total monetary obligation of City under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. Organization will submit revised budget and program information, whenever the level of funding for Organization or the program(s) described herein is altered according to the total levels contained in any portion of Exhibit B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. City may, from time to time during the term of the Agreement, request changes in Exhibit A which may include an increase or decrease in the amount of Organization's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. Any alterations, deletions, or additions to the Contract Budget Detail incorporated in Exhibit B shall require the prior written approval of City. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least 30 calendar days in advance of the change. Organization shall notify City of any changes in personnel or governing board composition. Page 9 of 18 It is expressly understood that neither the performance of Exhibit A for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. 17. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm corporation or other entity against Organization, Organization shall give written notice thereof to City within two working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail. 18. INDEMNIFICATION mo It is expressly understood and agreed by both parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, its agents or employees. 19. INSURANCE mo Organization shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. The premises on and in which the activities described in Exhibit A are conducted, the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with City named as an additional Page 10 of 18 Co Do mo Fo mo Co insured. Upon request of Organization, City may, at its sole discretion, approve alternate insurance coverage arrangements. Organization will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. Organization will maintain adequate and continuous liability insurance on all vehicles owned, leased, or operated by Organization. All employees of Organization who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas Driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in Organization's files. Actual losses are not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of Organization. The policy or policies of insurance shall contain a clause which requires that City and Organization be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. 20. CONFLICT OF INTEREST Organization covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Organization further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. Organization further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his or her personal interest or the interest in any corporation, partnership, or association in which he or she has a direct or indirect interest. Page 11 o£ 18 21. NEPOTISM Organization shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Organization, or is a member of Organization's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, stepparent, stepchild, half-brother and half-sister. 22. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to Organization or City, as the case may be, at the following addresses: CITY City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 ORGANIZATION Fred Moore Day Nursery School ATTN: Laura Williams 821 Crosstimbers Denton, TX 76205 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. 23. MISCELLANEOUS mo Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Co In no event shall any payment to Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, Page 12 of 18 powers, privileges, or remedies are always specifically preserved. No represeNative or agent of City may waive the effect of this provision. Do This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendmeN of this AgreemeN. mo In the even any disagreemeN or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances, or regulations, City as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. Fo This AgreemeN shall be iNerpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in DeNon County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this AgreemeN as of the day of ,2004. CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS CITY SECRETARY BY: MICHAEL A. CONDUFF CITY MANAGER BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 13 of 18 FRED MOORE DAY NURSERY SCHOOL ATTEST: BY: DIRECTOR BY: BOARD SECRETARY Page 14 of 18 EXHIBIT A SCOPE OF SERVICES Fred Moore Day Nursery School The Scope of Services under this Agreemem shall be as follows: SECTION I - ACTIVITY ORGANIZATION shall provide childcare on a sliding scale to low and moderate-income families based on income and family size. Beneficiaries of the services to be provided hereunder must reside in the City of DeNon and ORGANIZATION shall provide services for children six weeks through five years of age whose parems are working and/or attending school full-time, or a combination of going to school and working full-time. In addition, parems will be required to volumeer at the childcare cemer. SECTION II - SERVICES In order to complete the agreed upon activity ORGANIZATION shall provide the following services: Provide a safe, healthy environmem that will meet the developmem needs of the child. Activities will be designed for each age group to meet the individual and group needs. The curriculum will include education emphasizing effective earning skills, creative arts, motor skills, physical developmem, speech developmem, personal hygiene and manners. Provide breakfast, lunch, and an afternoon snack for each child. All meals will meet the USDA and Texas Department of Human Services Special Nutrition food requirements for children in childcare. · Must be licensed by the Texas Department of Protective and Regulatory Services. · Must meet or exceed the Texas Department of Human Services minimum standards for Day Care Centers. · Must be a North Cemral Texas Childcare Services designated vendor. · Provide operation hours from 7:00 a.m. to 6:00 p.m. Monday through Friday. Page 15 of 18 SECTION III - UNIT OF SERVICE A unit of service will be the tool by which the CITY and the ORGANIZATION can measure performance under this agreemem. A unit of service shall be defined as childcare services to a single child ages six weeks to five years as described in Section II - Services SECTION IV - GOALS Organization will conduct pre and post assessments to determine kindergarten readiness on each child emering the 4-5 year old classroom. Pre assessmems will take place in September or when the child begins the school. Post assessmems will take place in the spring. 75% of children will be able to master 90% of the pre-kindergarten goals on the post assessment test. ORGANIZATION shall provide the services listed in this Agreemem within the monetary limits contained in Exhibit B, entitled "Budget", attached hereto and incorporated by reference herein. In no event shall compensation to the ORGANIZATION exceed the lesser of the ORGANIZATION's costs attributable to the work performed as stated herein, or sum of Thirty Nine Thousand Six Hundred and Forty Dollars ($39,640.00). SECTION V - OUTCOMES Direct Service Outcome · Quality early childhood education in preparation for school readiness · The children will be served at least one complete meal and at least one snack each day. The meals and snacks will meet all nutrition requirements set forth by the State Child Care Food Program. · Increased paremal involvemem through the volumeer program. Community Outcome The Fred Moore Day Nursery School assists the City of Denton in the provision of services necessary to (1) ensure safe, affordable quality childcare is available to low-income families (2) continue allocation of scarce resources to meet urgent community needs, as outlined in the 2000- 2005 City of DeNon Consolidated Plan as Human Services objectives. The Fred Moore Day Nursery School benefits the citizens of the City of DeNon by providing quality early childhood education as an integral part of building a better community. Page 16 of 18 Exhibit B Budqet Fred Moore Day Nursery School Allowable Expenditure Budget Amount Teacher's Salaries $39,640.00 Total $39,640.00 Fred Moore Day Nursery School will be reimbursed on a fee for service basis for services provided to residents of Denton. Fred Moore Day Nursery School may submit monthly or quarterly reimbursement requests for teacher salaries. Reimbursement requests must include time sheets and copies of paychecks or pay stubs for the salaries for which reimbursement is being requested. Page 17 of 18 Date: 2004-2005 Exhibit C Qualifying Income Limits for Federally Assisted Programs Maximum Income Levels Family Size 1 2 3 4 5 6 7 8 Moderate Income 80% AMI - <65% AMI Low Income 65% AMI - <50% AMI Very-Low Income 50% AMI - <30% AMI Extremely-Low Income _<30% AMI $37,250- $30,251 $42,550- $34,601 $47,900 - $38,901 $53,200- $43,251 $57,450- $46,701 $61,700- $50,151 $65,950- $53,601 $70,200- $57,051 Source: $30,250- $23,301 $34,600- $26,601 $38,900- $29,951 $43,250- $33,251 $46,700- $35,901 $50,150- $38,551 $53,600- $41,251 $57,050 - $43,901 $23,300 - $13,951 $26,600 - $15,951 $29,950 - $17,951 $33,250- $19,951 $35,900- $21,551 $38,550- $23,151 $41,250- $24,751 $43,900- $26,351 $13,950 or Below $15,950 or Below $17,950 or Below $19,950 or Below $21,550 or Below $23,150 or Below $24,750 or Below $26,350 or Below U.S. Department of Housing and Urban Development Effective: October 2003 Page 18 of 18 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 16, 2004 Library System Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to enter into an Interlocal Cooperation Agreement with Denton County for library services; and providing an effective date. BACKGROUND Interlocal agreements between the City of Denton and the County of Denton for library services have been in effect since FY 1985-86. Under the auspices of each agreement, the Denton Public Library system agrees to provide a full array of library services, free of charge, to all residents of Denton County. The Denton Public Library will serve approximately 23,851 library users who live outside the Denton city limits this contractual year (FY 2004-2005). These Denton County residents will directly benefit from this Interlocal Cooperation Agreement as they receive the same library privileges as City of Denton residents. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Denton Library Board unanimously approved the Interlocal Agreement with Denton County at its November 4, 2004 monthly meeting. FISCAL INFORMATION The Denton County Commissioners Court has reduced its FY 2003-2004 funding allocation of $1.25 per capita to $1.10 per capita for FY 2004-2005. In addition to this reduction, the Commissioners also eliminated the $10,000 matching grant to the largest libraries in the County: Carrollton, Denton, Flower Mound, and Lewisville. Denton Public Library will therefore receive a total allocation of $126,501 for FY 2004-2005. EXHIBITS Ordinance Interlocal Cooperation Agreement Respectfully submitted: Eva Poole Director of Libraries ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO ENTER INTO AN INTERLOCAL COOPERATION AGREEMENT WITH DENTON COUNTY FOR LIBRARY SERVICES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, both the City of Denton and Denton County are political subdivisions of the State of Texas that are authorized to enter into interlocal contracts under TEX. GOV'T CODE, ch. 791 and TEX. LOCAL GOV'T CODE, ch. 323; and WHEREAS, the City Council deems it in the public interest to enter into this interlocal contract with Denton County to provide library services for Denton County; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. That the Mayor, or in her absence, the Mayor Pro Tem, is authorized to execute an Interlocal Cooperation Agreement for Library Services with Denton County substantially in the form of the contract which is attached hereto and made a part of this ordinance for all purposes. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: EULINE BROCK, MAYOR S:\Our Documents\Ordinances\04\County Library Services Agreement.doc STATE OF TEXAS, COUNTY OF DENTON INTERLOCAL COOPERATION AGREEMENT FOR LIBRARY SERVICES THIS AGREEMENT is made and entered into by and between Denton County, a political subdivision of Texas, hereinafter referred to as "COUNTY," and the Denton Public Library a municipality of Denton County, Texas, hereinafter referred to as "MUNICIPALITY." WHEREAS, COUNTY is a duty organized political subdivision of the State of Texas engaged in the administration of county government and related services for the benefit of the citizens of Denton County; and WHEREAS, the Denton Public Library is a duly organized MUNICIPALITY of Denton County, Texas engaged in the provision of library service and related services for the benefit of the citizens of I{UNICIPALITY; and WHEREAS, COUNTY has requested and MUNICIPALITY has agreed to provide library services for all residents of COUNTY; and WHEREAS, COUNTY and MUNICIPALITY mutually desire to be subject to the provisions of V.T.C.A.~ Government Code Chapter 791, the Interlocal Cooperation Act; and V.T.C.A., Local Government Code Chapter 323, County Libraries. NOW, THEREFORE, COUNTY and MI/NICIPALITY, for the mutual consideration hereinafter stated, agree and understand as follows: AGREEMENT 04-05 ] The term of this Agreement shall be for the period from October I, 2004 through September 30, 2005. II. For the purposes and consideration herein stated and contemplated, ~L~NICIPALITY shall provide library services for the residents of COIK~TY without regard to race, religion, color, age, disability and/or national origin. Upon proper proof by individual(s) of residence in CO~I~TY, such individual(s) shall be entitled to be issued, at no cost, a library card to be used in connection with said library services. M~NICIPALITY shall develop and maintain through the Library one or more of the following programs of service: Educational and reading incentive programs and materials for youth. Functional literacy materials and/or tutoring programs for adults. Job training/career development programs and/or materials for all ages. Outreach services to eliminate barriers to library services. Educational programs designed to enhance quality of life for adults. III. COUNTY designates the County Judge to act on behalf of COUNTY and serve as liaison officer for COZ~TY with and between COUNTY and MUNICIPALITY. The County Judge or his designated substitute shall insure the performance of all duties and obligations of COUNTY herein stated and shall devote sufficient time and attention to the execution of said duties on behalf of COUNTY in full compliance with the terms and conditions of this Agreement. The County Judge shall provide immediate and direct supervision of COUNTY's employees, agents, contractors, sub- contractors, and/or laborers, if any, in the furtherance of the purposes, terms and conditions of this Agreement for the mutual benefit of COUNTY and MUNICIPALITY. IV. MUNICIPALITY shall designate the Director of Library Services to act on behalf of MUNICIPALITY and to serve as liaison officer of MUNICIPALITY with and between MUNICIPALITY and COUNTY to insure the performance of all duties and obligations of MUNICIPALITY as herein stated and shall devote sufficient time and attention to the execution of said duties on behalf of MUNICIPALITY in full compliance with the terms and conditions of this Agreement. The Director of Library Services shall provide management of MUnICIPALITY's employees, agents, contractors, sub- contractors, and/or laborers, if any, in the furtherance of the purposes, terms and conditions of this Agreement for the mutual benefit of MUNICIPALITY and COUNTY. MUNICIPALITY shall provide to COUNTY a copy of the annual report submitted to the Texas State Library and shall respond to COUNTY's annual questionnaire as documentation of expenditures and provision of services. V. MUNICIPALITY shall be solely responsible for all techniques, sequences, procedures, and for the coordination of all work LIBR3%RY AGREEMENT 04-05 3 performed under the terms and conditions of this Agreement; shall insure, dedicate and devote the full time and attention of those employees necessary for the proper execution and completion of the duties and obligations of the I~IINICIPALITY stated in this Agreement; and shall give all attention necessary for such proper supervision and direction. VI. MUNICIPALITY agrees that its library department shall assume the functions of a COUNTY library and agrees to provide a librarian who holds or secures a County Librarian's certificate from the Texas State Library and Archives Commission pursuant to Local Government Code, Section 323.011(b). VII. COUNTY shall have full responsibility for the acts, and negligence of all COUNTY's employees, agents, sub-contractors, and/or contract laborers, performing work under this Agreement. VIII. MIINICIPALITY shall have responsibility for the acts and, negligence, of all the MUlqICIPALITY's employees, agents, sub- contracts, and/or contract laborers performing work under this Agreement. IX. This Agreement is not intended to extend the liability of the parties beyond that provided by law. Neither MUNICIPALITY nor COUNTY waives any immunity or defense that would otherwise be available to it against claims by third parties. MUNICIPALITY understands and agrees that the MUNICIPALITY, its employees, servants, agents and representatives shall at no time represent themselves to be employees, servants, agents and/or representatives of COUNTY. COUNTY understands and agrees that COUNTY, its employees, servants, agents and representatives shall at no time represent themselves to be employees, servants, agents, and/or representatives of MUNICIPALITY. Any notice required by this Agreement shall be delivered in writing by either County or Municipality to the following addresses. The address of County is: Mary Horn, County Judge, Denton County 110 West Hickory Denton, Texas 76201 Telephone: 940-349-2820 The address of Municipality is: Denton Public Library 3020 N. Locust St. Denton, Texas 76209 Attention:Eva Poole Telephone: 940-349-8756 For the full performance of the services above stated, COUNTY agrees to pay MUNICIPALITY fees as described herein. COUNTY shall pay MUNICIPALITY fees in the amount of $I.10 per capita, for a total of $126,501.00~ based upon North Central AGREEMENT 04-05 Texas Council of Governments population figures provided to COUNTY by the Library Advisory Board, payable in equal quarterly installments to MUNICIPALITY commencing October 1, 2004. The payments will be made from current revenues available to the COUNTY. This amount fairly compensates the MUNICIPALITY for the services performed under this agreement. XIV. This Agreement may be terminated at any time, as stated in Local Government Code 323.011(c), by either party giving six (6) months advance written notice to the other party. In the event of such termination by either party, MUNICIPALITY shall be compensated pro rata for all services performed to termination date then due and as authorized by this Agreement. In the event of such termination, should MUNICIPALITY be overcompensated on a pro rata basis for all services performed to termination date or be overcompensated, as authorized by this Agreement, COUNTY shall be reimbursed pro rata for all such overcompensation. Acceptance of such reimbursement shall not constitute a waiver of any claim that may otherwise arise out of this Agreement. XV. This Agreement represents the entire and integrated Agreement between MUNICIPALITY and COUNTY and supersedes all prior negotiations, representations and/or Agreements, either written or oral. This Agreement may be amended only by written instrument signed by both MUNICIPALITY and COUNTY. XVI. LIBRARY AGREEMENT 04-05 The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. Further, this Agreement shall be performable and all compensation payable in Denton County, Texas. XVII. In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions shall remain valid and in full force and effect to the extent possible. XVIII. The undersigned officers and/or agents of tko parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto and each party hereby certifies to the other that any necessary orders or resolutions extending said authority have been duly passed and are now in full force and effect. Executed in duplicate originals in Denton County, Texas by the authorized representatives. COUNTY MUNICIPALITY By By. Mary Horn County Judge Acting on behalf of and by the authority of the Commissioners Court of Denton County, Texas Name: Title: City Council Meeting Dated LIBRAi{¥ AGREE~{ENT 04-05 7 ATTEST: ATTEST: By Denton County Clerk By City Secretary APPROVED AS TO FORM: APPROVED AS TO FORM: Assistant District Attorney City Attorney APPROVED AS TO CONTENT: Director, Library Services LIBRARY AGREEMEN~ 04-05 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 16, 2004 Library Kathy DuBose SUBJECT Consider adoption of an Ordinance authorizing the Mayor to enter into an Interlocal Cooperation Agreemem with the City of Irving, City of Carrollton, City of Fort Worth, City of North Richland Hills, City of Plano, City of Frisco, and City of Euless for the sharing of imeractive virtual reference library services; and providing an effective date. BACKGROUND This request is to consider an Interlocal Agreement between the municipalities of the following cities: Irving, Carrollton, Fort Worth, North Richland Hills, Plano, Euless, and Frisco, forming the North Texas Virtual Reference Library Consortium, to offer a shared interactive virtual reference service over the Internet. This service would provide customers remotely assessing each Library's website access to a trained reference librarian or reference paraprofessional to assist them in using and navigating the Internet and subscription databases to find resources for school, business or personal use. This service is similar to the service staff'provides to customers visiting the Library in person. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Denton Library Board unanimously approved the Interlocal agreement to provide shared interactive reference service over the Internet at their November 4, 2004 meeting. FISCAL INFORMATION The cost to participate in this shared service is $6,371 for the Denton Public Library. As new municipalities cominue to join the consortium, the City of Demon costs will be lowered. EXHIBITS Ordinance Interlocal Agreement Respectfully submitted: Eva Poole Director of Libraries ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO ENTER INTO AN INTERLOCAL COOPERATION AGREEMENT WITH THE CITY OF IRVING, CITY OF CARROLLTON, CITY OF FORT WORTH, CITY OF NORTH RICHLAND HILLS, CITY OF PLANO, CITY OF FRISCO, AND CITY OF EULESS FOR THE SHARING OF INTERACTIVE VIRTUAL REFERENCE LIBRARY SERVICES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton and the cities of Irving, Carrollton, Fort Worth, North Richland Hills, Plano, Frisco, and Euless are political subdivisions of the State of Texas that are authorized to enter into interlocal contracts under TEX. GOV'T CODE, ch. 791; and WHEREAS, the City of Denton wishes to join a consortium of these cities to share in the use of interactive virtual reference library services; and WHEREAS, the cost of such services shall be taken from current revenues available to the paying parties and fairly compensates for the services rendered, and WHEREAS, the City Council deems it in the public interest to enter into this interlocal contract with the cities of Irving, Carrollton, Forth Worth, North Richland Hills, Plano, Frisco, and Euless to provide sharing of interactive virtual reference library services for the cities; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and a copy of this ordinance shall be attached to the contract. SECTION 2. That the Mayor, or in her absence, the Mayor Pro Tem, is authorized to execute an Interlocal Cooperation Agreement for Interactive Virtual Reference Library Services with the City of Irving, City of Carrollton, City of Fort Worth, City of North Richland Hills, City of Plano, City of Frisco, and City of Euless substantially in the form of the contract which is attached hereto and made a part of this ordinance for all purposes. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR S:\Our Documents\Ordinances\04\Consortium Library Agreement.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Ordinances\04\Consortium Library Agreement.doc Interlocal Agreement North Texas Virtual Reference Library CONSORTIUM This lnterlocal Agreement ("Agreement") is made and entered into by and between the libraries of the municipalities of Irving, Texas in Dallas County; Carrollton, Texas in Dallas and Denton Counties; Denton in Denton County; Fort Worth in Tarrant County; North Richland Hills, Texas in Tarram County; Plane, Texas in Collin and Denton Counties; Frisco, Texas in Collin County; and Euless, Texas in 'l"arrant County (hereinafter referred to as MUNICIPALITY individually or MUNICIPALITIES when referring to all eight cities) tbr the mutual interest in providing expert library reference assistance to citizens in their municipalities. WHEREAS, each MUNICIPALITY is a duly organized political subdivision of thc State of Texas engaged in the administration of municipal government and related services lbr the benefit of the citizens; and WHEREAS, Chapter 791 of the Texas Government Code authorizes mt,nicipalities to contract with each other to the greatest extent possible to perform government functions and services; and WHEREAS, Section 217.102 of the Local Government Code permits a municipality to participate in cooperative pt, rehasing programs with other municipalities; and WHEREAS, the MUNICIPAI.ITtES are engaged in the provision of library service for the benefit of the citizens of these cities; and WIIEREAS, the MUNICIPALITIES hereby join in forming the North Texas Virt. ual Reference Library CONSORTIUM (hereinafter refcrrcd to as the CONSOR'I][JM); and WHEREAS, the CONSORTIUM has agreed to provide shared interactivc virtual reference service over the Internet; and WHEREAS, the CONSORTIUM and each MUNICIPALITY agree to comply with all applicable requirements of all other Fcderal laws, executive orders~ regulations, and policies governing this program. NOW, THEREFORE, this Agreement is made and cntered into by thc MUNICIPALITIES as permitted by law. 1. The term of this agreement shall begin upon execution ot' the agreement by the MUNICIPALITIES and shall end on September 30, 2005. Additional annual renewals may be approved in accordance with paragraph IV and V and upon receipt of additional funding. Il. For the purposes and consideration herein stated and contemplated, the CONSORTIUM shall provide interactive virtual reference service over the internet without regard to race, religion, color, age, disability and/or national origin. The CONSORTIUM shall develop and maintain through the libraries o.ne t)r tilore of' thc Following programs of service: Interactive virtual reference service over the Interact. Remote access to each library's wcbsite. ages. Trained reference librarians or reference paraprofessionals to assist patrons of all III. The CONSORTIUM shall designate the Director ot'Library Services, or his or her designee, of each MUNICIPALITY to act on behalf ol' thc MUNICIPALITY to insure the performance of ail duties and obligations o1' thc MUNICIPALITY as herein stated. Further each Director shall devote sufficient time and attention to the execution of said duties on behalf of MUNICIPA[,I'I'Y in full compliance with thc terms and conditions o1' this agreement, and shall provide management of soflwarc, hardware, equipment, supplies~ employees, agents, contractors, subcontractors~ and/or laborers, il' any, i~, the furtherance of thc purposes, terms and conditions of the agreement; and WHEREAS, the Director of Library Se~wices of each MUNICIPAI.ITY will tDrm the lr2xecutive Committee to which each member MUNICIPALITY will participate and have an equal vote. IV. '['he CONSORTIt.[M shall designate the City o1' Irving as fiscal agent tbr grant funding purposes. Administration of fimding, if applicable, will be provided by Irving. I)m'ing the last 30 to 60 days of the funding year, service will be evaluated by the Executive Committee as to its effect. Consideration may bc made to apply fbr additional funding fi'om stare, federal and/or private sources, which may bccomc available, but approval and consent to apply for such fimdJng will [~e required fi~om each MUNICIPALITY based on each MUNtCIt~AI.I'IY's fi~nding process. Each MUNICIPALITY will share in paying operating costs during the term of the Agrccmcnt in an amount not-to-exceed the amot.nt set forth in the attached Exhibit "A" for each MUNICIPALITY respectively. Other cities may be permitted to .join and share in operating costs after tull approval of the Executive Committee. V. Any party to this Agrcctnent may withdraw at any time, by giving sixty (60) days advance written notice to the other parties. Notice shall be sufficient if delivered by hand or via ccrtiticd mail to the representative members o1' thc Exccutive (;ommittee. [n the event ot'such withdrawal by the Cities of Carrollton, Denton, Euless, [';off. Worth, Frisco, Irving, North Richland Hills, or Piano, the other members ot' thc Executive Committee may agree to continue service and act as thc Executive Committee. If any city chooscs to withdraw, thc remaining MtJNICIPAL1TIES may agree to terminate thc C()NS()RTItJM Agreemcnt with no fiscal penalties. VI. lhis agreement represents the entire and integrated agreement between thc CONSORTIUM cities and st. pcrscdcs all prior negotiations, representations and/or agreements, either written or oral. This agreement may be amended only by written instrumcnt signcd by the governing bodies of each MtJNICIPALI"['Y in thc CONSORTIUM. VII. The validity o~' this agrccmcnt and any o1' its lcrms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of'['exas. VIII. In thc event that any portkm of this agreement shall bc tbund to be contrary l.o law, it is thc intent of the parties hereto that the remaining portior~s shall remain valid and in full force and eft'eot to thc extent possible. IX. Each patty paying for the performance ot'governmental functions or services must make thcsc payments from current revenues available to thc paying party. X. The MUNICIPALITIES agree that each MUNICIPALITY will be independently responsible for any liabili~' or damages that MUNICIPALI'TY may suller as a resull of claims, demands, costs or judgments, including reasonable attorney fees, against it, including workers compensalion claims, arising ont of thc perfi~rma,lce of this agreement, or arising from any accident, in.jury or damage, whalsoever, to any person or persons, or to the property of any person(s) or corporation(s) ~ccurring during the performance of the agreement and caused by the sole negligence of that MI_INICIPALITY, its agents, officers and/or employees. The M[INICIPALITIES fnrther agree Ihat any liabilily or damages as stated above occurring during the performance of this agreement caused by Ihe joint or comtaarative negligence of them, their employees, agents and officers shall bc determined in accordance with the comparative responsibility.' laws of the State of Texas. XI. "l'he undersigned ol'licers and/or agents of' thc parties hereto are thc properly authorized ot'ficials and have the necessary authority to c×ccule this agreement on bchal'f ot' thc parties hereto and each party hereby certifies to the other that any necessary ordinances or resolulions exl.ending said authority have been duly passed and are now in full force and effect. F. xecuted in duplicate origimds by the authorized representatives. MUNICiPAI.ITY: City .O.f Denton Name: Title: Resolution # Dated A'TTESTED: (.?ity Secretary APPROVED AS 'F() [,'ORM: Ciity Att~'irnc.y A PPROV ED AS TO (~;gNTE. N'1'': EXItlBIT Billing Exhibit (2004-2005) Please invoice acc. ord.i Library C't~rrollton }'ublic. Library' LuciIe [')adc, Director 1700 Keller Springs Road Carroll~on. 'I'X 75006 97'2-466-_x~62 Ntmh Richland ~[ills Pul, lie l, brary Steve Brown, I.)~rcc. lor 6720 NE Loop 820 Nm'tl'~ Richland }lills, 'I-X 76180 817-427-6813 Piano Pubilc Library Joyce Baumbach, Director 2501 Coif Road t'lano, TX 75075-3892 972 -964-4208 h'ving Public Library Patty l.andcrs, Director P.O. Box 152288 Irving, 'I"X 750 l 5-2288 9,..'7~ 1-~6~8 Frisco ¢ublic Library Ron }.tcc~cn, Director 8750 McKimmy Road Frisco, "}'X 7503,1 972-335-5510 [:ulcss Public Library .It>Ann W. Rogers, Director 201 N. Ector EuJess, TX 760) 817-685- 1482 rO~CT'N2")"C .eul~ss tx uS Fort Worlh Ih~blic l,ibrary Gleniccc A. Robinson, DJrcc or 500 W. 3''d Street Fo~t Womb, TX 76102-7305 817-871-7706 Denton PtLblic Library ln¥oice AOlOttrfl $5,948 $5.05 7 $8,182 $7,379 S5,140 $4,858 $15,085 $6,371 Eva Poole, Directo'r 3020 N. Locust Street Denton, 'IX 76201 940-349-8750 ~y',a,pook:~cit¥o fdcnton.com Totg! . $58,000. AGENDA INFORMATION SHEET AGENDA DATE: November 16, 2004 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistant City Manager SUBJECT Consider the adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton, Texas and The Weyer Living Trust; providing an effective date. BACKGROUND Douglas C. Weyer, wishes to lease a parcel of land totaling approximately 60 feet by 283 feet, 16,980 square feet, or 0.3898 acres at the Denton Airport. The terms of the lease will obligate Douglas C. Weyer to construct a 12 unit T-Hangar office facility not less than 13,500 square feet with taxiway access and appropriate culverts or drainage as required by City ordinances in the utility right of way south and north of the proposed hangar as well as other improvements as determined necessary by City ordinances within 720 days. This facility will be constructed for the purpose of conducting commercial aviation storage. OPTIONS I. Approve the lease as proposed. II. Provide staff direction with additional lease options. RECOMMENDATION The Airport Advisory Board unanimously recommends approval of the proposed lease. Staff recommends approval of the proposed lease. ESTIMATED SCHEDULE OF PROJECT The lease would become effective December 1, 2004 and continue through the last day of November 2034 (30 years). The lease also provides for two successive option terms often years each. PRIOR ACTION/REVIEW The City Attorney's Office has reviewed the proposed lease. FISCAL INFORMATION The lease rate for the identified site is $0.12 per square foot per year. The lease agreement calls for an eight-year $. 11 per square foot discount to provide for a portion of the cost for the construction of a public taxiway. The initial rate will require the lessee to pay $169.80 for the first 8 years of the lease. The lease agreement will incorporate rate adjustments based on the Consumer Price Index every other year for the term of the lease as per FAA requirement. EXHIBITS Ordinance Lease Agreement Respectfully submitted: Mark Nelson Director of Airport and Transit Operations S:\Our Documents\Ordinances\04\Weyer Living Trust Ordinance.doc ORDINANCE NO. AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE WEYER LIVING TRUST; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an airport lease agreement for commercial operator between the City of Denton and The Weyer Living Trust, in substantially the form of the Airport Lease Agreement which is attached to and made a part of this ordinance for all purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AIRPORT LEASE AGREEMENT COMMERCIAL OPERATOR This Lease Agreement is made and executed to be effective this First day of December, 2004 (the "Effective Date") at Denton, Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", and The Weyer Living Trust, dated January I2, 1995 hereinafter referred to as "Lessee". WITNESSETH: WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport (the "Airport") in the City of Denton, County of Denton, State of Texas; and WHEREAS, Lessee desires to lease certain premises at the Airport and construct and maintain an aircraft hangar and related aviation facilities thereon; NOW, THEREFORE, for and in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows: I. CONDITIONS OF I.FJASR AGREF. MF, NT NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS SECTION SHALL BE BINDING. A. Pl~INC. rPI,F.S OF OPERATIONS. The right to conduct aeronautical and related activities for furnishing services to the public is granted to Lessee subject to Lessee agreeing: 1. To furnish said services on a fair, equal and not unjustly discriminatory basis to all users thereof; and To charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, that Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. NON-DTSCI/IMINATTON: Lessee, for itself, its personal representatives, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: No person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; 2. In the construction of any improvements on, over, or under such land and the famishing of services thereon, no person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi- nation in Federally assisted programs of the Department of Transportation - Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. C. RIGHT OF INT)IVIDI IAI ,,q TO MAINTAIN AIRCRAFT, It is clearly understood by Lessee that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the Airport from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform, D. NON-EXCLUSIVF~RIGHT. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Title 49 U.S.C, Appendix § 1349. E. pl YBTJC ARF, AS. Lessor reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or views of Lessee, and without interference or hindrance. Lessor shall be obligated to maintain and keep in good repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Lessee in this regard. During time of war or national emergency, Lessor shall have the fight to lease the landing area or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the Airport which, in the opinion of Lessor, would limit the usefulness or safety of the Airport or constitute a hazard to aircraft or to aircraft navigation. 5. This Lease Agreement shall be subordinate to the provisions of any existing or future agreement between Lessor and the United States or agency thereof, AGR Weyer Lease 04,DOC - Page 2 relative to the operation or maintenance of the Airport. II. LF. ASFJD PREMTSES Lessor, for and in consideration of the covenants and agreements herein contained, to be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease from Lessor, for the lease term described in Article III, the following described land situated in Denton County, Texas: A. Land. A tract of Iand, being approximately 60 feet by 283 feet, I6,980 square feet, or 0.3898 acres, drawn and outlined on Attachment "A" (Lot 127), and legally described in Attachment "B," such attachments being incorporated herein by reference (the "Leased Premises"). Together with the right of ingress and egress to the Leased Premises; and the right in common with others so authorized of passage upon the Airport property generally, subject to reasonable regulations by the City of Denton and such rights shall extend to Lessee's employees, passengers, patrons and invitees. For purposes of this agreement, the term "Leased Premises" shall mean all property located within the metes and bounds described and identified within Attachment "B", including leasehold improvements con- stmcted by the Lessee, but not including certain easements or property owned and/or controlled by the Lessor. A Legal description of the leased premises is not currently attached as Attachment "B." Lessee shall deliver to Lessor no later than 30 days at~er the date of this Agreement a legal description of the leased premises accurately describing the leased premises that is acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this Agreement, in which case it will have no further force and effect. The approved legal description will be attached to this Agreement as Attachment "B". B. IMPROVF, MF. NT,q PROVIDF. D FlY I,ESSOR: NONE: There will be no improvements provided by Lessor, except as set forth in Article II.E. "Access to Utilities" below. For the purpose of this Lease Agreement, the term "Lessor improvements" shall mean those things on or adjacent to the Leased Premises belonging to, constructed by, or to be constructed by the Lessor, which enhance or increase, the value or quality of the Leased Premises. Unless otherwise noted herein, all Lessor improvements are and will remain the property of Lessor. All Lessor improvements must be described in detail above, or above referenced and attached to this Agreement in an exhibit approved by Lessor. C., IMPl~OVRMF. NIT~q PROVIDED BY T.R~qSEF.. On the Leased Premises, Lessee shall construct a I2 urdt T-Hangar office facility not less than 13,500 square feet with taxiway access and appropriate culverts or drainage as required by City ordinances in the utility right of way south and north of the proposed facility as well as other improvements as determined necessary by City ordinances (the "Lessee's Improvements"). The Lessee's AGRWeyerLease04.DOC - Page 3 Improvements shall be commenced no later than 270 days and completed no later than 720 days after the Effective Date of this Lease Agreement as evidenced by the issuance of a certificate of occupancy (the "Construction Period"). Commencement of construction shall be when a building permit is issued for Lessee's Improvements and actual construction work has been done. Lessee shall also construct an access taxiway, south of the proposed T-hangar facilities, connecting the development to Taxiway J as shown on Attachment "A" (the "Access Taxiway"). The Access Taxiway shall be a minimum of twenty-five feet (25) wide, constructed of concrete and meet a weight beating capacity of at least 15,000. Lessee shall also provide at a minimum twenty foot wide concrete stub taxiway connecting each hangar unit on the south side of the T-hangar facilities to the Access Taxiway and connecting each hangar unit on the north side of the T-hangar facilities to the existing taxiway as shown on Attachment "A" (the "Stub Taxiways"). The Access Taxiway and the Stub Taxiways are collectively called the "Access Improvements". The Access Improvements shall be completed by Lessee within the Construction Period. When hangar facilities are developed adjacent to the south line of the Access Taxiway Lessor will give Lessee written notice of such development. Within six months of such notification Lessee shall install concrete pavement within the infilt areas between the Stub Taxiways and to the ends of the T-hangar facilities so that the entire area between the south side of the T-hangar facilities and the Access Taxiway is concrete pavement. Notwithstanding anything contained in this Lease Agreement to the contrary, a failure to complete the Lessee's Improvements and Access Improvements within the Construction Period may, at the sole option and discretion of the Lessor, result in the immediate termination and cancellation of this Lease Agreement upon 30 days written notice of cancellation to Lessee. In such case Lessee's rights under the Lease Agreement will immediately cease and be forfeited, and all of Lessee's Improvements shall immediately become the property of Lessor at no cost, expense or other compensation paid by Lessor to Lessee; and Lessee shall immediately vacate the Leased Premises. D. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the Leased Premises, easements for public access on roads and taxiways. E. ACCESS TO 1 ITII,ITIES. Lessor represents that there are water and 3-phase electricity lines within close proximity to the Leased Premises available to "tap-in" by Lessee, and that the same are sufficient for usual and customary service on the Leased Premises. F. EXISTING WATER I,INF,. Lessor acknowledges that it is aware of an existing water line that will be approximately six (6) feet from the southwest comer of the proposed T-hangar facility. Lessee wilt hold harmless Lessor, its agents, officers and employees from and against any damages to the T-hangar facility resulting from this water line including without limitation any damages that may be caused to the foundation of the T-hangar facility should the water line break causing water to flow under or near the foundation. AGR Weyer Lease 04.DOC - Page 4 ITl. TERM The term of this Lease Agreement shall be for a period of thirty (30) years, com- mencing on the 1st day of December, 2004 and continuing through the last day of November of 2034, unless earlier terminated under the provisions of the Lease Agreement (the "Lease Term"). Any attempt by Lessee to renegotiate this Lease Agreement shall be in writing addressed to the City Manager or his designee at least one hundred eighty (180) days before the expiration of the Lease Term, and at least 180 days before the expiration of any additional renegotiated period. Lessee has the option to renew for two (2) additional ten (10) yea' terms. The rental and temps to be negotiated shall be reasonable and consistent with the then value, rentals and terms of similar property on the Airport. IV. PA~:rMF, NTg: RENTAI,,q AND FEES Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement, the following payments, rentals and fees: A. I,AND RENTAL Commencing on the First day of December, 2004 through 30th day of November, 2012 land rental shall be due and payable from Lessee to Lessor in the annual rental sum equal to $0.12 per square foot of the land area within the Leased Premises (the "Original Rent") payable in twelve equal monthly installments on or before the 1st day of each and every month during the term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in whole on or before the 1 st day of November, at the beginning of the Lessor's fiscal year, each and every year of this Lease Agreement. From the First day of December, 2012 through the Last day of November, 2034 the annual rent will be adjusted in accordance with Section IV.C. Nothwithstanding the foregoing in order to compensate Lessee for the construction of the Access Taxiway, so long as Lessee complies with the construction requirements for Lessee's Improvements and the Access Improvements contained in Section II.C, and is not otherwise in default of any term or condition of this Lease Agreement, the annual rent shall be reduced to a sum equal to $0.01 per square foot of the land area contained in the Leased Premises for each of the first eight years of the Lease Agreement (the "Reduced Rent"). Until such time that the Lessee's Improvements and the Access Improvements are completed in accordance with Section B.C., Lessee shall pay the Original Rent. After Lessee's Improvements and Access Improvements are completed Lessee shall pay the Reduced Rent through the end of the eighth year of the Lease Agreement and will be entitled to a refund or credit for the amount paid in excess of the Reduced Rent for the period of this Agreement up to and through the date of completion of the Lessee's Improvments and Access Improvements. At the beginning of the 9th year of this Lease Agreement the annual rental shall be reinstated as the Original Rent as adjusted in accordance with Section IV.C. Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease AOR Weyer Lease 04.DOC - page 5 rate per square foot, as adjusted by the CPI-U referenced in Section IV.C, times the number of square feet comprising all easements established in accordance with Article II (D). B. I,F,~q~qoR IMPROVRMF, NTSRF, NTAI,S. NONE: improvements on the Leased Premises. There are no Lessor C. PAYMF, NT; PF, NAI,T¥: AD.II JSTMF, NT~S. All payments due Lessor from Lessee shall be made to Lessor at the offices of the Finance Department of the City of Denton, Customer Service Division, 601 West Hickory, Denton, Texas, unless otherwise designated in writing by the Lessor. If payments are not received on or before the 15th day of the month, a five percent (5%) penalty will be due as of the 16th. If payments are not received by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid rental/fee amount will be due. A one percent (1%) charge will be added on the first of each subsequent month until the unpaid rental/fee payment is made. The Original Rent for the Leased Premises shall be readjusted at the end of each one year period during the Lease Term on the basis of the proportion that the then current Un/ted States Consumer Price Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics bears to the previous available odd month index (September 2004), which was 179.7 (1982- 84 = 100), Each rental adjustment, if any, shall occur on the 1st day of December, beginning 2006, and every other year thereafter on such date. The adjustments in the yearly rent shall be determined by multiplying the Original Rent by a fraction, the numerator of which is the index number for the last month prior to the adjustment, and the denominator of which is the index number applicable at the execution of this Lease Agreement. If the product of this multiplication is greater than the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of the next rental adjustment as called for in this section. If the product of this multiplication is less than the Original Rent there shall be no adjustment in the annual rent at that time, and Lessee shall pay the previous year's annual rent until the time of the next rental adjustment as called for in this section. In no event shall any rental adjustment called for in this section result in an annual rent less than the previous year's annual rent. The adjustment shall be limited so that the annual rental payment determined for any given two-year period shall not exceed the annual rental payment calculated for the previous CPI adjustment by more than twenty percent (20%) percent. If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort Worth geographical region, as compiled by the U.S. Department of Labor, Bureau of Labor Statistics, is discontinued during the Lease Term, the remairfing rental adjustments called for in this section shall be made using the formula set forth above, but by substituting the index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For All Items For All Urban Consumers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas- Fort Worth geographical region and the U.S. City Average are discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the Un/ted States Department of Labor that are most nearly comparable to the CPI~U applicable to the Dallas-Fort Worth geographical AOR Weyer Lease 04.DOC - Page 6 region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics concerning the purchasing power of the consumer dollar during the Lease Term, the remaining rental adjustments called for in this section shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor. V_ RTGI-ITS ANI-) OlqI,IGATICINR OF I,ESSEE A. IISE OF I,EASED PREMISES, Lessee is granted the non-exclusive privilege to engage in or provide the following: 1. Hangar l,ea,qe,q and Rental_ Lessee is granted the non-exclusive right to rent hangars and hangar space and related facilities on the leased premises. 2. Office Space l,ea,qing. Lessee is granted the non-exclusive right to rent office space. Aircraft and Storage. Lessee is granted the non-exclusive right to provide storage of both Lessee's and sublessee's aircraft and aviation related equipment and supplies upon or within the leased premises. Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct any services not specifically listed in this Lease Agreement. The use of the Leased Premises by Lessee, its tenants, employees, invitees or guests shall be limited to only those private, commercial, retail or industrial activities having to do with or related to airports and avia- tion. No person, business or corporation may operate a commercial, retail or industrial business upon the Leased Premises or upon the Airport without a lease or license from Lessor authorizing such commercial, retail or industrial activity. The Lessor shall not unreasonably withhold authorization to conduct aeronautical or related services. B, STANDARDS. Lessee shall meet or exceed the following standards: Addre,q,q_ Lessee shall file with the Airport Manager and keep current its mailing addresses, telephone numbers and contacts where it can be reached in an emergency. 2. I,ist. Lessee shall file with the Airport Manager and keep current a list of its tenants and sublessees. 3. Conduct, Lessee shall contractually require its employees and sublessees (and sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee shall promptly enforce its contractual rights in the event of a default of such covenants. 4. 1 ltilities; Taxes and Fees. Lessee shall meet all expenses and payments in connection with the use of the Leased Premises and the fights and privileges AGR Weyer Lease 04.DOC - Page 7 herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed. 5. 12m_s. Lessee shall comply with all current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, including rules, regulations and ordinances promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place all necessary and/or required licenses or permits. 6. Maintenance of Prapert7.. Lessee shall be responsible for the maintenance, repair and upkeep of all property, buildings, structures and improvements, including the mowing or elimination of grass and other vegetation on the Leased Premises, and shall keep the Leased Premises neat, clean and in respectable condition, free fi'om any objectional matter or thing, including trash or debris. Lessee agrees not to utilize or permit others to utilize areas on the Leased Premises which are located on the outside of any hangar or building for the storage of wrecked or permanently disabled aircraft, aircraft parts, automobiles, vehicles of any type, or any other equipment or items which would distract from the appearance of the leased premises. Lessee agrees that at no time shall the Leased Premises be used for a flea market type sales operation. Painting of Buildings. During the Lease Term of this Lease Agreement and during each extension, Lessor shall have the right to require, not more than once every five years, that the metal exterior of hangar(s) or building(s) located on the Leased Premises be repainted. The Lessor may require Lessee to repaint said exteriors according to Lessor's specifications (to specify color of paint, quality of workmanship and the year and month in which the hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete the painting in accordance with such specifications within one (1) year of receipt of notice from Lessor. Lessee agrees to pay all costs and expense involved in the hangar or building painting process. Failure of Lessee to complete the painting required by Lessor, within the one (I) year period shall constitute Lessee's default under this Lease Agreement. 8. 11nauthorized use of Lea~qed Premises. Lessee may not use any of the Leased Premises for any use not authorized herein unless Lessor gives Lessee prior written approval of such additional use. Without limiting the foregoing the Leased Premises shall not be used for the operation of a motel, hotel, restaurant, private club or bar, apartment house, storage of recreational vehicles, automobiles, or marine vehicles, or for industrial, conzmercial, retail, or other purposes, except as authorized herein. Dwellings. It is expressly understood and agreed that no dwelling or domicile may be built, moved to or established on or within the Leased Premises nor may lessee, its tenants, employees, invitees, or guests be permitted to reside or AORWeyer Lease04.DOC - Page 8 remain as a resident on or within the Leased Premises or other Airport premises. 10. Quit po.qae~qsicm. Lessee shall quit possession of the Leased Premises at the end of the Lease Term or any renewal or extension thereof, or upon cancellation or termination of the Lease Agreement, and deliver up the Lease Premises to Lessor in as good condition as existed when possession was taken by Lessee, reasonable wear and tear excepted. 11. Indemnity.. Lessee must indemnify, hold harmless and defend the Lessor, its officers, agents and employees, from and against liability for any and all claims, liens, suits, demands and/or actions for damages, injuries to persons (including death), property damage, (including loss of use), and expenses, including court costs, attorneys' fees and other reasonable costs, occasioned by or incidental to the Lessee's occupancy or use of the Leased Premises or the Airport and/or activities conducted in connection with or incidental to this Lease Agreement, including all such causes of action based on common, constitutional or statutory taw, or based in whole or in part upon the negligent or intentional acts or omissions of Lessee, its officers, agents employees, invitees or other persons. Lessee must at all times exercise reasonable precautions on behalf of, and be solely responsible for, the safety of its officers, employees, agents, customers, visitors, invitees, licensees and other persons, as well as their property, while in, on, or involved in any way with the use of the Leased Premises. The Lessor is not liable or responsible for the negligence or intentional acts or omissions of the Lessee, its officers, agents, employees, agents, customers, visitors and other persons. The Lessor shall assume no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects, whether real or alleged, which may now exist or which may hereafter arise upon the Leased Premises, responsibility for all such defects being expressly assumed by the Lessee. The Lessee agrees that this indemnity provision applies to all claims, suits, demands, and actions arising from all premise defects or conditions. THE I,E~q~qoR AND TI-IE LESSEE ,EXPRESSI,Y INTEND THIS INDEMNITYPROVISION TO REQIIIRE I,ESSEF, 7'0 INDEMNIFY AND PROTECT THE LESSOR FROM THE CONSEQIIENCES OF THE LESSOR'S OWN NEGLIGENCE WHILE 1.ESSOR IS PARTICIPATING IN THIS T.EASE AGREEMENT WHERE THATNEGIJGENCE IS A CONCIJRRING CAIJSE OF THE INJIIRY; DEATH; OR DAMAGE. NOTWITHSTANDING THE IF. EMS OF THE PRECEDING SENTENCES, THIS INDEMNITY PROVISION DOES NOT APPT.Y TO ANY CLAIM. I JOSS: DAMAGE; CAI~SE OF ACTION, SI~IT AND LIABILITY WHERE THE FNI.IIJRY: DEATH; OR DAMAGE RESIII.TS EMPI,OYEES; CONTRACTORS: OR AGENTS, [INMIXED WITH THF, FAIILT OF ANY OTHER PERSON OR ENTITY. AGR WPyer Lease 04.DOC - Page 9 12. ~. Lessee agrees to properly store, collect and dispose of all chemicals and chemical residues; to properly store, confine, collect and dispose of all paint, including paint spray in the atmosphere, and paint products; and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints. Further, the Lessee shall be solely responsible for all discharges, whether accidental or intentional, of any chemical and for the costs associated with the cleanup, remediation and disposal of said chemicals. 13. HaT. ardcm.~ Acfivitie.q. Should Lessee violate any law, rule, restriction or regulation of the City of Denton or the Federal Aviation Administration, or any other regulatory authority, or should the Lessee engage in or permit other persons or agents to engage in activities which could produce hazards or obstruction to air navigation, obstructions to visibility or interference with any aircraft navigational aid station or device, whether airborne or on the ground, then Lessor shall state such violation in writing and deliver written notice to Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the Leased Premises who are causing said violation(s), and upon delivery of such written notice, Lessor shall have the right to demand that the person(s) responsible for the violation(s) cease and desist from all such activity creating the violation(s). In such event, Lessor shall have the fight to demand that corrective action, as required, be commenced immediately to restore the Leased Premises into confom~ance with the particular law, rule or aeronautical regulation being violated. Should Lessee, Lessee's agent, or the person(s) responsible for the violation(s) fail to cease and desist from said violation(s) and to immediately commence correcting the violation(s), and to complete said corrections within twenty-four (24) hours following written notification, then Lessor shall have the right to enter onto the Leased Premises and correct the violation(s) at the sole cost and expense of Lessee, and Lessor shall not be responsible for any damages incurred to any improvements on the Leased Premises as a result of the corrective action process. In addition, such violation shall be considered a material default by Lessee authorizing Lessor, at its sole option and discretion, to immediately terminate and cancel this Lease Agreement. AGR Weye,' Lease 04.DOC - Page 10 C. SIGNS. No signs, posters, or other similar devices ("Signage") shall be placed on the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport property without the prior written approval of Lessor. Lessee, at its sole expense, shall be responsible for the creation, installation and maintenance of all such Signage. Lessee shall pay to Lessor any and all damages, injuries, or repairs resulting fi.om the installation, maintenance or repair of any such Signage. Any Signage placed on the Leased Premises shall be maintained at all times in a safe, neat, sightly and good physical condition. All Signage shall be removed from the Leased Premises by Lessee immediately upon receipt of instructions for removal of same from Lessor, including without limitation, upon expiration or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor may do so at the sole cost and expense of Lessee. D. ENTRY. Lessor and its designees shall have the right to enter the Leased Premises upon reasonable advance notice (written or oral) and at any reasonable times for the purposes of inspecting the Leased Premises, performing any work which Lessor elects to perform under this Lease Agreement, and exhibiting the Leased Premises for sale, lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any work, which under any other provision of this Lease Agreement Lessee is required to perform, and any performance by Lessor shall not constitute a waiver of Lessee's default. VI. COVENANTS FlY I.ESSOR Lessor hereby agrees as follows: A. PEACEFI ri. F,N.IOYMENT. Upon on payment of all rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the Leased Premises and all rights and privileges herein granted; B. COMPTJANCE. Lessor warrants and represents that in the establishment, construction and operation of the Airport, that Lessor has heretofore and at this time is complying with all existing rules, regulations, and criteria distributed by the Federal Aviation Administration, or any other governmental authority relating to and including, but not limited to, noise abatement, air rights and easements over adjoining and contiguous areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for any action of trespass or similar cause of action by virtue of any aerial operations of adjoining property in the course of normal take-off and landing procedures from the Airport; Lessor further warrants and represents that at all times during the Lease Term, or any renewal or extension of same, that it wilt continue to comply with the foregoing. VII. SPECTAT, CONDITTON~q It is expressly understood and agreed by and between Lessor and Lessee that this Lease Agreement is subject to the following special terms and conditions. AGRWeyer Lease04.DOC - Page 11 RIINWAYS AND TAXIWAYS~ Because of the present fifteen thousand (15,000) pound continuous use weight beating capacity of the runway and taxiways of the Airport, Lessee herein agrees to limit all aeronautical activity including landing, take-off and taxiing, to aircraft having an actual weight, including the weight of its fuel, of fifteen thousand (15,000) pounds or less, until such time that the nmway and designated taxiways on the Airport have been improved to handle aircraft of such excessive weights. It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that Lessee agrees to abide by any such changes or revisions as such studies may dictate. "Aeronautical activity" referred to in this clause shall include any activity of the Lessee or its agents or subcontractors, and its customers and invitees, but shall not include those activities over which it has no solicitory part or control, such as an unsolicited or unscheduled or emergency landing. A pattern of violating the provisions of this section on two or more occasions shall be sufficient to cause the immediate termination of this entire Lease Agreement and subject Lessee to liability for any damages to the Airport that might result. VIII. LEASEHOI,D IMPROVEMENTS A. REQ[ IIRF, MRNT.q: Before commencing the construction of any improvements on the Leased Premises including Lessee's Improvements (the "Lease Improvements"), Lessee shall submit: Documentation, specifications, or design work, to be approved by the Lessor, which shall establish that the improvements to be built or constructed upon the Leased Premises are in conformance with the overall size, shape, color, quality and design, in appearance and structure of the program established by Lessor on the Airport. 2. All plans and specifications showing the location upon the Leased Premises of the proposed construction and improvements; 3. The estimated cost of such construction. No construction may commence until Lessor has approved the plans and specifications and the location of the Lease Improvements, and the estimated costs of such construction. Approval by the Lessor shall not be unreasonably withheld. Documentary evidence of the actual cost of construction on public areas only (such as taxiways) shall be delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he shall have found to have been paid by Lessee, and the findings of the City Manager when endorsed by him upon said contract shall be conclusive upon all parties for all purposes of this Lease Agreement. No later than 30 days after completion of the Lease Improvements, Lessee shall submit to Lessor detailed as built plans of the Lease Improvements and documentary AORWeyerLease04.DOC - Page 12 evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements ("Cost to Construct Lease Improvements"). B. ADDITTONAT. CONSTRIICTIONT O1~ IMPROVRMF. NT,~: Lessee is hereby authorized to construct upon the Leased Premises, at its own cost and expense, buildings, hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this Lease Agreement, provided however, Lessee shall comply with all of the requirements of Section VIII.A., above. Such additional improvements shall be a part of the Lease Improvements. C. OWNFRSHIP OF IMPROVEMENTS: Except as otherwise provided in this Lease Agreement, the Lease Improvements constructed upon the Leased Premises by Lessee shall remain the property of Lessee during the Lease Term subject to the following conditions, terms and provisions: 1. ,Removal of Buildings. No building or permanent fixture may be removed from the Leased Premises. As.qumptian. The Lease Improvements shall automatically become the property of Lessor absolutely free, without any cost to Lessor, at the end of the Lease Term, or any extension thereof. Failure ta Camplete I~essee's Imnrovements. The Lease Improvements shall immediately become the property of Lessor at no cost, expense, or compensation to Lessee should Lessee fail to complete the Lessee's Improvements within the Construction Period as provided in Section II.C of this Lease Agreement. Cancellation or Termination. Should this Lease Agreement be cancelled or terminated before the end of the Lease Term, or extension thereof, Lessor shall have the right to purchase all of the Lease Improvements. In the event of a cancellation or termination, other then due to a default by Lessee that has not been cured as provided below, the purchase price shall be equal to the most recent value of the Lease Improvements as determined by the Denton County Central Appraisal District ("Value of the Lease Improvements") reduced by 1/30 for each year of the Lease Term that has expired as of the date of termination (the "Purchase Price"). Should the Denton County Central Appraisal District not detemfine a separate value for the Lease Improvements then the Purchase Price will be determined taking the Cost to Construct the Lease Improvements reduced by 1/30 for each year the Lease Term has expired as of the date of termination. If the termination or cancellation is due to a default by Lessee that has not been cured within 30 days after written notice of default to Lessee, then the Purchase Price as determined above shall be reduced by 50%. AGR Wcyer Lease 04.DOC - Page 13 IX. SI, IBROGATION OF MORTGAGER Any person, corporation or institution that lends money to Lessee for construction of any hangar, structure, building or improvement and retains a security interest in said hangar, structure, building or improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon the Leased Premises and operate or manage said hangar, structure, building or improvement according to the terms of this Lease Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid in full, whichever comes first, but in no event longer than the Lease Term. It is expressly understood and agreed that the right of the mortgagee referred to herein is limited and restricted to those improvements constructed with funds borrowed from mortgagee, those improvements purchased with the borrowed funds, and those improvements pledged to secure the refinancing of the improvements. X. RIGHT OF EASF, MRNT Lessor shall have the right to establish easements, at no cost to Lessee, upon the Leased Premises for the purpose of providing underground utility services to, from or across the Airport property or for the construction of public facilities on the Airport. However, any such easements shall not interfere with Lessee's use of the Leased Premises and Lessor shall restore the property to the original condition as is reasonable practicable upon the installation of any utility serv/ces on, in, over or under any such easement at the conclusion of such construction. Construction in or at the easement shall be completed within a reasonable time. XI. ASSIGNMENT OF I.EASE Lessee expressly covenants that it wilI not assign this Lease Agreement, convey more than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise, transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose, except for rental of hangar space or tie-down space for storage of aircraft only, without the written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval of such sale, sublease, transfer, license, or assignment of the facilities for Airport related purposes; provided however, that no such assignment, sublease, transfer, license, sale or otherwise shall be approved if the rental, fees or payments, received or charged are in excess of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or otherwise. The provisions of this Lease Agreement shall remain binding upon the assignees, if any, of Lessee. XII. INS][ rR ANCR A. ]~F. QI FIRED lNgl lI~ AMC. R: Regardless o£ the activities contemplated under this Lease Agreement, Lessee shall maintain continuously in effect at all times during the term of this agreement, at Lessee's sole expense, the following minimum insurance coverages: A(3R Weyer Lease 04.DOC - Page 14 Comprehensive Conunercial (Public) General Liability covering the Lessee or its company, its employees, agents, tenants and independent contractors, and its operations on the airport. Coverage shall be in an amount not less than $t,000,000 per occurrence and provide coverage for premises/operations, products/completed operations and contractual liability. All risk property insurance on a replacement cost basis covering loss or damage to ali facilities used by the Lessee, either as a part of this agreement or erected by the Lessee subsequent to this agreement. Under no circumstances shall the Lessor be liable for any damages to fixtures, merchandise or other personal property of the Lessee or its tenants. 3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non- Owned Autos and Hired Cars: For operation in aircraft movement areas the limit of liability shall be $100,000 per occurrence. For other operations the limit of liability shall be consistent with the amount set by State Law. B. ADDITIONAl, COVERAGES: In addition to the above referenced coverages, the following insurance is required if the activity or exposure exists or is contemplated: Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public) General Liability shall include coverage or separate coverage shall be provided for Environmental Impairment Liability. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an amount of $100,000 per person (per passenger seat) shall be provided. Aircraft Rental or Flight Training - Aircraft Liability in the amount of $ t,000,000 per occurrence to include Hull Coverage and Liability, Passenger Liability in the amount of $100,000 per person (per passenger seat) and Student/Renter Liability covering all users in the amount of $500,000 per occurrence. Specialized Commercial Flying (including crop dusting, seeding, and spraying, banner towing and aerial advertising, aerial photography and surveying, fire fighting, power line or pipe line patrol) - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an amount of $100,000 per person (per passenger seat) shall be provided. AGR Weyer Lease 04.DOC Page 15 Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Hanger Keepers Liability in the amount of $500,000 per occurrence shall be provided. The requirement for Hangar Keepers Liability shall not apply to individual owner/operators whose primary use of the hangar space is the storage of their own aircraft. The requirement does not apply to such individuals notwithstanding the fact that they may, fi.om time to time, permit the storage of non-owned aircraft in the hangar space and charge a fee for the storage of such aircraft so long as such use is in the nature of a rent-sharing agreement rather than a commercial aircraft storage business. C. COVERAGE RF, QIIIRF, MI~NT~q: Ali insurance coverages shall comply with the following requirements: All liability policies shall name the City of Denton, and its officers and employees as an additional named insured and provide for a minimum of 30 days written notice to the City of any cancellation or material change to the policy. Alt insurance required by this Lease Agreement must be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas, All policies are subject to the examination and approval of the City's office of Risk Management for their adequacy as to content, form of protection and provid/ng company. Required insurance naming the City as an additional insured must be primary insurance and not contributing with any other insurance available to the City whether fi.om a third party liability policy or other. Said limits of insurance shall in no way limit the liability of the Lessee hereunder. The Lessor shall be provided with a copy of all such policies and renewal certificates. Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease Agreement. During the Lease Term, or any extension thereof, Lessor herein reserves the fight to, with 60 days notice, adjust or increase the liability insurance amounts required of the Lessee, and to require any additional rider, provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by Lessor; provided however, that any requirements shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal Airport in size and in scope of aviation activities, located in the southwestern region of the United States. AGR Weyer Lease 04 DOC - Page 16 XITI. CANCF. IJ,ATION lqY I,ERSOR In the event that Lessee shall file a voluntary petition in bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any Federal reorganization act, or Lessee shall be divested of its estate herein by other operation of law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or conditions herein contained, or on its part to be performed, the Lessor may give Lessee written notice to correct such condition or cure such default and, if any condition or default shall continue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may terminate this Lease Agreement by written notice to Lessee. In the event of default, Lessor has the right to purchase any or all of the Lease Improvements under the provisions of Section VIII.C.4. hereof. XIV. CANCEIJ.ATION FlY LESSEE Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of its obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of any one of the following events: (1) issuance by any court of competent juris- diction of a permanent injunction in any way preventing or restraining the use of the Airport or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or agreements contained herein and the failure of Lessor to remedy such breach for a period of ninety (90) days after receipt of a written notice of the existence of such breach; (3) the inability of Lessee to use the Lease Premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, rule or regulation of any appropriate governmental authority having jurisdiction over the operations of Lessor or due to war, earthquake or other casualty; or (4) the assumption or recapture by the United States Government, or any authorized agency thereof, of the maintenance and operation of said airport and facilities or any substantial part or parts thereof. Upon the happening of any of the four events listed in the preceding paragraph, such that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its terms, except, however, that the use of the Leased Premises shall not be limited to aviation purposes, their use being only limited by such laws and ordinances as may be applicable at that time. XV. MISCELLAN]~.OI Ig PROVISIONS A. ENTIRE AGREEMENT. This Lease Agreement constitutes the entire understanding between the parties and as of its Effective Date supersedes all prior or independent Agreements between the parties covering the subject matter hereof. Any change or modification hereof shall be in writing signed by both parties. AGR Weyer Lease 04.DOC - Page 17 B. I:IINDING EFFECT. All covenants, stipulations and agreements herein shall extend to, bind and inure to the benefit of the legal representatives, successors and assigns of the respective parties hereto. C. SEVER AFIII.ITY, If a provision hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Lease Agreement shall not be void; but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. D. NOTICE. Any notice given by one party to the other in connection with this Lease Agreement shall be in writing and shall be sent by certified mail, return receipt requested, with postage fees prepaid or via facsimile as follows: 1. If to Lessor, addressed to: City Manager City of Denton 215 E. McKinney Street Denton, Texas 76201 Fax No.940.349.8596 2. If to Lessee, addressed to: The Doucglas C. Weyer Living Trust, Dated January 12, 1995 Douglas C. Weyer, Trustee Post Office Box 1322 Lake Dallas, Texas 75065 Phone 940.497.6126 E. HEADINGS. The headings used in this Lease Agreement are intended for convenience of reference only and do not define or limit the scope or meaning of any provision of this Agreement. F. GOVERNING LAW AND VENI IF.. This Lease Agreement is to be construed in accordance with the laws of the State of Texas and is fully performable in Denton County, Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease Agreement shall be a court of competent jurisdiction in Denton County, Texas. G. NO WAIVF. R. No waiver by Lessor or Lessee of any default or breach of covenant or term of this Lease Agreement may be treated as a waiver of any subsequent default or breach of the same or any other covenant or term of this Lease Agreement. H. NO AGENCY. During all times that this Lease Agreement is in effect, the parties agree that Lessee is and shall not be deemed an agent or employee of the Lessor. IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the AOR Weyer Lease 04.DOC - Page 18 Effective date first above written. CITY OF DENTON, TEXAS, LESSOR BY: MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: THE WEYER LIVING TRUST, AGR Weyer Lease 04.DOC - Page 19 ACKNOWLEDGMENTS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ~ Michael A. Conduff, municipality. day of City Manager of the City of Denton, Texas, on ., 2004, by behalf of said NOTARY PUBLIC, STATE OF TEXAS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ~ day of K~t3~/CvMla*_~, 2004 by The Weyer Living Trust, dated January 12, I995 Douglas C. Weyer, Trustee on behalf of said trust. ~,~~ NOTARY PUBLIC, Srl'~TE OF TEXAS NOTARY PUBLIC ~ta~e of AGR Weyer Lease 04.DOC - Page 20 3^lBO 13AVBO ONII$)X) LOT 127 I~.. LOT 127 ~ AGENDA INFORMATION SHEET AGENDA DATE: November 16, 2004 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistant City Manager SUBJECT Consider the adoption of an ordinance approving a commercial operator airport lease agreement between the City of Denton and Jet Works Aviation Inc.; and providing an effective date. BACKGROUND Jet Works Aviation, Inc. recently created a management firm with Business Air Management, Jet Works Air Center. This merger is designed to better serve joint clientele. Jet Works Aviation currently provides major airframe and engine maintenance service for corporate aircraft as well as avionics repair and installation. Business Air Management currently provides interior refurbishment and completion, and will begin providing aircraft painting services in December 2004. The creation of Jet Works Air Center will improve management efficiencies in processing major and minor aircraft maintenance and upgrades. To better facilitate this merger, Jet Works Aviation is considering the relocation of their current operation to Denton Airport from Meacham Airport in Fort Worth. This relocation will result in 30 employees on the airfield and it is anticipated that total employment would reach 40 within twelve months. Jet Works Aviation wishes to lease a parcel of land totaling approximately 1.3636 acres, at the Denton Airport. The terms of the lease will obligate Jet Works Aviation to construct a hangar/office complex with a minimum of 26,000 square feet. The hangar complex shall be a minimum of 18,000 square feet and a minimum office/shop area of 8,000 square feet. This development will be located on the proposed expansion of the North Terminal Apron currently in design phase with TxDOT and scheduled for construction in Spring 2005. Jet Works will be required to construct an aircraft staging ramp 20 feet by 270 feet that will access the expanded public ramp south of the proposed facility. All improvements must be completed within 720 days. This facility will be constructed for the purpose of commercial aviation related operations. OPTIONS I. Approve the lease as proposed. II. Provide staff direction with additional lease options. RECOMMENDATION Airport Staff recommends approval of the lease as presented. The recommendation of this lease is based on the strong economic development opportunities and benefits that would be generated by the proposed lease and the enhanced aviation services that will be provided by lessee. Furthermore, this caliber of development is a key component to the implementation of the Council Outcome Statement for the Airport as provided by City Council ESTIMATED SCHEDULE OF PROJECT The lease would become effective December 1, 2004 and continue through the 30th day of November 2034 (30 years). The lease also provides for two successive option terms often years each. PRIOR ACTION/REVIEW Council considered this item during their November 2, 2004 Regular Meeting and remanded the lease agreement to the Airport Advisory Board for further review. The Airport Advisory Board reviewed the lease agreement during their November 10, 2004 Board Meeting and unanimously recommended that Council accept the lease agreement as presented. FISCAL INFORMATION The lease rate for the identified site is $0.05 per square foot per year for the first three years. The lease rate for the first three years will be approximately $2,970.00 per year. Beginning the fourth year of the lease, the current rate will be adjusted by $0.20 per square foot. The lease agreement provides for rate adjustments, Consumer Price Index adjustments, every other year for the term of the lease as per FAA requirement. EXHIBITS Ordinance Lease Agreement Respectfully submitted: Mark Nelson Director of'Airport and Transportation Operations S:\Our Docarnents\Ordinances\04~irport Lease-JetWorks,doc ORDINANCE NO. AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND JET WORKS AVIATION, INC. AT THE DENTON ML~ICIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an airport lease agreement for commercial operator between the City of Denton and Jet Works Aviation, Inc. at the Denton Municipal Airport, in substantially the form of the Airport Lease Agreement which is attached to and made a part of this ordinance for all purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Jet Work~ Lease-Final. DOC AIRPORT LEASE AGREEMENT COMMERCIAL OPERATOR This Lease Agreement is made and executed to be effective as of the First day of December, 2004 (the "Effective Date") at Denton, Texas, by and between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", and Jet Works Aviation, Inc., a Texas corporation, hereinafter referred to as "Lessee". WITNESSETH: WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport (the "Airport") in the City of Denton, County of Denton, State of Texas; and WHEREAS, Lessee desires to lease certain premises at the Airport and construct and maintain an aircraft hangar and related aviation facilities thereon; NOW, THEREFORE, for and in consideration of the promises and the mutual covenants contained in this Agreement, the parties agree as follows: I. CONDITIONS OF T,F~ASE AGRF, F, MF, N1T NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS SECTION SHALL BE BINDING. A. PR1NClPLE.q OF OPERATIONS. The right to conduct aeronautical and related activities for furnishing services to the public is granted to Lessee subject to Lessee agreeing: 1. To furnish said services on a fair, equal and not unjustly discriminatory basis to all users thereof; and To charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, that Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. B. NON-DISCRIMINATION: Lessee, for itself, its personal representatives, successors, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: 1. No person on the grounds of race, religion, color, sex, or national origin shall be excluded fi:om participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; 2. In the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, religion, color, sex, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; 3. Lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi- nation in Federally assisted programs of the Department of Transportation - Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. C. RIGHT OF .INDIVIDIIAL.q TO MAINTAIN AIRCRAFT. It is clearly understood by Lessee that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraf~ on the Airport from performing any services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform. D. NON-F,X~CIIJSIVF~ RIGHT. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive fight within the meaning of Title 49 U.S.C. Appendix §1349. E. PTIBT,IC, AREAS. Lessor reserves the right to further develop or improve the landing area of the Airport as it sees fit, regardless of the desires or views of Lessee, and without interference or hindrance. Lessor shall be obhgated to maintain and keep in good repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of Lessee in this regard. During time of war or national emergency, Lessor shall have the right to lease the landing area or any part thereof to the United States Government for military or naval use, and, if such lease is executed, the provisions of this instrument insofar as they are inconsistent with the provisions of the lease to the Government, shall be suspended. Lessor reserves the right to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, together with the right to prevent Lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the Airport which, in the opinion of Lessor, would limit the usefulness or safety of the Airport or constitute a hazard to aircraft or to aircraft navigation. The hangar/office/shop complex as currently proposed as provided in Section ll.D. does not violate this provision. 5. This Lease Agreement shall be subordinate to the provisions of any existing or AIRPORT LEASE AGREEMENT Jet Works - ?aqe 2 furore agreement between Lessor. and the United States or agency thereof, relative to the operation or maintenance of the Airport. II. I,EA~qF.D PRF. MISF, S Lessor, for and in consideration of the covenants and agreements herein contained, to be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease from Lessor, for the lease term described in Article 1II, the following described land situated in Denton County, Texas: A. l.and_ A tract of land, being approximately 200 feet by 275 feet by 240 feet by 270 feet or 1.3636 acres, drawn and outlined on Attachment "A", and legally described in Attachment "B" as Parcel 1, such attachments being incorporated herein by reference (the "Leased Premises"). Together with the right of ingress and egress to the Leased Premises; and the fight in common with others so authorized of passage upon the Airport property generally, subject to reasonable regulations by the City of Denton and such fights shall extend to Lessee's employees, passengers, patrons and invitees. For purposes of this agreement, the term "Leased Premises" shall mean all property located within the metes and bounds described and identified w/thin Attachment "B", including leasehold improvements constructed by the Lessee, but not including certain easements or property owned and/or controlled by the Lessor. A legal description of the leased premises is not currently attached as Attachment "B". Lessee shall deliver to Lessor no later then 30 days atler the date of this Agreement a legal description of the leased premises accurately describing the leased premises that is acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this Agreement, in which case it will have no further force and effect. The approved legal description will be attached to this Agreement as Attachment "B". B. Right of Fimt Refusal_ So long as Lessee is in compliance w/th all construction requirements pertaining to Lessee's Improvements as set forth in Section II.D. below and is not in default of any term or condition of this Lease Agreement,, Lessee shall have a right of first refusal (the "Right of First Refusal")to lease Parcel 2 which is more particularly described in Attachment "A"or any portion thereof to which Lessor receives a written offer to lease (the "Offer to Lease"). The Right of First Refusal shall be effective for a period of three (3) years after the Effective Date (the "Option Period"). Should Lessor receive an Offer to Lease from a third party during the Option Period that Lessor has an interest in consummating, Lessor shall give Lessee a written notice of such Offer to Lease along with a copy of said Offer to Lease (the "Notice"). If Lessee desires to exercise its Right of First Refusal it shall no later than 45 days after the receipt of the Notice tender to Lessor a signed written lease with identical terms and conditions as are contained in the Offer to Lease (the "Dead Line"). If Lessee fails to meet the Dead Line, the Right of First Refusal will be null and void and of no further force and effect. AIRPORT LEASE AGREEMENT Jet Works - Page 3 C.IMPROVFMENT,q PROVIDF. D BY T.F.~q~qOR: The only improvements provided by Lessor, except as set forth in Article TT.F. "Access to Utilities" below, shall be as follows: Lessor shall continue planning efforts with the Texas Department of Transportation, Aviation Division (TxDOT) to complete the planned expansion of the north terminal apron as depicted in green on Attachment A. The Lessor will complete the construction of this planned apron expansion prior to Lessee's completion of Lessee's Improvements, subject to the receipt of funding fi.om Texas Department of Transportation ("TxDof'). Should TxDot not provide the necessary funding in order to meet this deadline then Lessor will complete a portion of planned apron expansion that is at least 100 feet wide adjacent to Lessee's hangar facilities on Parcel 1, tapering to 50 feet wide to provide access to Taxiway Alpha. When Lessor receives the necessary funding fi.om TxDot, Lessor will complete the remainder of planned apron expansion. Lessor shall complete construction of water utility inffastmcmre for a looped extension for a minimum six-inch water line approximately 1,000 feet in length prior to the issuance of a certificate of occupancy for Lessee's Improvements. The term "Lessor improvements" shall mean those things on or adjacent to the Leased Premises belonging to, constructed by, or to be constructed by the Lessor. Unless otherwise noted herein, all Lessor improvements are and will remain the property of Lessor. All Lessor improvements must be described in detail above, or above referenced and attached to this Agreement in an exhibit approved by Lessor. D.. TMPROVF~MFNTS PR©VIDF, D BY LE.qgFJF,. On the Leased Premises, Lessee shall construct a hangar/office/shop complex with a minimum of 26,000 square feet. The hangar space shall be a minimum of 18,000 square feet and the office/shop space shall be a minimum of 8,000 square feet. Lessee shall construct an aircraft staging ramp 20 feet by 270 feet that will access the public ramp south of the proposed facility. Lessee shall also construct appropriate culverts or drainage as required by City ordinances in the utility right of way south and north of the proposed hangar as well as other improvements as determined necessary by City ordinances (All above described improvements to be constructed by Lessee are called the "Lessee's Improvements'). Construction of Lessee's Improvements shall be commenced no later than 270 days and completed no later than 720 days after the Effective Date (the "Construction Period"). Construction of Lessee's Improvements are considered commenced upon issuance of a building permit and construction of any portion of the hangar/office/shop complex. Construction of Lessee's Improvements are considered complete upon the issuance of a Certificate of Occupancy for the entire hangar/office/shop complex, and the aircraft staging ramp and drainage and utility improvements are completed. Notwithstanding anything contained in this Lease Agreement to the contrary, a failure to complete the Lessee's Improvements within the Construction Period may, at the sole option and discretion of the Lessor, result in the immediate termination and cancellation of this Lease Agreement upon 30 days written notice of cancellation to Lessee. In such case Lessee's rights under the Lease Agreement will immediately AIRPORT LEASE AGREEMENT Jet Works - Page 4 cease and be forfeited, and all of Lessee's Improvements shall immediately become the property of Lessor at no cost, expense or other compensation paid by Lessor to Lessee; and Lessee shall immediately vacate the Leased Premises. E. EAS.~.AIFalgI5. Lessor and Lessee by mutual agreement may establish, on the Leased Premises, easements for public access on roads and taxiways. F. ACCESS TO I ITI[,ITIF. S_ Lessor represents that there are water, sewer and 3- phase electricity lines within close proximity to the Leased Premises available to "tap-in" by Lessee, and that the same are sufficient for .usual and customary service on the Leased Premises. m. TF. RM The term of this Lease Agreement shall be for a period of thirty (30)' years, com- mencing on the 1st day of December, 2004 and continuing through the 30th day of November of 2034, unless earlier terminated under the provisions of the Lease Agreement (the "Lease Term"). Lessee has the option to renew for two (2) additional ten (10) year terms. In order to exercise the first option Lessee must provide written notice to Lessor of its intent to exercise the first 10 year option no later than 180 day before the expiration of the 30 year primary term. To exercise the second option such written notice must be provided no later than 180 days before the expiration of the first 10 year option term. The rental and terms to be negotiated for the option terms shall be reasonable and consistent with the then value, rentals and terms of similar property on the Airport. IV. pp, YMF. NT~q; RF. NTAI.,q AND gEES Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement, the following payments, rentals and fees: A. Imnd_rma~ shall be due and payable to Lessor in twelve (12) equal monthly installments in the sums set forth below, on or before the 1st day of each and every month during the term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in whole on or before the 1st day of October, at the beginning of the City's fiscal year, each and every year of this Lease Agreement. 1. 12-t -2004 Ibm 11-30-2007z Annual rent shall be a sum equal to $0.20 per square foot of the land area contained in the Leased Premises (the "Original Rent''). Monthly rental shall be 1/12th of the annual rent. Notwithstanding the foregoing, so long as Lessee complies with the construction requirements of Lessee's Improvements contained in Section 11 D. and is not otherwise in AIRPORT LEASE AGREEMENT Jct Works - Page 5 default of any term or condition of this Lease Agreement the annual rent shall be reduced to a sum equal to $0.05 per square foot of the land area contained.in the Leased Premises at the time of completion of the Leased Improvements (the "Reduced Rent"). Until such time that the Lessee's Improvements are completed in accordance with Section II.D. Lessee shall pay the Original Rent. After Lessee's Improvements are completed Lessee shall pay the reduced rent through 11-30-2007 and will be entitled to a refund or credit for the amount paid in excess of the Reduced Rent for the period of this Lease Agreement up to and through the date of completion of Lessee's Improvements. 12-1-2007 thru 11-30-20R4: Annual rent shall be a sum equal to $0.20 per square foot of land area contained in the Leased Premises as adjusted in accordance with Section IV.C. In this regard the rent beginnin~gthl2-1-2007 may be greater than.S0.20 per square feet. Monthly rental shall be 1/12 of the annual rent. Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease rate per square foot, as adjusted by the CPI-U referenced in Section IV.C., times the number of square feet comprising all easements established in accordance with Section II.E_ B. I.F.,qRoR 1MPROVFMENT.q RFNTALS. NONE: improvements on the Leased Premises. There are no Lessor C. PAYMFNT: PENAt,TY: ADII ISTMFNTS. Ali payments due Lessor from Lessee shall be made to Lessor at the offices of the Finance Department of the City of Denton, Customer Service Division, 60I West Hickory, Denton, Texas, unless otherwise designated in writing by the Lessor. If payments are not received on or before the 15th day of the month, a five percent (5%) penalty will be due as of the 16th. If payments are not received by the first of the subsequent month, aa additional penalty of one percent (1%) of the unpaid rental/fee amount will be due. A one percent (1%) charge will be added on the first of each subsequent month until the unpaid rental/fee payment is made. The Original Rent for the Leased Premises shall be readjusted at the end of each one year period during the Lease Term on the basis of the proportion that the then current United States Consumer Price Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics bears to the previous odd month 2004 index (September), which was 170.7 (1982-84 = 100). Each rental adjustment, if any, shall occur on the Ist day of October, beginning 2006, and every other year thereafter on such date. Regardless of the discounted rate/credit, we would still do a CPI adjustment on the current rate in 2006. The adjustments in the yearly rent shall be determined by multiplying the Original Rent by a fi.action, the numerator of which is the index number for the last month prior to the adjustment, and the denominator of which is the index number apphcable at the execution of this Lease Agreement. If the product of this multiplication is greater than AIRPORT LEASE AGREEMENT Jet Works - Page 6 the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of the next rental adjustment as called for in this section. If the product of this multiplication is less than the Original Rent there shall be no adjustment in the annual rent at that time, and Lessee shall pay the previous year's annual rent until the time of the next rental adjustment as called for in this section. In no event shall any rental adjustment called for in this section result in an annual rent less than the previous year's annual rent. The adjustment shall be limited so that the annual rental payment determined for any given two-year period shall not exceed the annual rental payment calculated for the previous CPI adjustment by more than twenty percent (20%) percent. If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort Worth geographical region, as compiled by the U.S. Department of Labor, Bureau of Labor Statistics, is discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the formula set forth above, but by substituting the index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For All Items For All Urban Consumers (CPI-U) for the index numbers for the CPI-U applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas- Fort Worth geographical region and the U.S. City Average are discontinued during the Lease Term, the remaining rental adjustments called for in this section shall be made using the statistics of the Bureau of Labor Statistics of the United States Department of Labor that are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to exist or ceases to publish statistics conceming the purchasing power of the consumer dollar during the Lease Term, the remaining rental adjustments called for in this section shall be made using the most nearly comparable statistics published by a recognized financial authority selected by Lessor. V. RIGHTS AND OBI .IGATI(3NS CIF 1 .F, gSF. F. A. [~glu. OF T,FASFD PRF. MISF, S. Lessee is granted the non-exclusive privilege to engage in owner/operator activities providing the following aviation services: 1. General Aircraft Maintenance: Lessee is granted the non-exclusive right to conduct airframe and power plant maintenance. ~: Lessee is granted the non-exclusive fight to provide for the sale, installation and maintenance of aircraft avionics and associated electrical equipment. 3. Hangar Space T.e,a.qing. Lessee is granted the non-exclusive right to rent hangar space. 4. (3ffice Snace T~n.qino_ space. Lessee is granted the non-exclusive fight to rent office 5. Aircraft Interior Shop_ Lessee is granted the non-exclusive right to rent space AIRPORT LEASE AGREEMENT Jet Works - Page 7 for the repair, restoration, or reinstallation of aircraft interior components. Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct any services not specifically listed in this Lease Agreement. The use of the Leased Premises by Lessee, its tenants, employees, invitees or guests shall be limited to only those private, commercial, retail or industrial activities having to do with or related to airports and avia- tion. Except as specifically authorized in this Lease Agreement, no person, business or corporation may operate a commercial, retail or industrial business upon the Leased Premises or upon the Airport without a lease or license fi:om Lessor authorizing such commercial, retail or industrial activity. The Lessor shall not unreasonably withhold authorization to conduct aeronautical or related services. B. ~qTANDARD~q. Lessee shall meet or exceed the following standards: 1. ),ddre.q~q. Lessee shall file with the Airport Manager and keep current its mailing addresses, telephone numbers and contacts where it can be reached in an emergency. 2. l,int. Lessee shall file with the Airport Manager and keep current a list of its tenants and sublessees. ~. Lessee shall contractually require its employees and sublessees (and sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee shall promptly enforce its contractual fights in the event of a default of such covenants. lltilitie.q: Taxes and Fees. Lessee shall meet all expenses and payments in connection with the use of the Leased Premises and the rights and privileges herein granted, including the timely payment of utilities, taxes, permit fees, license fees and assessments lawfully levied or assessed. ~ Lessee shall comply with alt current and future federal, state and local laws, rules and regulations which may apply to the conduct of business contemplated, including rules, regulations and ordinances promulgated by Lessor, and Lessee shall keep in effect and post in a prominent place all necessary and/or required licenses or permits. Maintenance of' Property.. Lessee shall be responsible for the maintenance, repair and upkeep of all property, buildings, structures and improvements, including the mowing or elimination of grass and other vegetation on the Leased Premises, and shall keep the Leased Premises neat, clean and in respectable condition, free from any objectional matter or thing, including trash or debris. Lessee agrees not to utilize or permit others to utilize areas on the Leased Premises which are located on the outside of any hangar or building for the storage of wrecked or permanently disabled aircratt, aircraft parts, automobiles, vehicles of any type, or any other equipment or items AIRPORT LEASE AGREEMENT Jet Works - Page 8 which would distract from the appearance of the leased premises. Lessee agrees that at no time shall the Leased Premises be used for a flea market type sales operation. painting of Fhfildings. During the Lease Term of this Lease Agreement and during each extension, Lessor shall have the fight to require, not more than once every five years, that the metal exterior of hangar(s) or building(s) located on the Leased Premises be repainted. The Lessor may require Lessee to repaint said exteriors according to Lessor's specifications (to specify color of paint, quality of workmanship and the year and month in which the hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete the painting in accordance with such specifications within one (1) year of receipt of notice from Lessor. Lessee agrees to pay all costs and expense involved in the hangar or building painting process. Failure of Lessee to complete the painting required by Lessor, within the one (1) year period shall constitute Lessee's default under this Lease Agreement. 8. lInan/hnrized use of [eased Premi.qes, Lessee may not use any of the Leased Premises for any use not authorized herein unless Lessor gives Lessee prior written approval of such additional use. Without limiting the foregoing the Leased Premises shall not be used for the operation of a motel, hotel, restaurant, private club or bar, apartment house, storage of recreational vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail, or other purposes, except as authorized herein. ~ It is expressly understood and agreed that no dwelling or domicile may be built, moved to or established on or within the Leased Premises nor may lessee, its tenants, employees, invitees, or guests be permitted to reside or remain as a resident on or within the Leased Premises or other Airport premises. Lessee may have a pilot lounge, including restroom and shower facilities for use by flight crew and passengers. 10. Ouit pa.qse~.qion. Lessee shall quit possession of the Leased Premises at the end of the Lease Term or any renewal or extension thereof, or upon cancellation or termination of the Lease Agreement, and deliver up the Lease Premises to Lessor in as good condition as existed When possession was taken by Lessee, reasonable wear and tear excepted. 11. lnclemni~. Lessee must indemnify, hold harmless and defend the Lessor, its officers, agents and employees, from and against liability for any and all claims, liens, suits, demands and/or actions for damages, injuries to persons (including death), property damage, (including loss of use), and expenses, including court costs, attorneys' fees and other reasonable costs, occasioned by or incidental to the Lessee's occupancy or use of the Leased Premises or the Airport and/or activities conducted in connection with or incidental to this Lease Agreement, including all such causes of action based on common, AIRPORT LEASE AGREEMENT let Works - Page 9 constitutional or statutory law, or based in whole or in part upon the negligent or intentional acts or omissions of Lessee, its officers, agents employees, invitees or other persons. Lessee must at all times exercise reasonable precautions on behalf of, and be solely responsible for, the safety of its officers, employees, agents, customers, visitors, invitees, licensees and other persons, as well as their property, while in, on, or involved in any way with the use of the Leased Premises. The Lessor is not liable or responsible for the negligence or intentional acts or omissions of the Lessee, its officers, agents, employees, agents, customers, visitors and other persons. The Lessor shall assume no responsibility or liability for harm, injury, or any damaging events which are directly or indirectly attributable to premise defects, whether real or alleged, which may now exist or which may hereafter arise upon the Leased Premises, responsibility for all such defects being expressly assumed by the Lessee. The Lessee agrees that this indemnity provision applies to all claims, suits, demands, and actions arising from all premise defects or conditions. THE I.ERSOR AND THE I,ESSEE F.X-PRESSI,Y INTEND THIS [IqDEMNITYPROVISION TO REQIIIRE I.ESSEE TO INDEM-N1FY ~ PROTECT THE I,ESSOR FROM Tt41~, CONSEQIIENCER OF TI-tE TE. SSOR'S OVvDq NEGT,IGENCE WHII,E I,ERSOR IS PARTICIPATING IN THIS I,EASE AGREEMENT WI-tERE THAT NF, GIJGENICE lS A CONCIIRRING CAIISE OF THE IN.IIIRY: DEATH: OR DAMAGF.. NOTWITHSTANDING TI-IE TERMS OF TlUlE PRECF, DING SENTENCES: TI-lIS INDEMNITY PROVISION DOES NOT APPI,Y TO ANY CI,AIM; T.OSS: DAMAGE: CAIISE OF ACTlONI: SIIIT AND LIAFIII,ITY VVr[-IERE THE INI.IIIR¥: DEATI-I: OR DAMAGE RF..qTII,TS FROM TI-IF, ROI,E NEGI,IGENCE OF TI-IE I.ESROR OR ANIy OF lT~q EMPI,OYEES: CONTR ACTORS. OR AGENTS: IINMIXED W1TI-I TIlE FAIY[.T OF ANY OTHF. R PERSON OR ENTfTY_ 12. Chemicals. Lessee agrees to properly store, collect and dispose of all chemicals and chemical residues; to properly store, confine, collect and dispose of all paint, including paint spray in the atmosphere, and paint products; and to comply with all Local, State and Federal regulations governing the storage, handling or disposal of such chemicals and paints. Further, the Lessee shall be solely responsible for all discharges, whether accidental or intentional, of any chemical and for the costs associated with the cleanup, remediation and disposal of said chemicals. 13. laaz~rdous Activities. Should Lessee violate any law, rule, restriction or regulation of the City of Denton or the Federal Aviation Administration, or any other regulatory authority, or should the Lessee engage in or permit other persons or agents to engage in activities which could produce hazards or obstruction to air navigation, obstructions to visibility or interference with any aircraft navigational aid station or device, whether airborne or on the ground, AIRPORT LEASE AGREEMENT JetWorks - Paqe 10 then Lessor shall state such violation in writing and deliver written notice to Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the Leased Premises who are causing said violation(s), and upon delivery of such written notice, Lessor shall have the right to demand that the person(s) responsible for the violation(s) cease and desist from all such activity creating the violation(s). In such event, Lessor shall have the fight to demand that corrective action, as required, be commenced immediately to restore the Leased Premises into conformance with the particular law, rule or aeronautical regulation being violated. Should Lessee, Lessee's agent, or the person(s) responsible for the violation(s) fail to cease and desist from said violation(s) and to immediately commence correcting the violation(s), and to complete said corrections within twenty-four (24) hours following written notification, then Lessor shall have the right to enter onto the Leased Premises and correct the violation(s) at the sole cost and expense of Lessee, and Lessor shall not be responsible for any damages incurred to any improvements on the Leased Premises as a result of the corrective action process. In addition, such violation shall be considered a material default by Lessee authorizing Lessor, at its sole option and discretion, to immediately terminate and cancel this Lease Agreement. C. SIG.]SS. No signs, posters, or other similar devices ("Signage") shall be placed on the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport property without the prior written approval of Lessor. Lessee, at its sole expense, shall be responsible for the creation, installation and maintenance of all such Signage. Lessee shall pay to Lessor any and all damages, injuries, or repairs resulting from the installation, maintenance or repair of any such Signage. Any Signage placed on the Leased Premises shall be maintained at all times in a safe, neat, sightly and good physical condition. All signage shall be removed from the Leased Premises by Lessee immediately upon receipt of instructions for removal of same from Lessor, including without limitation, upon expiration or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor may do so at the sole cost and expense of Lessee. Lessee shall be permitted the right to place two wall signs, no greater than thirty-two square feet each, identifying the commercial hangar operation. All signage shall comply with all applicable ordinances including the City of Denton sign ordinance." D. ENTRY. Lessor and its designees shall have the fight to enter the Leased Premises upon reasonable advance notice (written or oral) and at any reasonable times for the purposes of inspecting the Leased Premises, performing any work which Lessor elects to perform under this Lease Agreement, and exhibiting the Leased Premises for sale, lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any work, which under any other provision of this Lease Agreement Lessee is required to perform, and any performance by Lessor shall not constitute a waiver of Lessee's default. AIRPORT LEASE AGREEMENT Jet Works - Page 11 VI. C. OV~.NANtT,q BY T Lessor hereby agrees as follows: A. pF. ACF, FI ~I, ENIOV-MFNT. Upon on payment of all rent, fees, and performance of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee shall peaceably hold and enjoy the Leased Premises and alt rights and privileges herein granted. B. COM-PlIANC. E_ Lessor warrants and represents that in the establishment, construction and operation of the Airport, that Lessor has heretofore and at this time is complying with all existing roles, regulations, and criteria distributed by the Federal Aviation Administration, or any other governmental authority relating to and including, but not limited to, noise abatement, air rights and easements over adjoining and contiguous areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for any action of trespass or similar cause of action by virtue of any aerial operations of adjoining property in the course of normal take-off and landing procedures from the Airport; Lessor further warrants and represents that at all times during the Lease Term, or any renewal or extension of same, that it will continue to comply with the foregoing. VII. SPECIAl. CONDITIONS It is expressly understood and agreed by and between Lessor and Lessee that this Lease Agreement is subject to the following special terms and conditions. RI~rWAY,q AND TAXIWAYS. Because of the present sixty thousand (60,000) pound continuous use weight bearing capacity of the taxiway of Lockheed, Lessee herein agrees to limit all aeronautical activity including landing, take-off and taxiing, to aircraft having an actual weight, including the weight of its fuel, of sixty thousand (60,000) pounds or less, until such time that the runway and designated taxiways on the Airport have been improved to handle aircraft of such excessive weights. It is further agreed that, based on qualified engineering studies, the weight restrictions and provisions of this clause may be adjusted, up or down, and that Lessee agrees to abide by any such changes or revisions as such studies may dictate. "Aeronautical activity" referred to in this clause shall include any activity of the Lessee or its agents or subcontractors, and its customers and invitees, but shall not include those activities over which it has no solicitory part or control, such as an unsolicited or unscheduled or emergency landing. A pattem of violating the provisions of this section on two or more occasions shall be sufficient to cause the immediate termination of this entire Lease Agreement and subject Lessee to liability for any damages to the Airport that might result. AIRPORT LEASE AGREEMENT Jet Works - Page 12 VIII. 1 ,F,A.qF. HOI .D IMPROVEMENTS A. REQIIIREMF, NTS: Before commencing the construction of any improvements on the Leased Premises including Lessee's Improvements (the "Lease Improvements'), Lessee shall submit: Documentation, specifications, or design work, to be approved by the Lessor, which shall establish that the improvements to be built or constructed upon the Leased Premises are in conformance with the overall size, shape, color, quality and design, in appearance and structure of the program established by Lessor on the Airport. 2. All plans and specifications showing the location upon the Leased Premises of the proposed construction and improvements; 3. The estimated cost of such construction. No constmction may commence 'until Lessor has approved the plans and specifications and the location of the Lease Improvements, and the estimated costs of such construction. Approval by the Lessor shall not be unreasonably withheld. Documentary evidence of the actual cost of construction on public areas only (such as taxiways) shall be delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he shall have found to have been paid by Lessee, and the findings of the City Manager when endorsed by him upon said contract shall be conclusive upon all parties for all purposes of this Lease Agreement. No later than 30 days after completion of the Lease Improvements, Lessee shall submit to Lessor detailed as built plans of the Lease Improvements and documentary evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements ("Cost to Construct Lease Improvements"). B. ADDITIONAl. CONSTRIICTION OR IMPROVEMENTS: Lessee is hereby authorized to construct upon the Leased Premises, at its own cost and expense, buildings, hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in connection with the operations authorized by this Lease Agreement, provided however, Lessee shall comply with all of the requirements of Section VIII.A., above. Such additional improvements shall be a part of the Lease Improvements. C. OWNF. RglqlP OF IMPROVEMFNTS: Except as otherwise provided in this Lease Agreement, the Lease Improvements constructed upon the Leased Premises by Lessee shall remain the property of Lessee during the Lease Term subject to the following conditions, terms and provisions: 1. Removal of Buildings. No building or permanent fixture may be removed AIRPORT LEASE AGREEMENT Jet Works - 17 age I. 3 from the Leased Premises. ~. The Lease Improvements shall automatically become the property of Lessor absolutely free, without any cost to Lessor, at the end of the Lease Term, or any extension thereof. o Failure to Complete l.e.q~qee's Improvements. The Lease Improvements shall immediately become the property of Lessor at no cost, expense, or compensation to Lessee should Lessee fail to complete the Lessee's Improvements within the Construction Period as provided in Section ll.D. of this Lease Agreement. Cancellation or Terminafinn. Should this Lease Agreement be cancelled or terminated before the end of the Lease Term, or extension thereof, Lessor shall have the right to purchase all of the Lease improvements. In the event of a cancellation or termination, other then due to a default by Lessee that has not been cured as provided below, the purchase price shall be equal to the most recent value of the Lease improvements as determined by the Denton County Central Appraisal District ("Value of the Lease improvements') reduced by 1/30 for each year of the Lease Term that has expired as of the date of termination (the "Purchase Price"). Should the Denton County Central Appraisal District not determine a separate value for the Lease Improvements, or should such separate valuation be older than two years, then the Purchase Price will be determined taking the Cost to Construct the Lease Improvements reduced by 1/30 for each year the Lease Term has expired as of the date of termination. If the termination or cancellation is due to a default by Lessee that has not been cured within 30 days after whtten notice of default to Lessee, then the Purchase Price as determined above shall be reduced by 50%. However, if Lessee provides written notice to Lessor within said 30 day cure period that it is impossible to .cure such default within said time period, then the Lessor may consent to an extension of such time to cure, which consent will not be um-easonably withheld. IX. SI IBROGATION Ole MORTGAG]~.Ie, Any person, corporation or institution that lends money to Lessee for construction of any hangar, structure, building or improvement and retains a security interest in said hangar, structure, building or improvement shall, upon default of Lessee's obligations to said mortgagee, have the right to enter upon the Leased Premises and operate or manage said hangar, structure, building or improvement according to the terms of this Lease Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the loan is paid in full, whichever comes first, but in no event longer than the Lease Tenn. It is expressly understood and agreed that the right of the mortgagee referred to herein is limited and restricted to those improvements constructed with funds borrowed from mortgagee, those improvements purchased with the borrowed funds, and those improvements pledged to secure the refinancing of the improvements. AIRPORT LEASE AGREEMENT Jet Works - Page 14 X. gJ~GI-TT OF EA,qEMF, NT Lessor shall have the right to establish easements, at no cost to Lessee, upon the Leased Premises for the purpose of providing underground utility services to, fi:om or across the Airport property or for the construction of public facilities on the Airport. However, any such easements shall not interfere with Lessee's use of the Leased Premises and Lessor shall restore the property to the original condition as is reasonable practicable upon the installation of any utility services on, in, over or under any such easement at the conclusion of such construction. Construction in or at the easement shall be completed within a reasonable time. XI. fiRSTGNMF. NT OF T,EASE Lessee expressly covenants that it will not assign this Lease Agreement, convey more than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise, transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose, eXcept for rental of hangar space or tie-down space for storage of aircraft only, without the written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval of such sale, sublease, transfer, license, or assignment of the facilities for Airport related purposes; provided however, that no such assignment, sublease, transfer, license, sale or otherwise shall be approved if the rental, fees or payments, received or charged are in excess of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or otherwise. The provisions of this Lease Agreement shall remain binding upon the assignees, if any, of Lessee. XII. INSI IR ANICE A. }ZF. QIIIRF, D INISI IR ANCE: Regardless of the activities contemplated under this Lease Agreement, Lessee shall maintain continuously in effect at all times during the term of this agreement, at Lessee's sole expense, the following minimum insurance coverages: Commercial (Public) General Liability covering the Lessee or its company, its employees, agents, tenants and independent contractors, and its operations on the airport. Coverage shall be in an amount not less than $1,000,000 per occurrence and provide coverage for premises/operations and contractual liability AND where exposure exists, coverage for: products/completed operations; explosion, collapse and underground property damage. All risk property insurance on a replacement cost basis coveting loss or damage to all facilities used by the Lessee, either as a part of this agreement or erected by the Lessee subsequent to this agreement. Under no circumstances shall the Lessor be liable for any damages to fixtures, merchandise or other personal property of the Lessee or its tenants. AIRPORT LEASE AGREEMENT Jet Works - Page 15 3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non- Owned Autos and Hired Cars: For operation in aircraft movement areas the limit of liability shall be $100,000 per occurrence. For other operations the limit of liability shall be consistent with the mount set by State Law. B. ADDITIONAl. COVFR AGF. S: In addition to the above referenced coverages, the following insurance is required if the activity or exposure exists or is contemplated: Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public) General Liability shall include coverage or separate coverage shall be provided for Environmental Impairment Liability. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an mount of $100,000 per person (per passenger seat) shall be provided. Aircraft Rental or Flight Training, Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability, Passenger Liability in the amount of $100,000 per person (per passenger seat) and Student/Renter Liability covering all users in the amount of $500,000 per occurrence. Specialized Commercial Flying (including crop dusting, seeding, and spraying, banner towing and aerial advertising, aerial photography and surveying, fire fighting, power line or pipe line patrol) - Aircraft Liability in the amount of $I,000,000 per occurrence to include Hull Coverage and Liability. In addition, Passenger Liability in an amount of $100,000 per person (per passenger seat) shall be provided. Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount of $1,000,000 per occurrence to include Hull Coverage and Liability. In addition, Hanger Keepers Liability in the amount of $500,000 per occurrence shall be provided. The requirement for Hangar Keepers Liability shall not apply to individual owner/operators whose primary use of the hangar space is the storage of their own aircraft. The requirement does not apply to such individuals notwithstanding the fact that they may, from time to time, permit the storage of non-owned aircraft in the hangar space and charge a fee for the storage of such aircraft so long as such use is in the nature of a rent-sharing agreement rather than a commercial aircraft storage business. C. COVFRAGE RF, QI I1RF~MF. NT,q: All insurance coverages shall comply with the AIRPORT LEASE AGREEMENT Jet Works - Page 16 following requirements: All liability policies shall name the City of Detuon, and its officers and employees as an additional named insured and provide for a minimum of 30 days written notice to the City of any cancellation or material change to the policy. All insurance required by this Lease Agreement must be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas. All policies are subject to the examination and approval of the City's office of RiSk Management for their adequacy as to content, form of protection and providing company. Required insurance naming the City as an additional insured must be primary insurance and not contributing with any other insurance available to the City whether fi:om a third party liability policy or other. Said Limits of insurance shall in no way limit the liability of the Lessee hereunder. The Lessor shall be provided with a copy of all such policies and renewal certificates. Failure of Lessee to comply with the minimum specified amounts or types of insurance as required by Lessor shall constitute Lessee's default of this Lease Agreement. During the Lease Term, or any extension thereof, Lessor herein reserves the fight to, with 60 days notice, adjust or increase the liability insurance amounts required of the Lessee, and to require any additional rider, provisions, or certificates of insurance, and Lessee hereby agrees to provide any such insurance requirements as may be required by Lessor; provided however, that any requirements shall be commensurate with insurance requirements at other public use airports similar to the Denton Municipal Airport in size and in scope of aviation activities, located in the southwestern region of the United States. XIII. CANCFJJ,ATICINI BY T,F.R,qOR In the event that Lessee shall file a voluntary petition in bankruptcy or proceedings in bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets pursuant to proceedings brought under the provisions of any Federal reorganization act, or Lessee shall be divested of its estate herein by other operation of law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or conditions herein contained, or on its part to be performed, the Lessor may give Lessee written notice to correct such condition or cure such default and, if any condition or default shall cominue for thirty (30) days after the receipt of such notice by Lessee, then Lessor may terminate this Lease Agreement by written notice to Lessee. However, if Lessee provides written notice to Lessor within said 30 day cure period that it is impossible to cure such default within said time period, then the Lessor may consent to an extension of AIRPORT LEASE AGREEMENT Jet Works - Page ~.7 such time to cure, which consent will not be unreasonably withheld. In the event of default, Lessor has the right to purchase any or all of the Lease Improvements under the provisions of Section VIII.C.4. hereof. XIV. CAN[CFI,I.ATTON BY 1 Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of its obligations hereunder at any time, by thirty (30) days written notice, upon or after the happening of any one of the following events: (1) issuance by any court of competent juris- diction of a permanent injunction in any way preventing or restraining the use of the Airport or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or agreements contained herein and the failure of Lessor to remedy such breach for a period of ninety (90) days after receipt of a written notice of the existence of such breach; (3) the inability of Lessee to use the Lease Premises and facilities continuing for a longer period than ninety (90) days due to any law or any order, role or regulation of any appropriate governmental authority having jurisdiction over the operations of Lessor or due to war, earthquake or other casualty; or (4) the assumption or recapture by the United States Govemment, or any authorized agency thereof, of the maintenance and operation of said airport and facilities or any substantial part or parts thereof. Upon the happening of any of the four events listed in the preceding paragraph, such that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its terms, except, however, that the use of the Leased Premises shall not be limited to aviation purposes, their use being only limited by such laws and ordinances as may be applicable at that time. Should Lessor close the Airport and relocate the Airport to another location during the primary term of this Lease Agreement, Lessee shall have the fight to relocate its facilities to the new airport at a suitable location under the same or similar terms of this Lease Agreement. The cost of relocation of Lessee's facilities will be shared by Lessor and Lessee in proportion to the number of years remaining on the primary term of this Lease Agreement. In this regard Lessor will be responsible for 1/30 of the such costs for every year remaining on the primary term. XV. MI,qCEI J .AN-F~OI l~q PR OVIgTIDNIS A. ENTIRE AGREEMENT. This Lease Agreement constitutes the entire understanding between the parties and as of its Effective Date supersedes all prior or independent Agreements between the parties covering the subject matter hereof. Any change or modification hereof shall be in writing signed by both parties. B. FIIND1NIG EFFF. CT. All covenants, stipulations and agreements herein shall extend to, bind and inure to the benefit of the legal representatives, successors and assigns AIRPORT LEASE AGREEMENT Jet Works - Page 18 of the respective parties hereto. C. SEVFJRAlclII ,lTV. If a provision hereof shall be finally declared void or illegal by any court or administrative agency having jurisdiction, the entire Lease Agreement shall not be void; but the remaining provisions shall continue in effect as nearly as possible in accordance with the original intent of the parties. D. NOTICE. Any notice given by one party to the other in connection with this Lease Agreement shall be in writing and shall be sent by certified mail, return receipt requested, with postage fees prepaid or via facsimile as follows: 1. If to Lessor, addressed to: City Manager City of Denton 2 t 5 E. McKinney Street Denton, Texas 76201 Fax No.940.349.8596 2. If to Lessee, addressed to: Chris Hoskins, President Jet Works Aviation, Inc. 400 Gulf Stream Road, 9S Fort Worth, Texas 76106 Phone (817) 626-4584 FaxNo. (817) 626-1928 With copy to: Morton L. Herman Cantey & Hangar L.L.P. Bumett Plaza, Suite 2100 80t Cherry Street, Unit #12 Fort Worth, Texas 76102-6881 Fax No. (817) 877-2807 E. I-IF, AB1NGS_ The headings used in this Lease Agreement are intended for convenience of reference only and do not define or limit the scope or meaning of any provision of this Agreement. F. C~VF. RNING LAW AND VENI IF.. This Lease Agreement is to be construed in accordance with the laws of the State of Texas and is fully performable in Denton County, Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease Agreement shall be a court of competent jurisdiction in Denton County, Texas. AIRPORT LEASE AGREEMENT Jet Works - ?aga ~.9 G. NO WAIVER. No waiver by Lessor or Lessee of any default or breach of covenant or term of this Lease Agreement may be treated as a waiver of any subsequent default or breach of the same or any other covenant or term of this Lease Agreement. H. NO AGFNCY. During all times that this Lease Agreement is in effect, the parties agree that Lessee is and shall not be deemed an agent or employee of the Lessor. I. FORCE MAJEURE. None of the Parties shall be in default or otherwise liable for any delay in or failure of performance under this Lease Agreement if such delay or failure arises by any reason beyond their reasonable control, including any act of God, any acts of the common enemy or terrorism, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications. However, lack of funds shall not be deemed to be a reason beyond a Party's reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Lease Agreement. IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the Effective Date first above written. CITY OF DENTON, TEXAS, LESSOR BY: MICHAEL A. CON-DUFF, CiTY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, C1TY ATTORNEY BY: AIRPORT LEASE AGREEMENT Jet Works - Page 20 JET WORKS AVIATION, INC. BY: CHRIS HOSKINS, PRESIDENT AIRPORT LEASE AGREEMENT Jet Works - Pacje 21 ACKNOWLEDGMENTS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the day of Michael A. Conduff, City Manager of the City of Denton, Texas, municipality. ,2004, by on behalf of said NOTARY PUBLIC, STATE OF TEXAS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ~ day of ,2004 by Chris Hoskins, President, Jet Works Aviation, Inc., a Texas corporation, on behalf of said corporation. NOTARY PUBLIC, STATE OF TEXAS AIRPORT LEASE AGREEMENT Jet Works - Page 22 PRO:POSED ~RON AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET November 16, 2004 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to approve a Right-of-Way Use Agreement with Fairfield Denton Exchange, Ltd. to allow the placement of security and communication wiring under Cleveland Street approximately 355 feet south of the intersection of West Collins Street and Cleveland Street, and providing an effective date. BACKGROUND The City has received a request by Fairfield Demon Exchange, Ltd. for a Right-of-Way Use Agreement to allow certain improvements to be located in the City right of way. The improvements consist of two 2" diameter PVC conduits installed a minimum of 36" below the road surface of Cleveland Street approximately 355' south of West Collins Street. The conduits will be used for security and communications wiring. The installation of the conduits will coincide with Fairfield Denton Exchange, Ltd.'s reconstruction of Cleveland Street. The proposed improvements do not interfere with existing improvements within the area. OPTIONS 1. Approve the Ordinance, or 2. Deny the Ordinance, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None ATTACHMENTS Location Map Ordinance Right of Way Use Agreement Site Plan Prepared by: Tod J. Taylor Real Estate Specialist Respectfully submitted: Kelly Carpenter, Acting Engineering Director PRAIRIE ST ORDI~A_NCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO APPROVE A RIGHT-OF-WAY USE AGREEMENT WITH FAIRFIELD DENTON EXCHANGE, LTD. TO ALLOW THE PLACEMENT OF SECURITY AND COMMUNICATION WIRING UNDER CLEVELAND STREET APPROXIMATELY 355 FEET SOUTH OF THE INTERSECTION OF WEST COLLINS STREET AND CLEVELAND STREET, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas f'mds that approval of the Right-of-Way Use Agreement attached hereto and make a part hereof by reference (the "AGREEMENT") is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS: SECTION 1. The recitations and findings contained in. the preamble of this ordinance are incorporated herein by reference. SECTION 2. The AGREEMENT is hereby approved. The City Manager or his designee is hereby authorized to execute the AGREEMENT on behalf of the City and to carry out the City's rights and obligations under the AGREEMENT. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBE~~TTORNEY RIGHT-OF-WAY USE AGREEMENT THE STATE OF TEXAS, § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § The City of Denton, (the "CITY") does consent and agree to permit Fairfield Denton Exchange, LTD. (the "APPLICANT"), the right to the non-exclusive use of a portion of right-of- way dedicated to the CITY which is more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "RIGHT-OF-WAY AREA") for the purposes of installing two 2" conduit pipes (the "IMPROVEMENTS") a minimum of 36" below the road surface and upon the following conditions. The conduit pipes shall be installed only at the location shown in Exhibit "A". All installations shall be conducted by boring underneath the surface of the subject street right-of-way and the surface of the RIGHT-OF-WAY AREA will not be disturbed. The Improvements will be used solely for the installation of security and communication wiring serving APPLICANT'S facilities located on the east and west side of Cleveland Street. The IMPROVEMENTS shall not interfere with existing utilities and improvements located in or near the RIGHT-OF-WAY AREA. APPLICANT has the duty locate such existing utilities and improvement, Prior to performing any work within the RIGHT- OF-WAY AREA APPLICANT shall obtain ali permits and approvals required by the CITY and perform such work in compliance with all applicable laws mad regulations. The APPLICANT, its successors or assigns shall maintain and keep in sightly condition all of the above described IMPROVEMENTS situated in the RIGHT-OF-WAY AREA as described in Exhibit "A" and the CITY shall not become responsible for such maintenance at any time in the future. Ii. The APPLICANT shall and does hereby agree to defend, indemnify and hold harmless CITY fi:om any and all damages, loss or liability of any kind whatsoever by reason of damage to property and injury to persons, including death, occasioned by its use of the RIGHT-OF-WAY AREA or act of omission, neglect or wrongdoing of APPLICANT, its officers, agents, employees, invitees or other persons, with regard to the installation or maintenance of IMPROVEMENTS; and the APPLICANT shall, at its own cost and expense, defend and protect the CITY against any and all such claims and demands. IIL The APPLICANT shall purchase and maintain Commercial General Liability Insurance naming the CITY as an "additional insured" for damages arising from the construction and maintenance of IMPROVEMENTS with a limit of not less than $250,000.00 for each person and $500,000.00 for each single occurrence for bodily injury or death and $100,000.00 for each Page 1 of 4 single occurrence for injury to or destruction of property. The APPLICANT shall arrange for all activities and improvements in the RIGHT-OF- WAY AREA to be discontinued and/or remoVed, at the direction of the CITY, within thirty (30) days of notification by CITY, that the City Council has directed the use of the RIGHT-OF-WAY AREA by the APPLICANT be discontinued; and the cost associated with the discontinuing of such activities, and the removal of such improvements, as well as property adjacent to the RIGHT-OF-WAY AREA necessitated by such discontinuation of the right-of-way use shall be borne by the APPLICANT. If APPLICANT fails to remove the IMPROVEMENTS as provided herein, the CITY may do so at the sole cost of APPLICANT. The CITY will not be liable to APPLICANT for any damages or losses that may result from the removal of the IMPROVEMENTS by either the APPLICANT or CITY. This Agreement shall be filed of record in the Real Property Records of Denton County, Texas, and shall bind all future owners of APPLICANT'S real property more particularly described as Lot 1, Block A and Lot 1, Block B of Exchange at North Texas Addition, an addition to the City of Denton, Texas, and shall, for all purposes, be considered a covenant nmning with the land. IN TESTIMONY WHEREOF, APPLICANT executes this Right-of-Way Use Agreement on this day of ., 2004. FAIRFIELD DENTON EXCHANGE, LTD., a Texas limited partnership By: FF StudentCo B LLC a Delaware limited liability company, General Partner By: StudentCo LLC, Series B, a Delaware series limited liability company, Managing Member By: Glenn D. Jones Vice President Page 2 of 4 CITY OF DENTON, TEXAS By: Michael A. Conduff City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FO,~2VI: HERB~ORNEY By: ~/~/ ACKNOWLEDGEMENTS THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the __ day of , 2004 by Michael A. Conduff, City Manager of the City of Denton, Texas, on behalf of said city. Notary Public, in and for the State of Texas Page 3 of 4 My Commission expires: .. THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the __ day of ,2004 by Glenn D. Jones, Vice President of SmdentCo LLC, Series B, a Delaware series limited liability company, Managing Member of FF StudentCo B LLC, a Delaware limited liability company, which is the general partner of Fairfield DentOn Exchange, Ltd., a Texas limited partnership, on behalf of said Texas limited parmership. Notary Public, in and for the State of Texas My Commission expires: Page 4 of 4 EXHIBIT "A" P X 2' CONDUIT CROSSING STREET FAIR1FELD RESIDENTIAL, LLC. EXCMANGE @ UNT 8' CQNI)UIT CLEV£LANI] ~T. CROSSING THIS PAGE INTENTIONALLY LEFT BLANK AGENDA DATE: DE! AR. TM ENT, CM/DCM/ACM: AGENDA I; I, OliuMA~ION SHEET November i &~ '~'', L~4" ~.,eg a l Dcpa:rm~e't~[~ iterb E r~. up,, Cil;v AtionleV SUBJECT: Consider a an ordmm'~ce oF the City Cow, cji of!J:m City of Denton, Texas approving and auth, ori, zing sen!ement of litigation stvled Digwuh ~ CiO ,q/'.Demc.~, Ca:use Nc. 2002~41462- 362 , filed in tl~e 367~ District'~;our~ o~' Denton County~ pursuant t:a ~!'~c proposed settle'merit agreen'lent to be dated Novcmber i7, 200,4; attlhorizing tile City Manager mx! the City's allorneys Io act on die Ciiy's hd'ml f in executirlg any and all documents, and to take od~er actior~s necessary, to fina]ixe the setiiomont and release of ciaims; and declaring an effkclive date. BACKGROUND: This is an cmpk:?]'nen:t discriminalio'!:~ case~ This case was mediated on November 5,, 2004 and the p~n:ties reached a confidential setl}ement agveemeni. Tl~e .aknTeemem: will be executed on No~;cmber 17, 2004, and i]]e selt[emcnt deLails wi]i be f't'trnished to CotmciI in dm November !2, 2004 City Ar'tomey's Status Report, OPTIONS: 1, Pass the ordinance to aulho, rize exccution o f' Lhe agreement Decline to pass 't:he ordin:ance t:o :authorize executiol~ o:~' thc agreemenL O RD, I N A N £' 1.!, N O, AN' ORDINANCE OF THE CI~I/T OF DEN'!ON, TEXAS AUTHORIZING SETTLEMEN]~ OF I,I']'iGAYION SI'YLED G().,tiS'O:V U(~l!:~'(,.:?::,r '~; CTD' OF' D~q,XLirON~ ~2U.I,S~ E? 4L. CA[JSE NO, 2002-41462~362, F'ILED iN: THE 362:''~ .DtSTI:~.ICT COl/RI'" OF DENTON' COUNTY: APPROV]~NG THE PROPOSED SETTLEMENT AGREEMENT TO 7BE DATED NOVEMBER [7, 21X)4,; AUTIdOR[ZFNG "ITI[E Ci'TY MANAGER AND TIlE C][Y'S ATTORNEYS TO ACT ON Tile CITY'S BEHALF iN EXECUTING ANY AND :~L DOCLMENTS, AND TO TAKE OTNER ACTIONS NECESSARY TO FINA!.IZE DIE SETFLEMENT AND RELEASE OF Ct.AIMS; AND DECLARING AN EFFECTIVE DATE~ TI[]E COUNCiI. OF TI'[E CITY ()F DBNTON ]IEREBY ORDAINS: SECT.ION 1: That cern:dh pr'oposed SeU:!ement AgrccmenL io be d. aed November 17, 41462-3{:~2 in the ~6~ D~smct Court o~: Dcnton Corer!fy; is hereby approved, and the Mm~ager and tl:'~e City's Attorneys arc hereby au[hofized to execute orders re:leasing and dismissing ail claims and a~l other documents, in ~5>m:~s approved by [he City Attorney, and ~:ake all other actions necessary 1:o finalize Lhe Settlement A. greemen!.. SE,:FION 2: a nd approv:lll, Thai; th. is ordinance sha}l beco:me effective immedialcly upon its passage .FASSEE AND A: I: R0\,.'kD this the E'[.. LiN E i>,ROCK,, MAYOR ATTEST:: ,! ENNhrER WALTERS. '.,[] 5 SECRETARY APPROV ED' AS TO LEGAL FORM. !?IERIZEK] L, PROLiI"f,: CITS' AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: November 16, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z04-0036 (Jim McNatt Automotive) Hold a public hearing and consider adoption of an ordinance rezoning approximately 6.1 acres from a Regional Center Commercial Neighborhood (RCC-N) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. The property is generally located 1,500 feet east of State School Road, on the south side of Interstate 35. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Honda Properties, LC Denton, TX The applicant requests to rezone the property from RCC-N to RCC-D because uses applicant intends to place on the property are not allowed in RCC-N. The RCC-D zoning designation is compatible with neighboring zoning designations, and is in compliance with the intent of the Denton Plan. Public notification and property owner responses are provided in Attachment 3. As of this writing, staff has received no written responses from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is platted. PRIOR ACTION/REVIEW The following is a chronology ofZ04-0036: Ordinance 2002-040, adopted February 2002, placed the subject property in the Regional Center Commercial Neighborhood (RCC-N) zoning district and land use classification. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned Commercial. Automotive sales was a permitted use in Commercial zoned districts. On October 13, 2004, the Planning & Zoning Commission approved (7-0) to rezone approximately 6.1 acres from a Regional Center Commercial Neighborhood (RCC-N) zoning district to a Regional Center Commercial Downtown (RCC-D) zoning district. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photo 5. Minutes from the June 23, 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 6.1 acres from a Regional Center Commercial Neighborhood (RCC-N) zoning district to a Regional Cemer Commercial Dowmown (RCC-D) zoning district. The requested zoning change would allow the applicam to develop the property for automotive sales uses. Existing Condition of Property The subject property is developed as an automotive sales lot. Adjacem Zoning North: Regional Cemer Commercial Dowmown (RCC-D) zoning district South: Regional Cemer Commercial Neighborhood (RCC-N) zoning district East: Planned Developmem 12 (PD-12)zoning district West: Regional Cemer Commercial Neighborhood (RCC-N) zoning district Comprehensive Plan Analysis The subject site is located within a "Regional Mixed Use Centers" future land use area. Regional Mixed Use Centers are intended to contain the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity cemer could comain developmems such as a regional shopping mall, big box retail, superstores, restaurant and entertainment facilities, a high school or community college, and high-density housing. The proposed commercial facilities are compatible with the Regional Mixed Use Cemers uses as stated within the Denton Plan. The request to rezone the subject property is compatible with the Future Land Use Plan (Regional Mixed Use Cemers) and with the surrounding zoning designations. The proposed zoning change is in compliance with the DeNon Plan. Development Review Analysis Transportation Access to the property is limited to the 1-35 service road. Public Infrastructure Adequate utilities exist to serve the site. Development Code / Zoning Analysis The Regional Cemer Commercial Neighborhood (RCC-N) zoning district permits a variety of commercial and institutional uses, most with some type of limitation. The Regional Center Commercial Dowmown (RCC-D) zoning district permits a broad array of uses, most with no limitations. The charts below illustrate the differences between the two zoning districts. Limitations for each use are explained below the charts. Single Family Dwellings N N Attached Single Family Dwellings P P Dwellings Above Businesses P P Duplexes N N Community Homes For the Disabled P P Group Homes SUP SUP Multi-Family Dwellings L (6) L (6) Light Manufacturing N L (23) Veterinary Clinics L (14) P Gas Wells L (27) L (27) Retail Sales and Service L (13) P Restaurant or Private Club P P Professional Services and Offices L (14) P Quick Vehicle Servicing P P Vehicle Repair N P Auto and RV Sales N P Laundry Facilities P P Limitations: L (6): Permitted only on second story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L (13): Uses are limited to no more than 55,000 square feet of gross floor area per lot. L (14): Uses are limited to no more than 10,000 square feet of gross floor area. L (23): Light manufacturing exceed 5,000 square feet. of products sold on site permitted, area of manufacture not to L (27): Must comply with the provisions of Subchapter 89, Gas Well Drilling and Production. The limitations listed above regulate the specifics of each use allowed within the zoning district. Any proposed development on this site is required to be in compliance with the site design standards of the Development Code. An approved site plan for the proposed development will be required prior to the issuance of any building permit. The chart below illustrates the difference between the two zoning districts, with regard to general zoning district regulations: Maximum Density, dwelling units per acre 80 100 Maximum Lot Coverage 85% 90% Minimum Landscaped Area 15% 10% Maximum building height 65 feet 100 feet On a similar note, in March of 2004, City Council approved a detail plan amendment for Planned Development 12 (PD-12), adjacent to the east, permitting automotive sales uses. Staff Findings The proposed zoning change is compatible with neighboring zoning designations, and is in compliance with the intent of the Denton Plan. Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change. ATTACHMENT 2 Location/Zoning Map RCR-1 NORTH Land Use Map ATTACHMENT 3 Notification Map NORTH Scale: None Public Notification Date: September 27, 2004 200' Legal Notices* sent via Certified Mail: 3 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 0 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Demon TX 76201 ATTACHMENT 4 Site Photo CondenscItTM 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 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 97 COMMISSIONER POWELL: 6D, rezoning of approximately 6.1 acres from a Regional Center Conm~ercial Neighborhood, Reck,/zoning district to a Regional Center Commercial Downtown Zoning District. This property is generally located 1,500 feet east of State School Road on the south side of 1-35. Go forward. MS. BATES: chairman, members of the Conunission, tile request before you is 6.1 acres to be rezoned from tile RCC~q zoning district to the RCCD zoning district. This is currently -- to make you familiar with the sitc, this is cmvently Fun Time nv. The applicant is requesting to rezone the property to RCCD. which would allow uses tha~; are similar to uses that were permitted under the old commercial zoning district prior to the city-wide mzoning. As of this meeting, we have received no notices or replies in favor or in opposition to the request. And I'll be happy to answer any questions. COMMISSIONER POWELL: QUeStions of staff?. I don't see any on the board. I don't see any hands raised. No questions of staff, I'll open the public hearing and ask if anybody in the audience would like to speak for, against, or on Item 6D? Seeing none, I'll close tile public hearing and ask for discussion or a motion on 6D. Ms. Holt. approval. Page 98 COMMISSIONER HOLT: MOVe approval. COMMISSIONER POWELL: MS. Holt moves COMMISSIONER STRANGE: second. COMMISSIONER POWELL: second by Virgil Strange. Any discussion? Ms. Holt, you're still up there. There we go. Okay. I'll call for a vote. Thank you. Motion passes %0. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 122 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 I3 14 15 16 17 18 19 2O 21 22 23 24 25 PLANNING AND ZONING MINUTES OCTOBER 13, 2004 Page 99 Page 100 Page 97 - Page 100 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM REGIONAL CENTER COMMERCIAL NEIGHBORHOOD (RCC-N) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO REGIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR APPROXIMATELY 6.1 ACRES OF LAND LOCATED ADJACENT TO THE SOUTH SIDE OF INTERSTATE 35E APPROXIMATLEY 1,500 FEET EAST OF STATE SCHOOL ROAD, 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. (Z04-0036) WHEREAS, Honda Properties, LC has applied for a change in zoning for approximately 6.1 acres of land located adjacent to the south side of Interstate 35E approximately 1,500 feet east of State School Road, and more particularly described in Exhibit "A' attached hereto and made a part hereof as Exhibit "A" (the "Propemy") from Regional Center Commercial Neighborhood (RCC-N) zoning district classification and use designation to Regional Center Commercial Downtown (RCC- D) zoning district classification and use designation; and WHEREAS, on October 13, 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 Regional Center Commercial Neighborhood (RCC-N) zoning district classification and use designation to Regional Center Commercial Downtown (RCC-D) zoning district classification and use. SECTION 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. Anyperson violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is. violated shall constitute a separate and distinct offense. Page :1. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ., 2004. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: November 16, 2004 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - Z04-0037 (Glenwood Meadows) Hold a public hearing and consider adoption of an ordinance rezoning approximately 95.1 acres from a Neighborhood Residential 2 (NR-2) zoning district to a Neighborhood Residential 3 (NR- 3) zoning district with an overlay. The property is generally located on the east side of Bonnie Brae, approximately 750 feet north of Vintage Boulevard. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: Holigan Land Development Dallas, TX The applicant is requesting to rezone the subject property to a Neighborhood Residential 3 (NR- 3) zoning district with an overlay permitting four (4) foot side yard setbacks. The applicant is requesting the zoning change in order to subdivide the property for residential uses. Based on the current Neighborhood Residential 2 (NR-2) zoning district, 2 dwelling units are allowed per acre for single-family uses. The applicant is proposing to rezone approximately 95.1 acres from NR-2 to a Neighborhood Residential 3 (NR-3) zoning designation. The NR-3 zoning district permits 3.5 dwelling units per acre for single-family uses. The rezoning would allow the applicant to subdivide the property into a maximum of 332 single-family lots. Public notification and property owner responses are provided in Attachment 3. As of this writing, staff has received no written responses in opposition from property owners within 200 feet of the subject site. OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. PRIOR ACTION/REVIEW The following is a chronology ofZ04-0037: 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 in the Agricultural zoning district. On October 13, 2004, the Planning & Zoning Commission approved (7-0) to rezone approximately 95.1 acres from a Neighborhood Residential 2 (NR-2) zoning district to a Neighborhood Residential 3 (NR-3) zoning district with an overlay. The property is generally located on the east side of Bonnie Brae, approximately 750 feet north of Vintage Boulevard. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map) 4. Site Photo 5. Floodplain Map 6. Minutes from the June 23, 2004, Planning & Zoning Commission Meeting 7. 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 95.1 acres from a Neighborhood Residential 2 (NR-2) zoning district to a Neighborhood Residential 3 (NR-3) zoning district with an overlay permitting four (4) foot side yard setbacks. Single-family uses are proposed. Existing Condition of Property The subject property is primarily undeveloped, however two gas wells currently exist on the property. The site contains approximately 64 acres classified as Undeveloped Floodplain and ESA. The requirements of Development Code 35.17.4 will apply. The area within the limits of the natural floodplain must be dedicated as a drainage easement. Drainage improvements will be required on the preliminary and final plats. Adjacent Zoning North: Neighborhood Residential 2 (NR-2) zoning district South: Neighborhood Residential 6 (NR-6) zoning district East: Extraterritorial Jurisdiction (ET J) West: Planned Development 139 (PD-139)zoning district Comprehensive Plan Analysis The subject site is located within the "Neighborhood Centers" future land use area. These areas may develop in conventional patterns or may be developed in a pattern of 'neighborhood centers'. Neighborhood centers are oriented inwardly, focusing on the center of the neighborhood and containing facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elementary school. The permitted uses within the Neighborhood Residential 3 zoning district are compatible with the Neighborhood Centers uses as stated within the Denton Plan. The request to rezone the subject property is compatible with the Future Land Use Plan (Neighborhood Centers) and with the surrounding zoning designations. The proposed zoning change is in compliance with the Denton Plan. Development Review Analysis Transportation A Traffic Impact Analysis will be required upon final platting. Public Infrastructure Utility service will be determined during platting. 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. Based on the current NR-2 zoning designation, a maximum density of 2 dwelling units per acre is permitted in the form of single-family dwelling units. The NR-3 zoning district permits a maximum density of 3.5 dwelling units per acre, in the form of single-family dwelling units. Attached single-family dwelling units (i.e. townhomes) are allowed only with approval of a Specific Use Permit. The charts below illustrate the differences between the two zoning districts. Limitations for each use are explained below the charts. Single Family Dwellings P P SUP SUP Accessory Dwelling Units b(1) b(1) Attached Single Family Dwellings N SUP Multi-Family Dwellings N N Manufactured Housing Developments SUP N Kennels L (37) N Veterinary Clinics L (14) N SUP Gas Wells L (27) b (27) Equestrian Facilities SUP N Outdoor Recreation P P Semi-public, Halls, Clubs, and Lodges SUP SUP Adult or Child Day Care SUP SUP Limitations: L (1): Accessory dwelling units are permitted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residemial structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of Ld).5. 4. One additional parking space shall be provided that conforms to the off-street parking provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residemial structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than ten acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than ten acres. L (2): For infill lots, the from setback shall be an average of the adjacem lots. L (14): Uses are limited to no more than 10,000 square feet of gross floor area. L (27): Must comply with the provisions of Subchapter 89, Gas Well Drilling and Production. L (37): 5-acre minimum land area required and no more than 25 kennels per acre allowed, including indoor and outdoor runs. A natural buffer strip is required adjacem to any residemial USe. The limitations listed above regulate the specifics of each use allowed within the zoning district. Any proposed developmem on this site is required to be in compliance with the site design standards of the Developmem Code. An approved site plan for the proposed developmem will be required prior to the issuance of any building permit. The chart below illustrates the difference between the two zoning districts, with regard to general zoning district regulations: Minimum front yard setback 20 feet 15 feet b (2) Minimum side yard 6 feet 6 feet Minimum rear yard 10 feet 10 feet Minimum Landscaped Area 40% 20% Maximum lot coverage 30% 50% Minimum landscaped area 70% 55% Maximum building height 40 feet 40 feet Limitations: L (2): For infill lots, the from setback shall be an average of the adjacem lots. Staff Findings The proposed zoning change is compatible with neighboring zoning designations, compliance with the intent of the Denton Plan. and is in Staff Recommendation Based on the above findings, staff recommends approval of the requested zoning change and overlay. ATTACHMENT Location/Zoning Map NORTH Land Use Map hborhoad Center SITE Neighborhood Center ~¢NTAGF_ Neighborhood Center ATTACHMENT 3 Notification Map NORTH Limits of 500' Notification In Favor Limits of 200' Notification Scale: None Public Notification Date: September 27, 2004 200' Legal Notices* sent via Certified Mail: 8 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 1 · Neutral: 0 *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Site Photo ATTACHMENT Floodplain Map NORTH SITE CondenseltTM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 t8 19 2O 21 22 23 24 25 Page 101 COMMISSIONER POWELL: we'll move on to 6E, rezoning of approximately 95.1 acres from a Neighborhood Residential 2 zoning district to a Neighborhood Residential 3 zoning district with an overlay. Tile property is generally located on the east side of Bonnie Brae approximately 750 feet north of Vintage Boulevard. Donna. MS. [~ATES: ^gain, 'this is 95, approximately 95 acres. The applicant is requesting to go from NR-2 to the NR-3 With one overlay, which would allow a decrease in the side yard setback from six feet to four feet. I'd like to point out that the majority of this property along here is -- all of this to the north of this is inside the flood plain and would remain open space and undeveloped. The properties notified surrounding the -- within 200 feet, we notified eight property ovalers. We received no notices in favor or in opposition. I'll be happy to answer any questions. COMMISSIONER POWELL: Any questions of staff?. I can't see it on my board hero. There we go. Mr, Strange. COMMISSIONER STRANOE: The current side yard setback in this zoning would be what, six feet? MS. BATES: six feet. Okay. COMMISSIONER POWELL: Mr. Watkins. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 103 Mr. Chairman. COMMISSIONER POWELL: SUlk. MS. CARPENTER: I think we need two clarifications h~re. The change from the six foot to thc four foot does not cause it to go from 190 to 300 and something. It's the use of the flood plain. It's moving the density off the flood plain that causes that density number, ttmt unit count to go up, not the change in the setback. Can you confirm that? And secondly, I think that the change in the setback has to do with the product that the applicant wants to put on the site, and he's here and he can explain that to you. Okay. COMMISSIONER ROY: Thank you. MS. CARPENTER: And I'm correct on the flood plain. It's -- the setback change will not cause it to go from 190 to three something. It's the use of the setback -- I mean, use of the flood plain in transferring the zoning off the flood plain that causes thaL And that's a legitimate use of the flood plain for transferred development rights under our Code. Is the applicant hem and would he llke to speak? Would you please give us your name and address, sir? MR~ CREAL: Yes, sir. I'm Wallie Creal with Holigan Land Development, 15950 North Dallas Parkway, Page 102 COMMISSIONER WATKINS: Thank you, Mr~ Chairman. Access to this is Bonnie Brae both ways? MS. BATES: correct. COMMISSIONER WATKINS: okay. Thank you~ COMMISSIONER POWELL: Mr. Roy. COMMISSIONER ROY: SO what is the impact of this change in setback. What -- how is it going to impact things in the future? MS. BATES: under the four foot setback or I'm sorry. Under the six foot setback, you could have approximately 190 dwelling units. With the four foot setback, you could have approximately 332. This, of course, is not including -- I mean, this, of course, is including the overall property and not taking out the property outside of the flood plain. COMMISSIONER ROY: BUt there must be -- what's the purpose of the six foot setback? What is the objective of it being six, and not five or four or eight? MS. BATES: The Development Code requires thc NR-2 zoning district to have a six foot side yard setback. COMMISSIONER ROY: okay. Humor me here. Why wouldn't seven be the right number or five be the right number? What is the purpose of the setback? MS. CARPENTER: Let me try to answer that, 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 104 Dallas. COMMISSIONER POWELL: Thank you. MR. CUE^L: ^nd I'd like to try to answer your questions. Because of the flood plain it significantly reduced fl~e size that we had to put land in. We have two gas well sites that already exist on the property, and over 45 acres is flood plain. The actual reason to want to go to four feet has more to do with the garage door requirement and having a certain percentage of file size of the lot. And by adding the extra feet, the builders can get a little bit bigger product and meet the 40 percent garage door requirement of the subdivision. We actually look if -- just within the flood plain, or outside the flood plain area of having approximately 171 lots going in there. COMMISSIONER POWELL: Mr. Watkins. COMMISSIONER WATKINS: YOU have investigated this property rather thoroughly? MR, CREAL: I believe so, sir. COMMISSIONER WATKINS: YOU realize that Bonnie Brae both ways floods in times of rain? MR, CREAL: oh, yes, sir. COMMISSIONER WATKINS: North and south of there. MR. CREAL: Yeah. Talking with the staff, PLANNING AND ZONING MINUTES OCTOBER 13, 2004 Page 101 - Page 104 CondonsoltTM 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 105 there's a question of how much of the road wc have to hnprove to get up to ours. And there's also a subdivision due south of the property that has four entrances that would come into ours as well. And our understanding is is Page 107 COMMISSIONER POWELL: ^ny other discussion on this issue or a motion? Mr. Roy. COMMISSIONER ROY: I move approval of 6E as recommended by staff. that Vintage Road is being extended all of the way over to 377 and that would provide entrances in from there as well. COMMISS[ONERWATKINS: Has that construction started? MR. CREAL: NOt tO my knowledge. I believe that's scheduled for 2005, I believe. But I'm not positive. COMMISSIONER WATKINS: well, I remember when we were talking with Liberty Ckristian School, and there was seine discussion about closing Bonnie Brae because of thc Hickory Creek Bridge, and then further 5 6 7 8 9 10 11 12 13 14 15 16 COMMISSIONER POWELL: T]lallk yOU, Mr. Roy. Is there a second? COMMISSIONER WATKINS: second. COMMISSIONER POWELL: Mr. Watkins second. Sorry, Doctor, he beat you to it. COMMISSIONER POWELL: we have a motion. We have a second on 6E for approval, Any discussion? Seeing none, I'll call for a vote. Motion passes 7-0. south. And of course the, Liberty Christian went away and t didn't hear anymore about it, but you're familiar with it and it won't pose a problem as to access to your property? MR. CREAL: COI"B~t, sir. COMMISSIONERWATKINS: All right. Thank yOU. COMMISSIONER POWELL: any other questions of the applicant7 Thank you, sir. Open the public 17 18 19 20 21 22 23 24 25 Page 106 hearing it: I haven't ahmdy and ask if there's anyone in the audience who would like to speak on this issue, for it or against it? Seeing none, I will close the public hearing. We have no reason for rebuttal. Anybody on the Commission? Mr. Roy.' COMMISSIONER ROY: Yes. Recently there have been discussions about improving the design standards in Denton in a macro sense. I'm wondering if staff could say is what they're reconunending us to approve tonight, is this a material, well, step back from the idea of moving forward with our design standards? Is it material or not? MS. CARPENTER: I tl-dnk that most of the design standards that the Council is looking at and has asked the Planning Cormnission to look at will be standards that will apply in the platting process rather than in the zoning process. I think we're talking about the donnexs and tt~e window trim and the garages and that kind of stuff. We am looking -- they are looking at some changes in, potential changes that might affect minimum square footage of units and minimum square footage of lot sizes. But there's been no particular recommendation in any single zone as to what those ought to be. So I can't measure really whether this is forward or backward. COMMISSIONER ROY: thank you. 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 108 PLANNING AND ZONING MINUTES OCTOBER 13, 2004 Page 105 - Page 108 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 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION WITH AN OVERLAY PERMITTING FOUR FOOT SIDE YARD SETBACKS FOR APPROXIMATELY 95.1 ACRES OF LAND LOCATED ON THE EAST SIDE OF BONNIE BRAE, APPROXIMATELY 750 FEET NORTH OF VINTAGE BOULEVARD IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABmlTY CLAUSE AND AN EFFECTIVE DATE. (Z04-0037) WHEREAS, Holigan Land Development has applied for a change in zoning for approximately 95.1 acres of land located on the east side of Bonnie Brae, approximately 750 feet north of Vintage Boulevard 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) zoning district classification and use designation to neighborhood Residential 3 (NR-3) zoning district classification and use designation with an overlay permitting four foot side yard setbacks; and WHEREAS, on October 13, 2004, the Planning and Zoning Commission recommended approval of the requested change in zoning; and WHEREAS, the City Council makes the following findings The change in zoning, including the overlay district, is consistent with the Comprehensive Plan; and The overly district will protect and enhance the Property and surrounding area which are distinct fi.om lands and structures outside of the overlay district and the immediate neighborhood; and The regulations imposed in the overlay district serve important and substantial public interests by preserving the integrity and of the neighborhood surrounding the overlay district while offering a different type; 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 Propertyis hereby changed from Neighborhood Residential 2 (NR-2) zoning district classification and use designation to Neighborhood Residential 3 (NR 3) zoning district classification and use designation with an overlay permitting four foot side yard setbacks. SECTION 3. district classification. The City's official zoning map is amended to show the change in zoning Page 1 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. Anyperson violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the __ day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 $ tlT',~)'M° E, 48.70 f~t tee R.R, ~ tM Mumft ",a-no w'~,wra~rne~ .r,,!Ngx1ral~)q ~ ~ New ~ ~,Mmtnm~t~ ' THIS PAGE INTENTIONALLY LEFT BLANK AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET November 16, 2004 Engineering Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execute a Real Estate Contract for the acquisition of approximately 88.56 acres by purchase, and approximately 34.89 acres by donation, for a Public Safety Training Facility, Park, and other future public amenities located at the southwest comer of Vintage Boulevard and Bonnie Brae Street, said tracts being a part of the James Edmondson Survey, Abstract No. 401, as described in the Deed to Denton-CJW Partners, Ltd., Recorded in Clerks Document No. 98-R0038601, Deed Records, Denton County Texas; authorizing the expenditure of funds, and declaring an effective date. BACKGROUND Staff conducted feasibility analysis of several possible sites for a new regional Public Safety Training Facility for the City of DeNon. This facility was originally envisioned to have five primary components: · Fire Station #7, to serve southwest Demon including the Robson Ranch area. · Fire Tower, consisting of a live-burn tower, Simtron equipped, designed to simulate a variety of physical conditions including residemial, motel/hotel, and industrial loading dock, retail, warehouse, and elevator shaft. · Fire Arms Range, consisting of two outdoor shooting ranges with 20 stations each, a live shoot house and special weapons range, a comrol booth, and support facilities for restrooms, and ammunitions storage. · Driving Track, designed for use by both Police and Fire, the driving track to simulate the predominate range of driving conditions experienced in the course of duty. An extension of the track, connecting the Fire Arms Range, will allow for combined drive and shoot training experiences. · Classroom Buildings, to support the needs of each Training Componem. Future phases to include the addition of a back-up Emergency Operations Cemer, and a Fitness Cemer with support facilities. After preseming several sites to City Council in June of 2004 to discuss value and consideration, staff was given direction to acquire as much property as possible at the southwest comer of Vintage Boulevard and Bonnie Brae Street. This property would serve for the majority of the training facility componems, and other future city amenities. Staff was also given direction to look at alternative locations for the firing range componem of the Public Safety Training Cemer as an option. The negotiations and feasibility analysis of this site are curremly in progress. Staff has been successful in negotiations with the owners of the property at the southwest comer of Vintage Boulevard and Bonnie Brae Street to acquire an 88.56-acre tract by purchase for the regional Public Safety Training Center and future city amenities, and 34.89-acre tract by donation for Park purposes. The donation property will meet a portion of the development requirements of the property owner under their Planned Development, The Vintage. Staff has come to terms with the property owner for the acquisition of these tracts for the purchase price of $2,020,000.®, which is a net effective price of $22,800.® per acre. Under the terms of the Real Estate Contract, the property owner will be responsible for the design and construction of the water and sewer improvements necessary to serve the property being acquired by the City, as well as the owners remaining development tracts. The City of Denton Utility Department will contribute $32,000.® as it's participation in the 24 inch water line, which represents the oversize cost, and will also reimburse the property owner up to $40,000.® for the cost incurred by the owner for easements acquired for the Roark Branch sanitary sewer line project that was to extend from Bonnie Brae to US 377. That project has been scheduled for a future date that will be determined as growth in the area develops. OPTIONS 1. Approve the Ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends the approval of the Ordinance PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 2004 FISCAL INFORMATION Purchase price of $2,020,000.00 plus ½ of the standard and customary closing costs, $32,000.® for the oversize participation in the construction of the 24 inch water line, and up to $40,000.® for reimbursement to the owner of easement acquisition costs for the Roark Branch sanitary sewer line. ATTACHMENTS Location Map Ordinance Real Estate Contract Prepared by: Pamela England Real Estate Specialist Respectfully submitted: Kelly Carpenter, Director Planning Department ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT FOR THE ACQUISITION OF APPROXIMATELY 88.56 AcREs BY PURCHASE, AND APPROXIMATELY 34.89 ACRES BY DONATION FOR A PUBLIC SAFETY TRAINING FACILITY, PARK, AND OTHER FUTURE PUBLIC AMENITIES LOCATED AT THE SOUTHWEST CORNER OF VINTAGE BOULEVARD AND BONNIE BRAE STREET, SAID TRACTS BEING A PART OF THE JAMES EDMONDSON SURVEY, ABSTRACT NO. 401, AS DESCRIBED IN THE DEED TO DENTON-CJW PARTNERS, LTD., RECORDED IN CLERKS DOCUMENT NO. 98- R0038601, DEED RECORDS, DENTON COUNTY TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS, AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas is desirous of entering into a Real Estate Contract with Denton-CJW Parmers, Ltd. to acquire approximately 88.56 acres and 34.89 acres of land as more particularly described in that certain Real Estate Contract attached hereto and made a part hereof by reference (the "Contract"); and WHEREAS, the City Council finds that the Contract serves valid municipal and pubhc purposes and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Contract is hereby approved. The City Manager, or his designee is authorized to enter into the Contract, to make the expenditures provided for therein, and to carry out the City's rights and duties under the Contract. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AN-D APPROVED this the day of ,2004. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: '~ Page 2 rI * REAL ESTATE CONTRACT THIS CONTRACT OF SALE ( the "Agreement") is made to be effective as the Effective Date as hereinafter defined by Denton-CJW Partners, Ltd, a Texas limited partnership (hereinafter referred to as "Seller") and City of Denton, Texas, a home rule municipality, of Denton, Denton County, Texas, (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein. PURCHASE, SALE, AND DONATION Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for all ihose certain tracts, lots or parcels of land containing approximately 88.56 acres of land (the "Purchased Property"), as illustrated and described in "Exhibit A" which is attached hereto and made a part hereof by reference, and Seller agrees to donate to Purchaser for park purposes that certain tract or parcel of land containing approximately 34.89 acres of land (the "Donated Propertf') also illustrated and described in "Exhibit A" with all rights and appurtenances pertaining to the said Purchased Property and Donated Property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way, together with any improvements, fixtures, and personal property situated on and attached to such Purchased Property and Donated Property, (all 'of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth. The subject Property is part of a development located in the City of Denton, Texas containing approximately 401.20 acres 'of land and consisting of Tracts A-M, as more particularly described and depicted on the Detail Plan of The Vintage Planned Development PD 139 attached hereto as "Exhibit B" and made a part hereof by reference (the "Development"). Mineral Reservation. The deeds to be delivered at closing shall provide for a reservation for Seller and Seller's successors and assigns of all oil, gas and other minerals in and under and that may be produced from the Property, except that Seller, its successors and assigns, shall not have the right to use the surface of the Property. II. PURCHASE PRICE Amount of Purchase Price. The total purchase price for the Purchased Property shall be the sum of Two Million Twenty Thousand Dollars and No Cents ($2,020,000.®) (the "Purchase Price"). The Donated Property shall be donated to Purchaser at closing as part of the park dedication development requirements for the Seller's Development. The Purchase Price will not be adjusted regardless of the final acreage defined in the final survey results. Payment of Purchase ·Price. The full mount of the Purchase Price shall be payable in hxa~ediately available fimds at the closing. Earnest Money and Independent Consideration. Within five business days after the date of this Agreement, Purchaser shall deliver to the Title Company (hereinafter defined), Purchaser's check in the amount of Twenty Thousand .and No/100 Dollars ($20,000.00) (the "Earnest Money"). Any and all cash depoSited with the Title Company as Earnest Money shall be deposited and held in an interest bearing account for the benefit of the party entitled thereto pursuant to this Agreement. All Earnest Money delivered hereunder, and all interest (if any) accrued thereon, shall hereinafter be sometimes collectively referred to as · the "Earnest Money". In the event that the Title Company does not receive timely deposit and ultimate collection of the Earnest Money, Seller as its sole and exclusive remedy for such failure may terminate this Agreement, and no party shall thereat~er have any .further obligation to the other hereunder PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consmianate the transactions comemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived in whole or in part by Purchaser at or prior to the closing. 1. Preliminary_ Title Report. Within ten (10) business days after the Effective Date, Seller, at Seller's sole cost and expense, shall cause the Title Company (hereinafter defined) to issue an owner's title policy commitment covering the Property (the "Comnfitment") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser shall give Seller.written notice on or before the expiration of ten (10) business days after Purchaser receives the Con-,nitment that the condition of title as set forth in the Commitment is or is not satisfactory. In the event Purchaser states the condition of title is not satisfactory, Seller may, but shall not be obligated to, at Seller's option, - undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller notifies Purchaser that Seller is unable or unwilling to eliminate or modify any unacceptable matters specified by Purchaser in Purchaser's written notice, Purchaser, at its option may elect to terminate this Agreement at any time up to closing (in which event this Agreement shall be null and void), in which case the Earnest Money will be refunded to Purchaser, grant Seller additional time to cure (but in no event shall the closing date be extended, unless agreed to in writing by Seller and Purchaser), or proceed to .closing. Should proceed to closing Purchaser shall be deemed to have approved all matters not eliminated or modified. 2. Survey. Within ten (10) business days after the Effective Date, Seller, at Seller's sole cost and expense, shall obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor acceptable to Purchaser. The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, raikoads, rivers, creeks, or other water courses,· fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall 2 contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. Following delivery of the Survey, the parties agree to amend this Agreement to substitute the metes and bounds description of the Property set forth on the Survey for the · current description set forth herein if the current description is different ~rom that set forth in the Survey. Purchaser will have ten (10) business days after receipt of the Survey to review and approve the survey. In the event the Survey is unacceptable, then Purchaser shall within the ten (10)- business day period, give Seller written notice of this fact. Seller shall, at Sellers option, promptly undertake to eliminate or modify the unacceptable portions of the Survey to the reasonable satisfaction of Purchaser. In the event Seller notifies Purchaser that Seller is unable or unwffiing to eliminate or modify any unacceptable matters specified by Purchaser in Purchaser's written'notice, Purchaser, at its option may elect to tem-dnate this Agreement at any time up to closing (in which event this Agreement shall be null and void), in which case the Earnest Money will be refunded to Purchaser, grant Seller additional fahe to cure (but in no event shall the closing date be extended, unless agreed to in writing by Seller and Purchaser), or proceed to closing Should Purchaser proceed to closing Purchaser shall be deemed to have approved all matters not eliminated or modified. 3. Seller's Compliance. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing. REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows to the current actual knowledge of Seller as of the dosing date, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date: 1. There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, trespassers or other parties. Except for the prior actions of Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment or suit, affecting title to the Property, or any part thereof, nor to the current actual knowledge of Seller is any such proceeding or assessment contemplated by any governmental authority. 3. Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereofi 4. To the best of the Seller's current actual knowledge, there are no toxic or hazardous wastes or materials on or within the Property. Such toxic or hazardous wastes or 3 materials include, but are not limited to hazardous materials or wastes 'as they are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as mended. Within ten days after the Effective Date Seller shall provide to Purchaser all enviromental and engineering reports, ff any, that it may have care custody and control of relating to the Property.. As used in this Agreement, the phrase "current actual knowledge" shall mean awareness of Michael A. Casey, without investigation or inquiry and shall not mean or include imputed knowledge, constructive knowledge, information that is contained in public records or inquiry knowledge. The foregoing representations and warranties shall not survive the closing. V~ CONDITION OF PROPERTY. A. As is. Except as is expressly provided for in this agreement, Purchaser is acquiring the property "as is" and with all faults and without warranties, representations, or guarantees of any kind, oral or written, expressed or implied, concerning the property including without limitation, 1) the value, condition, merchantability, habitability, marketability, profitability, suitability, or fitness for a particular use or purpose of the property; 2) the manner or quality of construction of the improvement or materials incorporated into the property; and 3) the manner of repair of the property. B. No Representations. Except as is expressly provided for in this Agreement, Purchaser hereby expressly acknowledges that Seller has not made and does not make any representations or warranties as to the physical condition of the property, or any other matter affecting or relating to the herein descn~oed property (other than the Warranty Deed to be delivered at closing and the representations and .warranties and warranties contained in this agreement which shall not survive closing) and that Purchaser has been afforded an adequate opportunity to inspect and evaluate the condition of the property. Purchaser hereby expressly acknowledges that no such representations or warranties have been made and purchaser agrees to accept the herein described property "as is" and "where is" without warranty, express or implied, as to the merchantability of the property or of its fimess for any particular use or purpose. No representations, claims, statements, advertising or promotional activities made or conducted by Seller or Seller's agents or representative shall, be binding upon Seller unless the same are expressly set forth in this Agreement or it's Addendum. C. No Reliance. Except as .expressly provided for in this Agreement, Purchaser has not relied upon any statements or representations made by Seller and/or any agent of Seller in it' s decision to acquire the property. D. Sole Reliance. Notwithstanding the representations and warranties of Seller contained in this Agreement, Purchaser further agrees that it will' be relying solely on it's inspections or inspections made by it;s .agents in making it's decision to acquire' the property pertaining to whether the property is physically suited for purchaser's intended uses. E. Condition Precedent. Purchaser acknowledges that but for the acceptance of the property "as is", Seller would not have executed this Agreement. F. Survival. The provisions of this "condition of property" paragraph shall survive closing. Vie ENTRY A. General Indemnity_. In connection with any entry upon the property by pUrchaser or Purchaser's representatives, to the fullest extent permitted by applicable law, Purchaser and Purchaser's representatives shall indemnify, protect, defend, and hold harmless Seller and Seller's. Partners, successors, assigns, heirs, legal representatives, employees, agents, and contractors (collectively, "Indemnities") for, from and against all liabilities, claims, damages, losses, liens, causes of action, suits,, fines, penalties, costs, charges, judgments, orders, enforcement actions of any kind, and any other costs and expenses in connection therewith (including, but not limited to, court costs, attorneys fees, and expenses and costs of investigation, of any nature, kind or description of any person or entity (collectively, the "Liabilities") directly or indirectly arising out of, caused by or resulting from (in whole or in part) (lthe viewing, inspecting and studies of the property conducted by Purchaser or Purchaser's representatives (the '*Work"), or any part thereof, or 2) violation of any applicable environmental, health, or safety law, rule, or regulation applicable to the property or the work, including property damage, personal injury to Purchaser and/or Purchaser's representatives and any .mechanic's or material men's liens arising out of or related to the .work. B. Confidentiality. Purchaser and Purchaser's Representatives shall use their best efforts to keep, and cause their respective employees, agents, contractors and subcontractors to keep confidential all information, materials, records, data, drawings, specifications, engineering and other documents related to the Work (the "Documents") and not disclose the existence of the Documents or their contents to any person or entity, including but not limited to any federal, state, or local governmental agency, without the express written consent of Seller. Notwithstanding the forgoing Purchaser as a municipality must comply with the Texas Public Information Act, Chapter 552 of the Texas Government Code (the "Act"). Any disclosure required by the Act shall not be deemed a violation of this provision. C. Liens. Purchaser and Purchaser's Representatives shall save and keep the Property free from all mechanics' and material men's liens, and all other liens or claims, legal or equitable, arising out of the Work hereunder. In the event any lien or claim is filed by anyone claiming by, through, or under Purchaser or Purchaser's Representatives, Purchaser and Purchaser's Represematives shall remove and discharge same within thirty (30) days of the filing thereof. D. Survival. The provisions of this Entry paragraph shall survive closing or any termination of this Agreement. PROVISIONS FOR WATER AND SANITARY SEWER FACILITHgS Seller is the owner and developer of the Development. The Property is depicted in Exh~tfit "B" as Tracts E, K, and L. Tracts A, B, C,. D, F, G, H, I, and J as depicted in Exhibit "B"are hereinafter collectively called the "Sellers Remaining Undeveloped Property". There is insufficient capacity in the City's water and sanitary sewer system to serve the needs created by the Seller's Remaining Undeveloped Property and the Property. Therefore, this Agreement is conditioned upon the Seller's obligations under this Article V, which shall survive closing. The Seller shall design and construct certain sanitary sewer and water facilities as provided for herein: The Public Water and Sewer Improvements. The Seller shall design and construct the' following public sanitary sewer and water facilities (the "Public Water and Sewer Improveme ts/: At the sole cost and expense of the Seller a sanitary sewer lit~ station (the "Lift Station") shall be designed and constructed by Seller of sufficient capacity to meet the needs of the Seller's Remaining Undeveloped Property and the Property in accordance with the City's standards for construction of such facilities (the "Capacity to Serve the Seller's Remaining Property and the Property"). The L~ Station will be located on the Property at the location shown on "Exhibit C" which is attached hereto and incorporated herein by reference. Should the City require that the Lift Station be oversized above the Capacity to Serve the Seller's Remaining Undeveloped Property and the Property (the "Oversize Cost") the Purchaser will be respons~le for the Oversize Cost. At the sole cost and expense of the Seller a sanitary sewer gravity line (the "Gravity Line") shall be designed and constructed by Seller of sufficient Capacity to Serve the Seller's Remaining Undeveloped Property and the Property. The Gravity Line will be located along Roark Branch on the Purchaser's Property at the location shown on "Exhibit C". Should the City require that the Gravity Line be oversized above the Capacity to Serve the Seller's Remaining Undeveloped Property and the Property the Purchaser will be respons~le for the Oversize Cost. 6 At the sole cost and expense of the Seller a sanitary sewer force main (the "Force Main") shall be designed and constructed by Seller of sufficient Capacity to Serve the Seller's Remaining Undeveloped Property and the Property. The Force Main will be located alOng Bonnie Brae extending from the Lif~ Station to the existing gravity.sewer line as shown on Exh~it C. Should the City require that the Force Main be oversized above the Capacity to Serve the Seller's Remaining Undeveloped Property and the ProPerty the Purchaser will be respons~le for the Ov~rsize Cost. Except for the Purchaser's Participation of $32,000.°°, a 24-inch water line (the "Water Line") shall be designed and constructed at the sole cost and expense of Seller in accordance with the City's standards for construction of such facilities. The Water Line will be located along Bonnie Brae extending 'from approximately US 377 to Vimage Blvd. as shown on "Exhibit 'D" attached, hereto and incorporated herein by reference. Should the City require that the Water Line be larger than the 24" the Purchaser will be responsible for the Oversize Cost. The Construction Project. As stated above the Seller is respons~le for the design and construction of the Public Water and Sewer Improvements (the "Construction Project") and the cost thereof (the "Construction Costs"). The Purchaser however will pay any Oversize Costs, if any, as .stipulated. herein. The Oversize Costs shall be paid to the Seller's contractor in progress payments within thirty (30) days of the Purchaser's receipt of an invoice for same as portions of the Construction Project are completed, minus 5% retainage, with the retainage and the balance being paid upon final completion and acceptance by the City of the Seller's Construction Project (''Final Acceptance"), which payment schedule shall be provided in the. Three-Way Agreement hereinat~er desm~oed. Separate invoices shall also be submitted to the Purchaser 'desm-bing non-oversize portions of the work that have been performed by the contractor on the Construction Project through the date of such invoice which shall be reviewed by the Purchaser within five (5) business days following receipt thereof. If the representatives of the Purchaser have any objections to the progress payment being requested in such invoice on the Construction Project, they shall communicate such objections, in writing, to the Seller within such five (5) business day period, and the parties shall seek to resolve any questions or issues relative to such invoice promptly. As to any invoice submitted by the Seller (or its contractor) and for which no comment has been received from the Purchaser within five (5) business days following submission thereof, such invoice shall be deemed to be approved by the Purchaser in all respects. If feasible and if requested by Seller, items in any invoice to which the Purchaser has raised questions shall be segregated from all remaining items in such invoice, .and the approved items shall be submitted for payment out of the escrow hereinafter descn'bed. A representative of the Purchaser shall deliver all approved invoices to the Project Engineer, who is hereby authorized to submit such approved invoices for payment in accordance with the Escrow Agreement hereinatSer defined. The Oversize Costs shall bear no interest unless the Purchaser has not paid Oversize Costs when due, in which case it shall bear interest from that date until paid at the rate of 6% per annum The Purchaser has available budgeted funds sufficient to pay all of the Oversize Costs. The Construction Costs and Oversize Costs include design and engineering fees for the Public Water and Sewer Improvements. The Construction Project shall be completed within 12 months after the Effective Date of this Agreement. Design of Public Water and Sewer,. Improvements/Approval of Plans and Specifications. The Public Water and Sewer Improvements shall be designed and constructed in accordance with the City's standard specifications for public works construction, which are incorporated herein by reference. Prior to awarding the construction contract for the Construction Project the Seller shall submit to the Purchaser a complete set of construction plans and specifications for the Construction Project for review and approval by the Purchaser. Said Plans and Specifications shall be completed and approved by the Purchaser 30 days prior to closing. The construction contract will not be awarded until the Purchaser has given its written approval. The Purchaser will not unreasonably "withhold or delay its consent or approvals to the plans and specifications or the construction contract. Construction for the Construction Project shall not commence until the Seller and its contractor enter into the City's standard three-way public works contract between the City and the Seller, and its contractor (the "Three-Way Agreement") and a performance bond, payment bond and required insurance certificates are delivered 'to the City in the substance and form required by the City. Construction Schedule/Water and Sewer Cost Estimate. A construction schedule and cost estimate for the construction of the Construction project shall be submitted and approved by the Purchaser 30 days prior to the closing.date herein. Escrow Agr.. cement. To ensure completion of the Construction' Project, at the closing of this Agreement, such portion of the cash Purchase Price deemed adequate to ensure completion of the Construction Project and Purchaser's Participation as provided 'in Article VII Section 'D herein will be deposited in Escrow with Alamo Title Insurance Company, Arlington, Texas (the "Escrow Agent"), which Escrow shall thereafter be disbursed in accordance with an agreement (the "Escrow Agreement"), which shall be in a form approved by the City Attorney, or his designee. The Escrow Agreement shall include the following provisions: If Seller breaches the Escrow Agreement and fails to cure the breach within fii~een (15) days after written notice of such breach, then the Purchaser, or its designee, shall have the right to use the remaining funds in escrow to complete construction of Construction Project. Seller or its agent shall provide invoices to the Escrow Agent, which has been approved (or deemed approved) by the Purchaser relative to the portions of the Construction Project that have been completed, and the Escrow Agent shall be authorized to pay each such invoice h-~nediately out of the funds on deposit in such escrow. 8 Co Seller shall pay all costs for the Construction Project specified herein, except for the $32,000..oo City participation, and the Oversize Costs, notwithstanding that the escrow might be .depleted prior to the completion of the Construction Project. Additionally, if the Purchaser cures a breach of the Escrow Agreement and ffthere are' not sufficient funds in escrow to complete the construction of Construction Project, then Seller shall pay to the Purchaser, within ten (10) days atter receipt of demand for payment, the difference between the cost to complete construction of the Construction Project and the remaining' funds in escrow. d° When the COnstruction Project is completed and the Purchaser has issued Final Acceptance, if there are still funds in such escrow, the Escrow Agreement shall. provide that all such funds shall be hiunediately released to the Seller and the Escrow Agreement shall terminate. Diligent pursuit of Construction of Water and Sewer Facilities. The Seller shall diligently pursue the design and construction of the Construction Project and complete it within 12 months atter the Effective Date herein. Prior Easement Acquisition. This 'Agreement makes the need for construction of a planned Roark Branch sanitary sewer line that was to extend from Bonnie Brae to US 377 that would serve the Development unnecessary at this time. The Purchaser shall reimburse the Seller up to '$40,000.00 for the cost incurred by Seller for the acquisition cost of easements for that sewer line. Seller shall provide sufficient evidence of exact cost of the acquisition of easements for this sewer line, and submit it to the Purchaser for reimbursement. Said reimbursement is in addition to the Purchase Price defined herein and to be included in the settlement costs of this transaction. Engineering services for the Roark Branch Sanitary Sewer project are not a part of this agreement and shall be administered separately by the City of Denton Utility department. Notices. Any notice, demand or other communication reqUired or permitted to be delivered hereunder (other than invoices to be delivered as hereinafter descn'bed) shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to each respective party, or sent via facsknile to the fax number set forth for each party, as follows: If to the City: With a copy to: The City of Denton, Texas 215 E. McKinney Denton, Texas 76201 Attention: Mr. Howard Martin, Assistant City Manager Fax No.: (940) 349-8596 Edwin Snyder, Esq. Assistant City Attorney City of Denton, Texas 215 E. McKinney Denton, Texas 76201 Fax No.: (940) 382-8596 If to the Seller: With copies to: Denton CJW Partners Ltd. C/O Michael A. Casey 1170 Corporate Drive West Suite #101 Arlington, TX 76006-6813 Fax No.: (432) 686-1501 Dan A. White Shannon, Gracey, Ratliff & Miller, LLP 1000 Ballpark Way, Suite 300 Arlington,' Texas Fax No. (817) 795-4864 All invoices or notices or other communications applicable to the invoices specified in Article V herein shall be .delivered to the Purchaser and the Seller at the address set forth for each party as follows: If to the Ci _ty:. Mr. Greg Btackstone City of Denton Inspection Group 601 East Hickory Street Suite B Denton, Texas 76201 Fax No.: (940) 34928951 If to the Seller: With copies to: Denton CJW Partners Ltd. C/O Michael A. Casey 1170 Corporate Drive West Suite #101 Arlington, TX 76006-6813 Any of the parties hereto may change their respective notice addresses for all communications and invoices by a notice delivered in accordance with the terms and conditions of this Article V, Section 8 herein. CLOSING The clOsing shall, be held at the office of Alamo Title Insurance Company, Arlington, Texas on or before January 3 t, 2004, or at such title company, time, date, and place as Seller and Purchaser may mutually agree upon (which date is herein referred to as the "closing date"). 10 com}moNs PRECEDENT. As conditions precedent to the obligations of Seller and/or Purchaser to close, the following shall occur contemporaneously with closing: Seller and Purchaser shall have mutually agreed .to the plans and specifications for the Construction Project, the construction contracts relating to the Construction Project, the Construction Costs, the Oversize Costs, the Oversize Agreement, the Three-Way Agreement (including performance and payment bonds), the Construction Schedule/Construction Project Cost Estimate, the Escrow Agreement and all other substantive and ancillary documents .and agreement contemplated under this Agreement. Purchaser shall furnish, to Seller all pertinent information that Seller may need relating to the Property and Purchaser's intended uses thereof, in order to enable Seller to cause the Construction Project to be designed and constructed. Purchaser and Seller agree that the terms of the City's standard Three-Way Agreement that includes a Development Contract, Performance Bond, and Payment Bond will be executed by Seller at closing, and shall govern the responsibilities, obligations, and liabilities of all parties to this transaction with respect to the Construction Project. The Three-Way Agreement is attached and made a pan hereof as "Exhibit E". This disclaimer shall survive closing. Seller has entered into that certain Oil and Gas Lease effective March 15, 2002 with Lynx Oil Co. Inc. that affects the Property (the "Oil and Gas Lease"). Seller shall cause the Oil and Gas Lease to be amended prior to closing to prohibit lessee's use of the surface of the Property. Access to any existing gas well sites on Seller's remaining property as well as any future gas' well sites developed on Sellers remaining property shall be to and from the Seller's Remaining Property. IX. CLOSING REQUIREMENTS 1. Seller's Requirements. At the closing Seller shall: A. Deliver to the Purchaser a duly executed and acknowledged special warranty deed for the Purchased Property and a duly executed and acknowledged donation special warranty deed for the Donation Property for park purposes, conveying good and infeas~le title in fee simple to all of the Property, free and clear of any and all liens, leases, encumbrances, conditions, assessments, and restrictions, except for the following: 1. General real estate taxes for the year of closing and subsequent years not yet due and payable; and 2. Any exceptions approved, or deemed approved by Purchaser pursuant to Purchaser's Obligations (Article III, 11 above) hereo~ and · 3. Any exceptions approved by Purchaser in writing. B. Deliver to Purchaser a Texas owner's Policy of Title Insurance at Seller's sole expense, issued by Alamo Title, Arlington, Texas, (the "Title Company"), or such title company as Seller and Purchaser may mutually agree upon, in Purchaser's .favor in the full amount of the purchase price, insuring fee simple title for the Purchaser to the Property subject only to those title exceptions listed in Article VII herein, such other exceptions as may be approved or deemed approved by Purchaser, and the standard printed exceptions contained in the usual form of. Texas Owner's Policy of Title' InsuranCe, provided, howeVer: 1. The boundary and survey exceptions shall be mended, except for "shortages in area" if required by Purchaser and if so required, the costs associated with it shall be borne by Purchaser; 2. The exception as to restrictive covenants shall be endorsed '"None of Record"; 3. The exception for taxes shall be limited to the year of dosing and shall be endorsed "Not Yet Due and Payable"; and 4. The exception as to liens encumbering the Property shall be endorsed "None of Record". C. Deliver to Purchaser possession of the Property. Escrow Agreement. Seller shall pay for all of the design, construction costs, and offsite easements requked for the Construction Project described in Article V herein, except for the fixed sum of Thirty Two Thousand Dollars and No Cents '($32,000.oo) which is the "Purchaser's Participation". To ensure completion of the Seller's Construction Project as outlined in Article V herein, at closing the Seller shall deposit the full amount of the estimated construction costs (other than the Purchaser's Share for over. sizing if applicable) from the proceeds of this transaction in escrow with the "Escrow Agent". Purchaser will provide funds for Purchaser's Participation at dosing which are in addition to the purchase price of the property described in Article II herein. Purchaser's Participation will be paid at closing in immediately available funds and be included in the escrow account deposit. Which escrow shall thereafter be disbursed in accordance with an agreement (the "Escrow Agreement"), which shall be in a form approved by the City Attorney, or his designee. The Escrow Agreement shall include the provisions as outlined in Article V herein. The provisions of this paragraph and the Escrow Agreement shall survive closing. 2. Purchaser's Requirements. Purchaser shall pay the Purchase Price, with the Earnest Money being applied thereto, Purchaser's Participation, and reimbursement for the Roark Branch easement(s) approved by Purchaser, at closing in i,~,,~¢diately available funds. 3. Closing Costs. Taxes will be prorated as of the date of Closing in accordance with Section 26.11 of the Texas Tax Code. In this regard, the Title Company will be responsable for paying directly to the applicable taxing units the Seller's tax liability for the year of dosing out of the Purchase Price. All other customary and standard costs and expenses of closing in consummating the sale and purchase of the prOperty not specifically allocated herein shall be paid equally by the Purchaser and Seller herein, except each party wffi be respons~le for its own attorney fees. At closing Seller and Purchaser shall cooperate in segregating the Property from the tax parcels which also include portions of Seller's Remaining Undeveloped Property. 4. Purchaser hereby represents and warrants that the Donated Property will be used for no purposes other than "public purposes", as required by Section 170(c)(1) of the Internal Revenue Code of 1986, as mended (the "Code"). Seller and Purchaser hereby agree to execute, acknowledge and deliver such additional documents, and take such further actions, as are reasonably necessary in order to effectuate the intentions and agreements expressed in this Agreement, including, but not limited to, an IRS Form 8283 '2qoncash Charitable Contributions" and a contemporaneous written acknowledgment of the contn~bufion of the Donated Property, as required by Section 170(0(8) of the Code and the regulations promulgated there under. REAL ESTATE COMMISSION Seller and Purchaser represent and warrant to each other that neither has retained a broker for this transaction and that there are no broker or real estate fees due as a result of the consummation of this Agreement. XI. BREACH BY SELLER If Seller fails to fully and timely perform any of its obligations under this Agreement or fails to consummate the sale and donation of the Property for any reason, except Purchaser's default, Purchaser may enforce specific performance of this Agreement or a retired of the Earnest Money, as Purchaser's sole remedies. 13 BREACH BY PURCHASER In the event Buyer fa~ to consummate the purchase of the Property, if Seller is not in' default under this Comract, Seller will have the fight to enforce specific performance of this Agreement or retain the Earnest Money, as liquidated damages, as Seller's sole remedies. XIII. MISCELLANEOUS 1. Assignment of Agreement. Purchaser may not assign this Agreement without the express written consent of Seller. 2. Survival of Covenants. Except as otherwise provided herein, any of the representations, warranties, covenants, and agreements of the parties, as well as any fights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. 3. Purchaser will be respons~le for the sole cost and expense of any perimeter paving required by the City of Denton Development Code for the development of Purchasers Property. 4. Law and Venue. This Agreement shall be construed under and in accordance with the .laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton .County, Texas. Exclusive venue for the enforcement or interpretation of this Agreement shall be a court of competent jurisdiction in Denton County, Texas. 5. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement. 6. Legal Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 7. Prior Agreements Superseded: This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the part/es respecting the within subject matter, except for any agreements in regard to the Roark Branch Sewer Line. 8. Time of Essence. Time is of the essence in this Agreement. 14 9. Gender. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requkes otherwise. 10. Memorandum of Contract. Upon request of either party, both parties shall promptly execute a memorandum of this Agreement suitable'for filing of record. .. 11. Compliance. In accordance with the requirements of the Texas Real Estate License Act, 'Purchaser is hereby advised that it should be fia'nished with or obtains a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection. 12. Effective Date. The term "Effective Date" means the latter of the dates on which this Agreement is signed by either Seller or Purchaser, as indicated by their signature below. If the last party to execute this Agreement fails to complete the date of execution below that party's signature, the date the Title Company acknowledges receipt of a copy of this fully executed contract is the Effective Date. IN WITNESS WHEREOF, Seller and Purchaser have executed this contract as follows: SELLER: Denton CJW Partners Ltd. ~3y' Name Michael A./Casey Title Manager, Denton-CJW Management, L. L. C. CITY OF DENTON, TEXAS By: Michael A. Conduff City Manager 215 E. McKirmey Denton, Texas 76201 · Date: 15 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM: ffERBERT L. PROUTY, CITY ATTORNEY TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT The Title Company acknowledges receipt of the fully executed Contract on __ __., 20047 day of i TITLE COMPANY: Name: Alamo Title Company Arlington, Texas By: Printed Name: Title: 16 \ \ EXHIBIT A 88.56 +l- ACRES PURCHASE PROPERTY WNTA(~E gO 34.89 +/- ACRES DONATED PROPER'TY EXHIBIT C EXHIBIT E Revised November 25*, 2003 1. 10. 11, DEVELOPMENT CONTRACT/BOND .... INSTRUCTIONS All construction of public improvements (i.e., streets, sidewalk, utilities, drainage) requires development contracts to be executed prior to construction of those improvements and/or filing a plat. A performance bond is required in all cases, except when the'total amount' of the public .improvements is. less-than $15~000: W"nen improvements will be less than $15,000, an escrow agreement may be ' substituted for the performance bond. When public improvements will exceed $25,000, a payment bond is also required. 'An affidavit of payment is required on all public improvement construction projects that are not covered by a Payment Bond prior to completion and acceptance of the improvements. A .copy °f'the contractors bid or an engineer's estimate must be attached to the bond or escrow to document that the bond or escrow is for a sufficient amount. Co-obligee bonds are not acceptable. The bond forms provided bind the principal and the surety to the City of Denton only. Do not attach co-0bligee riders. Please date the documents prior to submitting the documents to the City. Bonds or escrows are to be dated on the same day or later than the development contract. Also, in the case of Performance or Payment Bonds, the Power of Attorney is to be dated the same day as' the bonds. The simplest thing ~o do is to use the same date in all blanks. ~ Bonds are to be issued by a treasury listed security licensed to do business in the State of Texas. The amount of the bonds must be within the underwriting limits stated in the treasury list for that security. Three-Way development contracts apply when the owner and contractor are separate entities.' A Two- Way development contract is used When the owner is also the general contractor. The development contract, and bond or escrow must 'be filled out in triplicate. All copies of each document must have original signatures. You will want to copy the documents prior to filling them out. Do not make copies after they are filled out and signed. Submit a copy of the contractor's insurance certificate naming the City of Denton as Certificate Holder and listing the City of Denton as an additional insured. The wording in the cancellation section of the certificate must state that said policy shall not be cancelled~ nonzrenewed~ or materially changed without 30 days advance written notice being eiven to the Owner~ except when the polic~v is being cancelled for non-payment of premium~ in which case 10 days advance written notice,is. ' required, "Endea~'oring" to mail written notice is not acceptable. The staten~ent that "failure to mail such noti'ce shall pose no obligation or liability upon the company, its agents, or representative" is not'to be included on the certificate. Coverage requirements are listed on the last page of this packet. If _insurance documents are sent separately~ they must have ,the TRAKIT ID on the certificat~ Submit filled out documents {~nd four sets of construction nlans) to Kevin Roberts, Development Review Engineer, in the Engineering Department ortho City of Denton. The address is 221 'lq. Elm St., Denton, TX 76201, phone (940) 349-8350. Once the documents have been processed through the City of Denton Legal Department, .a pre-construction meeting may be scheduled. EtYecti~ Devemb~ I~', 2003 PRO~ECT NO. CONTRACT TYPE § COUNTY OF DENTON § DEVELOPMEIYr CONTRACT Hereinafter referred to as "Owner", whose business address is is the owner of real property located in the corporate' limits of the City of Denton, or its extraterritorial jurisdiction; and WI~REAS, Owner wishes to develop the property and such development must be performed in accordance with the applicable ordinances of the City of Denton, herea~er referred to as "City"; and WHEREAS, as a'condition to the beginning of construction.of said development, a development con~ract in accordance with Section 212.071 of the Local Government Code is required to ensure that ali streets, water and' sewer lines, drainage facilities and other improvements which are to be dedicated to the public, hereafter referred to as "Improvements", are constr~cted in accordance ~vith the City's ~pecifiCations, standards and ordinances; and [select applicable provision as follows] WHEREAS, the Owner elects to construct the Improvements without contracting with another party as prime contractor, in which case the provisions of this contract which refer to "Owner" or "Contractor" shall mean the Owner as named above; or Page 1 of 8 DEVELOPMENT CO.N'I'RAcr WHEREAS,' the Owner elects to make such improvements hereinatter set forth by contracting with whose' business address is hereafter referred to as "ConlractoF', and · wHEREAs, Owner and Contractor recognize that the City has an interest in ensuring that the il~'provements subject to this agreement, which will, upon'completion and acceptance by the City,' become public property, are properly constructed in accordance with the City's specifications and that payment is made therefor, ssv,-r I AS to the improvements to be dedicated to the public, as specified in Exhibit A, attached ) hereto and incorporated by reference) to be installed and constructed at the Owner, Contractor and City, in consideration of their mutual promises and covenants contained herein, agree as follows: 1. Covenants of Contractor.. (a) Contractor agrees as follows: Specifications. ,, To construct and install the Improvements in accordance with the procedures, specifications and standards contained in Division II and III of the City's Standard Specific.%~s for Public Works Construction, North Central Texas~ as amended, and all addendum's thereto, and all other regulatiOns, ordinances or specifications applicable to such Improvements, such specifications, standards, regulations and ordinances Pa~e :2 of 8 Com mcr being expressly incorporated herein by reference aacl being made a part of the. agreement as though written herein. Au~orlc~' of City End, in--r,. Inspeetions~ Tests and Orders Owner and Contractors Warranty.....That all work on the Improvements shall be performed in a good and workmanlike manner and to the satisfaction of the City Engineer or his representative. The City Engineer shall decide all questions, which arise as to the quality and acceptability of materials furnished, work performed, and the interpretation of specifications. Guarantee for a period of two years from the date of final acceptance all work as called for in the specification and contract documents' to be free from defects in materials and workmanship. Owner, contractor and thek surety as the case may be shall remedy any such'defects in materials and workmanship and pay for any damage to the work or to other work guarantee for a period of two years from the date of.final acceptance all work as called for in the ' specification and contract documents to be free fi-om.defects in materials and/or facilities which shalt appear within two yearn from the date' of final completion and acceptance by the City. The Contractor shall furnish the City Engineer or his representative with every reasonable facility for ascemining whether or not the work peffonr~ed was in accordance with the speCifications applicable thereto. Any work done or materials used without suitable inspection by the City may be ordered removed and replaced at Contractor's expense. The Owner, the Contractor and their surety on the pedormanee bond shall and do hereby warrant and Page 3 of g DEVELOPMENTCONTRACT (c) guarantee for a period of two .years from the date of final acceptance all work as called for in the specification 'and contract dOCuments to be free from defects in materials' and workmanship. Owner, Contractor and their surety as the case may be shall remedy any such' defects In materials and workraansbip and pay for any damage to the work or to other work or facilities, which shall appear within two years from the date'of final aceeptauce by the City. The City Engineer or his designee shall perform periodic inzPections of the work and shall perform afmal inspection prior to the work .being turned over to the City and an inspection 30 days prior to the exPkation of two years fi-om the date of final completion and acceptance of the work by the City. Upon failure of the Contractor to allow for inspection, to test materials 'furnished, to satisfactorily repair, remove or replace, if so directed, rejected, unauthorized or condemned work or materials, or to follow any other requeSt or order of the City Engineer or his representative, the City Engineer shall notify the Owner ofsuch failure and may suspend inspections orsuch work until such fa/lure is remedied. If such failure is not remedied to the satisfaction of the City Engineer, the City shall have no obligation under this agreement to approve or accept the improvements. insurance_ To provide for insurance in accordance with the insurance requirements applieable to contractors as p~vided for in Item 1.26 of Division I ofthe Standard S ecl cations forPu lie Works Construction North Central Texas~ as amended, the provisions of which are expressly incorporated herein Page 4 orS' DEVELOPMEN~ coNTRACT · by reference; provided, however, for purpose of this Provision only, "Owner", as used therein, shall mean the City of Denton. Means and Metho of Construction- ' That the means and methods of constmcti°n shall be Such as Contractor may choose; subject, however, to the City's right to reject any Improvements for which the means or method of construction does not, in the judgment of the City Engineer, assure that the Improvements were constructed in accordance with City . specifications.' _Books and Records_.. All of the Owner's and the Contractor's books and other records related to the project shall be available for inspection by the municipality. Owner and Contractor. Owner and Contractor mutually agree as follows: (a) Performance Bonds. That if building permits are to be issued for the ' · development prior to comPleti°n and acceptance of all improvements that are to be dedicated to the public, the following security requirements shall apply: or Developer shall provide a performance bond in an mount (i) The Owner the amount necessary to complete the improvements, as not less than . ..... ,, ~.~ ~.~,mitted ~uaranteeing the full determined by the City tmgmeer, snm, and faithful completion of the Impro~'ements meeting the specifications of the City, shall be in favor of the City, and shall be executed by a surety company authorized to do business in the State of Texas in accordance with Chapter 2253 of the Texas Government Code. The Owner and his Contractor shall assign any and all fights in the bond to the City at thc time the improvements are transferred to and accepted by the City. (ii) If the cost of completing the improvements at the time building permits are issued is an mount of $15,000 or less, as determined by the .City Engineer, cash money in the mount necessary to complete Page 5 of 8 DEVELOPMENT CONTRACT (%) the improxtements, as determined by the City Engineer, may be deposited with a bank'or escrow agent pursuant to an escrow agreement ensuring completion of the. improvements without . exception, the City's escrow agreement form shall be used and the escww agreement shall ~eix-~n in effect for 2 years from the date of final completion and acceptance of the work by the City. Retainage: Final Pavements' [This provision (c) applies only where the Owner and Contractor are not the same party.] That as security for the faithful completion of the Improvements, Contractor and Owner agrees that the Owner shall retain ten (10) percent of the total dollar amoUnt of the contract price until after final approval or acceptance of the improvements bY the City. The Owner shall therea~er pay the Conlraetor the reta'mage, only after Contractor has furnished to the Owner satisfactory evidence including Owners affidavit that all indebtedness has been paid, that ail indebtedness connected with the work and all sums of money due for labor, materials, apparatus, fixtures or machinery furnished for and used in the performance of the work have been paicl or otherwise satisfied. Encumbrances. That upon completion and approval or acceptance of the ImProvements of the City, the improvements shall become the propefff of the City free and clear of all liens, claims, charges or encumbrances of any kind. If, a~er acceptance of the Improvements, any claim, lien, charge or encumbrance is maclel or found to exist~ agaLnst the Improvements, or land dedicated to the .City, to which they are affaxed, the Owner and Contractor shall upon notice by the City promptly cause such claim lien, charge or encumbrance to be satisfied and released or promptly post a bond with the Page 6 of 8 DEVELOPMENT cONTRACT City in the amount of such c,' ',am, lien, chaSe or encumbrance, in favor of the city, to ensure payment.of ~ch claim, lien, charge or encumbrance.. indemnification_. The Owner shall and hereby does indemnify, defend and save harmless, the'city, its officers, agents and employees fi-om all'suits, actions or claims of any character, name and description brought for or on account of any injuries.or damages received as sustained by any person,. persons or property on account of the operations of the Contractor, Ids agents, employees or subcontractors; or on account of any negligent act of fault of the Contractor, his agents, employees or subeontr~tors in construction ofthe improvements;and shall pay any judgment, with costs, which may be. obtained against the City growing out of such injury or damage. (e) A~:reement Controlling. That the provision of this agreement shall c°ntrol over any conflicting provision of any contract between the Owner and Contractor.as to the construction oft_he Improvements. _Covenants of Citw of Denton; That, upon proper completion0f the Improvements in accordance with this agreement, the City agrees to accept the Improvements. Venue and Governing Law. The parties herein agree that this contract shall be enforceable in Denton County, Texas, and if legal action is necessarY in connection therewith, exclusive venue shall lie in Denton County, Texas. The terms 'and provisions of this contract shall be construed ia accordance v~5~h the laws and court decisions of the State of Texas. Page 7 of 8 'DEVELOPMENT CONTRACT ' Successor and Assigns. benefit of the parties hereto This contract shall be binding upon and inure to the their respective successors and assigns. Executed in triplicate this, dayof ~,20 OWNER. BY: TITLE: ADDRESS: CONTRACTOR BY:. TITLE: ADDRESS: CITY OF DENTON, TEXAS BY: CITY MANAGEK ATTEST: JENNIFER WALTERS, C[f-'f SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 8 of 8 Effective E)~cember i~,2003 PROIECT NO. CONTaACrE THE STATE OF TEXAS COUNTY OF DENTON That pERFORMANCE BOND · KNOW ALL MEN BY THESE PRESENTS: of County, Texas, hereinafter called Principal and and authorized to do .a Corporation organized under the laws of the State of · business in the State of Texas, hereinafter called "Surety", are held and firmly bound unto the City of Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City" in the penal sum of ($ ) dollars, lawful money of the United States, for the payment ofwkich sum well and truly to be made we bind ourselves, our heirs, executors, administrators, and successors, jointlyand severally, and fmuly by these presents: THE Condition of this Obligation is such that: WHEREAS, the Principal entered into a certain contract with Owner, dated the day of ,20 ~ in the proper performance of which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part hereof, for the construction of: Page 1 of 3 PERFORMANCE BOND NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed and fulfilled all Of the undertakings, covenantS, terms, conditions; and agreements of said Contract in accordance with the Plans, Specifications, and Contract Documents during the original term thereof,. and any extension thereof which may be granted, with or without notice to the surety, and during the life of any guaranty required under the Contract, which is' incorporated, as if written word for word herein, and shall also well and truly cause to be performed and fulfilled all the covenants, terms and conditi°ns and agreementS of any and all authorized modifications of said Contract that may hereafter be made including, without limitation, to remedy .and pay for any defects in material and workmanship or damage to other work or facilities which shall appear within ~o_..q.y.__~_l}om the date ~ of fmai completion notice of Which modifications to the surety being hereby waived; then this obli~tion shall be void; otherwise to remain in full force and effect.. PROVIDED, further, that if any legal action be filed on this bond, venue shall lie in Denton AND~ that said Surety, for value received, hereby stipulates and agrees that no change, extension of time, .alteration or addition to the terms, of the contract, or to the work performed thereUnder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in any wise affect its obligation on this bond, and it does hereby waiv~ notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed thereunder. Page 2 of 3 PERFORMANCE BOND ~N ~TNESS WSEREOF, this msU~ment !s executed m replicate, each one ofwNch shall ~¢ a~m~ ~. o~, ~ ~ .. a~y o~ ~ :o .... pRINCIPAL SURETY BY: 'BY: ATTORNEY-IN-FACT ATTEST: SECRETARY NOTE: POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF BOND MUST NOT BE PRIORTO DATE OF CONTRACT DATE OF POWER OF ATTORNEY. CERTIFICATION MUST NOT BE PRIOR TO. DATE OF CONTRACI'ORBOND- Page 3 of 3 EtTcc~vc*Dccc'mb~ 1', 2003 . 'PROJECT NO. CONTRACT TYPE PAYMENT BOND THE STATE' OF TEXAS' § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS: That of the City of County of and the State of as principal, and authorized under the laws .of the State of Texas to act as surety on bonds for principals, are held' and firmly bound unto The City of Denton, OWNER, in the penal sum of dollars ($ ) for the payment whereof, the sa[d PrinCipal and Surety bind themselves and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, dated the . day of 20 _. to which contract is hereby referred to and made a part hereof as fully and tO the same extent as if copied at length herein. NOW, THEREFORE, TILE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay all claimants supplying labor and material to him or a subcontractor PAYMENT BOND in the prosecution of the work provided.for in said contract, then this obligation shall be void, otherwise to remain in full force and effect} PROVIDED, HOWEVER, that .this bond is executed pursuant to the provisions of the Texas Government Code, Chapter 2253 (Vernon, as currently amended), and all liabilities on this bond shall be determined in accordance with said provisions to the same extent as if they were copied at length herein. Surety, for value received, stipulates and agrees that no change,, extension of time, alteration or addition to the terms of the contract, or to the work performed thereunder,, or the plans, specifications, .or drawings accompanying the same~ shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms, of the contract, or to the work to be performed thereunder. } Page 2 of 3 BoND iN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of ·20- : PRINCIPAL' SURETY · BY: TITLE: ADDILESS: BY: TITLE: 'ADDRESS: (SEAl.) The name and address of the Resident Agent of Surety is: Page 3 of 3 Efte~ D~en'~ 1',2003 pKOJECT NO. THE STATE OF .TEXAS ESCROW AGREEMENT IN LIEU OF PERFORMANCE BOND Development Contract (Improvements of $15,000 or Less) CITY OF DENTON § WHEREAS, ..,. hereafter referred to as "Owner", has undertaken to develop property withinthe City of Denton, Texas, or it's extraterritorial jurisdiction; and WHEREAS, Owner has, pursuant to' the ordinances of the City of Denton, Texas,. hereafter referred to as "City", executed a developmeni contract.to insure that any and all streets, water and sewer lines, drainage' facilities or other improvements which are to be dedicated to the public, hereafter referred to as "Improvements'.', are constructed and completed in accordance with the specifications, standards and ordinances of the City; and WHEREAS, Owner wishes to receive building permits for said pioperty prior to the completion and approval or acceptance of the Improvements by the City; and WHEREAS, in order to receive such building permits Owner may, where the cost of the Improvements is $15,000 or less, instead of posting a performance bond, escrow cash'money with a bank as escrow agent in an amount not less than the mount necessary to insure completion of said ImproVements, and to fully protect the City against defects in materials and workmanship; Aa .M n, rrm mu p . OP.M Ce NOW, THEREFORE, OWNER, city and , hereafter called "Escrow Agent", agree as follows: ' 1. Amount. Owner, as a condition to receiving building permits for property located at shall deposit the sum of, ($ , ), in cash money, with Escrow Agent, said sum being in an amount, as determined by the City, necessary to insure completion of all improvements which are to be dedicated to the public, and to fully protect the City against defects in materials and workmanship; said improvements being more particularly desoribed in that certain development contract dated the day of ., 20 j between ~ the City, Owner and Owner's Contractor, to which reference is made herein. 2. Notice of Denosit. No building permits shall be issued by City for the property herein described until Escrow Agent notifies City, in writing, that cash money, in the amoUnt specified herein, has been deposited in an escrow account with Escrow Agent. 3. Release of Funds~.. Escrow Agent shall not release any or all of the escrowed . funds until the City Engineer authorizes the Escrow Agent, in writing, to release such funds as provided for herein as follows: (a) the City Engineer shall authorize the release of all the escrowed funds when'all improvements are complefed and approved in accordance with provisions of the development contract and after 2 years has expired from the date of final completion and acceptance of the work by the City and no defects in materials Page 2 of 5 ESCROW 'AGREEMENT IN LIEU OF PERFORMANCE BOND and workmanship have been discovered; the idetermination.of which shall be. made by the City Engineer whose jtrdgment ishall be binding On all parties hereto. The City Engineer shall inform the escrow ~gent, in Writing, with a copy to the owner, that the owner is in default ·under hisi Development Contract with the City by either failing to complete the improvements in accordance with the terms and conditions of the Development Contract or'that the City Engineer has determined that'there are defects in. materials and worknaam, s. hip in the improvements. · WhereuPon, the escrow agent will immediately, without further demand, claim, or notice, release to the city through the City Engineer, the amount necessary, as ' speoified by the City ·Engineer, to remedy the default.· 3. Notices. Any notice tO be sent, or required tO be sent or given under this agreement shall be sent to the address of the parties hereto, as follov~s: CITY: Engineering Administrator . City of Denton ~ City Hall East 601 E. Hickory, Suite B Denton, TX 76205 OV~NER: ESCROW AGENT: Page 3 of 5 ESCROW AGREEMENT IN LIEU OF PERFORMANCE BOND. 4.' Fe~es. owner agrees to pay any and all fees or costs charged by the Escrow Agent.in connection with this agreement. 5. Nonliabilitv of Escrow A~ent.. The Escrow Agent shall have no responsibihtY except for the safekeeping and delivery, of the amounts deposited in the Escrow Account in accordance with this agreement. The EscrOw Agent shallnot be liable for any act done or on~i'tted io be done under this agreement or in'connection with .the amounts deposited in the Escrow Account except as a result of the Escrow'Agent's gross negligence or willful misconduct. If any question, dispute or disagreement arises among any one or more of the parties hereto and/or any other party with respect to the funds deposited in the Escrow Account, the proper interpretation of this agreement, the duties of the Escrow Agent hereunder or the ~ rights of the parties to this agreement, the Escrow Agent shall not be required to act and shall not be held liable'for refusal to act until the question or dispute is settled, and the Escrow Agent has the absolute right at its discretion to do either or both of the following: . (a) withhold and/or stop all further performance under this agreement until the Escrow Agent is satisfied, by receipt of a written document in form and substance satisfactOry t.o the Escrow Agent and. executed and binding upon all interested parties hereto (who may include the subscribers), that the question, dispute, or disagreement has been resolved; or (b) file a suit in interpleader and obtain by final judgment rendered by a court of competent jurisdiction, an order binding all parties interested in the matter. Successors and Assio_ns_. This agreement shall be binding upon the successors and assigns of the parties hereto. Page 4 of 5 ESCROW AGREEMENT IN LIEU OF PERFORMANCE BOND 7. Venue. The parties hereto agree that if any legal action is necessary in connection with 'this agreement, exclusive venue shall lie in Denton County, Texas. · IN WITNESS WHEREOF, the said City, Owner, and Escrow Agent have signed this instrument this day of ., 20 ~ .. BY.: Owllcr BY: ESCROW AGENT BY: City Representative ITEM *1.26. * iNSURANCE: 1:26.1 cONTRACTOR'S INSURANCE: Without ikniti~ any of thc oth~ obli~fions or liabilities of the CONTRACTOR, durins thc term of the contract the CONTRACTO9. and each subcontractor at their own expense shall purchase and maintain the herein stipulated miniature im-atance with companies duly approved to do business in the State of Texas and satisfactory to the OWNBI~ Certificates of each policy shall be delivered to the OWI',IEP, befo.re Y ........... *~-11" cha-oed without 3o/tays navauce said policy shall not ~ canceuea, nonrenew~u o, m-,,,,- y -,, being given to the 0WNEIC except when the policy is bain/cancelled for nonpayme~xt of ~ in which casc 10'days advance va. itten notice is required. Ihior to the effective date ofcancelladon, C_,O~C'I'OR must · the OWNBR a x,:placement certifiCs-re of insurance or pmofof reinslatement A model Certificate of deliver to · Insurance is illustrated in A4,pendix A.2. Coverage shall be of thc foltowin8 types and not less than the specified amounts: .26.2. (a) 1.26.3. (c) · Texas law, ~ the policy endoned to provide a waiver worker's conxpensation as required by of subrogation as to the OWN'ER; employer's liability insurance of not less thnn.$100,000 for each accident, $100,000 diane-each employee~ $500,000 disease-policY limit. Commercial general liability insurance, includin$ independent contractor's liability, completed operations and contractual liability, covering, but not limited to, the liability assumed under the insuring CON'II~CTOR'S (or indemnification provisions of this contract, fully and third parties; subcontractor's) liability for injury to or death.of OWNBP,' S employees extended to include personal injury liability coverage with damaie to property of third parties. vii m!-imum lhnits as set forth below: $1,000,000 General Aggregate . Products - Components/Operations Aggregate $ 1,000,000 Personal and Advertising Injury $ 600,000 S 600,000 Each Occurrence · $ 50,000 Fire Damage (any one fire) Medical Expense (any one person) $ 5,000 The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this project involves work with asbestos) and XC'I.I (explosion, collapsc and underground) · hazards. The completed operations coverage must be maintained for a minhnum of one (1) year after final completion and acceptance of the work, with evidence of same f'ded with OWNER. Cornprehcnsive automobile and aUCk liability insurance, 'covering owned, h/red and non- ........ and ~xoperty dam~e minimum limit of owned vehicles, with a combined bodttY injury p'~ ..... . . ..... rate limits of $250,000 for bodily mlury [per person), $600,000 per occurrence; or =cF, $500,000 bodily injury (per accident) and St00,000 for property damage. Such insur~ce shall include coverage for loading and unloading hazards. OWNER'S PROTECTIVE LIABILITY INSURANCE: CONI't~OR shaU pay for and main=d= at all times durin~ the prosecution of the work under this conlract, an OWNER'S protective liability i~zurance policy naming the OWNBR and the Engineer as insureds for property damage and bodily injury, which may arise in the prosecution of the work or CONTRACTOR'S Coverage shall be on an "occurrence" basis, and the policy shall be operations under this contract. COI71'RACTOR'S liability insurance with a issued by the same insurance company that canies the combined bodily injury and pwperty damage minimum limit of $600,000 per occurrence and $1,000,000 a~regatc. "UMBREU-A" LiABiLiTY INSURANCE: COlqTP. ACTOP-. shall obt_~in~ pay for and maintain umbrella 1/ability insurance dining the contract term, insuring COlq'PRACTOR for an amount of not lc.ss than $1,000,000 per occurrence combined limit for bodily injury and property 6~msge that follows form and applies in excess of the primary liability covcragc's required hereinabove. The policy shall provide "drop down" coverage where undcrlying primary insurance covera§e limits are insufficient or exhausted. OWNER. and Eusine~ shall . be named as additional insurcds. 1.26.4. 1'.26.5. RAILROAD PROTECTIVE INSURANCE: wl~en required in the Special Provisions, · CoITrR. AC~OR. Shall obtain, maintain and present evidence of ~ilroad protective insurance (PPI). The policy shall be in the name of the Railroad Company having jurisdiction over the right-of-way involvecl. The minimum limit of coverage shall meet the specifications provided by the RaiLroad Company. The OWNER shall specify the amount of RPI necessary. pOLICY ENDORSEMENTS AND SPECIAL CONDITIONS: (a) Each insurance policy to be fg, mished by CONTRACTOR shall include the .following. conditions by endorsement to the policy: .(1). name the OWNER as an additional insured as to all applicable coverage; (2) ' each policy shall require that 30 days prior to the cancellation, nonrenewal or any material change in coverage, a notice thereof shall be given to OWNER by certified mail. If the policy is cancelled for nonpayment of premium, only 10 days written notice to OWNER is required; · (3) the term "Owner" shall include .all' authorities, boards, bureaus, commissions, divisions, departments and offices of the OWNER and individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the OWNER; (4) the policy phrase "other insurance" shall not apply to the OWNER where the OWNER is an additional insured on the policy; and ' ' (5) all provisions of the contract concerning hability, duty and standard of care together with the indemnificatio~ provision shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. (b) Insurance furnished by the CONTRACTOR shall be in accordance with the following requirements.'- (1) any policy submitted shall not be subject to limitalions, conditions or restrictions deemed inconsistent with the intent of the insurance requirements to be fulfilled by CONTRACTOR. The OWNER'S decision thereon shall be t'mal; (2) all policies are to be written through companies duly licensed to transact that class of insurance in the STATE OF TEXAS; and (3) all liability policies .required herein shall be written with an "occurrence" basis coverage trigger. (c) CONTRACTOR agrees to the following: (1) CONTRACTOR hereby waives subw§ation rights for loss or damage to the extent · same are covered by insurance. Insurers shall have no fight of recovery Or subrogation against the OWNER, it being the intention that the insurance policies shall protect all parties to the contract and be primary coverage for all losses covered by the policies; (2) Companies issuing the insurance policies and CON'TRACTOR shall have no recourse against the OWNER/'or payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the CONTRACTOR; (3) approval, disapproval or failure to act by the OWNER r~garding any insurance supplied by the CONTRACTOR (or any subcontractors) shall not relieve the CONTRACTOR. of full responsibility or liability for damages and accidents as set forth in the contract documents. Neither shall the bankruptcy, insolvency or denial of ·. liabil.ity by the insurance-company exonerate the coNTRACToR from liability; and (4)' no special payments shall be made for any insurance that the CONTRACTOR. and subcontractors are required to carry; all are included in the contract price and the contract unit prices. Any of such insurance policies required under this section may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby. THIS PAGE INTENTIONALLY LEFT BLANK AGENDA INFORMATION SHEET AGENDA DATE: November 16, 2004 DEPARTMENT: Finance ACM: Kathy DuBose SUBJECT Consider adoption of an ordinance by the City Council of the City of DeNon, Texas, calling an election to be held within said City on the question of the issuance of Ad Valorem Tax Supported Public Securities; making provision for the conduct of the election; and containing other provisions incidental thereto; and declaring an effective date. BACKGROUND At the July 20, 2004, Council Work Session Meeting, the City Council held a discussion concerning a February 5, 2005, Capital Improvement Bond Election. The Council instructed staff to proceed with the process necessary to create a special 50-member Citizens Advisory Committee. At the August 3, 2004 Council Meeting, each Council Member was asked to appoiN seven (7) citizens to the Advisory Committee. The eNire Council selected Mark Burroughs to chair the Committee. Mr. Burroughs chose Randy Robinson as co-chair. The Committee held its first meeting on August 30, 2004. They organized into seven groups to begin gathering data. The groups appointed their own chairs and met with the following entities: City Council, Planning and Zoning Commission, Chambers of Commerce, Universities and DISD, the County Commissioners, citizens, and City staff. After this information-gathering phase was completed, the Committee reorganized into three project teams: Community DevelopmeN, Parks and Recreation, and Transportation. Each Team preseNed their teams' recommended projects to the whole Committee. After considering all of the information, the Committee voted to recommend projects for a capital improvement bond election for February 5, 2005. The Committee preseNed their recommendation at the Join City Council/Planning and Zoning Commission Public Hearing on October 20, 2004. The Planning and Zoning Commission then voted to recommend the Committee recommendation to the City Council. The City Council discussed the recommendations and held a public hearing at the November 2, 2004 Council meeting. The Council discussed the structuring of the proposed Capital ImprovemeN Program and ballot at the November 9, 2004 Council Work Session. Agenda Information Sheet November 16, 2004 Page 2 FISCAL INFORMATION This Ordinance authorizes a Capital Improvement Bond Election for $42.4 million on February 5, 2005. Respectfully submitted: Kathy DuBose Assistam City Manager S:\Our Documents\Ordinances\04\bond election ordinance.doc ORDINANCE NO. AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, CALLING AN ELECTION TO BE HELD WITHIN SAID CITY ON THE QUESTION OF THE ISSUANCE OF AD VALOREM TAX SUPPORTED PUBLIC SECURITIES; MAKING PROVISION FOR THE CONDUCT OF THE ELECTION; AND CONTAINING OTHER PROVISIONS INCIDENTAL THERETO; AND DECLARING AN EFFECTIVE DATE WHEREAS, the City Council (the "City Council" of the City of Demon, Texas (the "City") finds and determines that an election should forthwith be called and held in the City for the purpose of submitting certain propositions for the issuance of ad valorem tax supported public securities for the purposes herein set forth; and WHEREAS, it is provided in Section 3.004 of the Texas Election Code that the governing body shall order elections pertaining to municipal affairs, give notice and appoint election officers to hold the election; and WHEREAS, the City Council finds that the date at which said election shall be held is at least sixty-two (62) days after the date this Ordinance is adopted; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The statemems comained in the preamble to this Ordinance are hereby adopted as findings of fact and as a part of the operative provisions hereof. SECTION 2. An election shall be held between the hours of 7:00 A.M. and 7:00 P.M. on February 5, 2005 in the City, for the purpose of submitting to the voters of the City ballot propositions that authorize the issuance of public securities supported by ad valorem taxes. SECTION 3. That the polling places, which shall be open from 7:00 a.m. to 7:00 p.m., shall be as follows: a. Voters residing in District No. 1 shall vote at: Martin Luther King, Jr. Recreation Center 1300 Wilson Street Denton, Texas b. Voters residing in District No. 2 shall vote at: Fire Station No. 4 2110 Sherman Drive Denton, Texas c. Voters residing in District No. 3 shall vote at: North Lakes Recreation Center 2001 West Windsor Drive Denton, Texas d. Voters residing in District No. 4 shall vote at: Denia Recreation Center 1001 Parvin Denton, Texas SECTION 4. The following election officers are hereby appointed to hold said election: mo For the Central Counting Station: Connie Bell, Presiding Judge; Don Alexander, Manager; and Randie Geistman, Tabulation Supervisor. bo For District No. 1: Ruby Cole, Presiding Judge and Betty Kimble, Alternate Judge. Co For District No. 2: Doris Chipman, Presiding Judge and Mary Jo Pickens, Alternate Judge. d. For District No. 3: Meri Baskin, Presiding Judge and Dorothy Alderdice, Alternate Judge. eo For District No. 4: Stanley Sawyer, Presiding Judge and Shirley Sawyer, Alternate Judge. SECTION 5. The Presiding Judge of the Central Counting Station and of each district shall and is authorized to appoint a sufficient number of qualified election clerks as necessary to assist them in the election, including bilingual assistants and not less than the number of clerks and assistants as required by law. Said election officials shall receive remuneration as set by the Texas Election Code. SECTION 6. By approving and signing this Ordinance the Mayor of the City officially confirms his appointment of the herein named election officers to serve at this election; and by passing this Ordinance the City Council approves and concurs in the appointment of these election officers. SECTION 7. Early voting by personal appearance and mail shall be conducted as provided in this Section. The Early Voting Clerk for said election shall be the City Secretary, City of Denton. The Early Voting Clerk shall appoint city employees and additional assistance by qualified individuals of the community to serve as deputy early voting clerks to assist the Early Voting Clerk at the early voting polling place. Early voting shall be conducted at the City Secretary's office, Municipal Building (City Hall), 215 East McKinney, Denton, Texas. During the period early voting is required or permitted by law, being January 19, 2005 through February 1, 2005, the hours designated for early voting by personal appearance shall be from 8:00 a.m. to 5:00 p.m. on each day except Saturdays (except early voting shall be conducted on Saturday, January 22, 2005, from 10:00 a.m. to 3:00 p.m. at the same location for early voting), Sundays and legal state holidays; and the Early Voting Clerk shall keep said early voting place open during such hours for early voting by personal appearance. The above described early voting polling place is also the Early Voting Clerk's mailing address to which ballot applications and ballots voted by mail may be sent. There is hereby appointed an Early Voting Ballot Board, and Connie Bell shall act as the Presiding Judge and shall appoint two clerks to assist in the duties of the Early Voting Board. Said judge and clerks shall receive remuneration as set by the Texas Election Code. Page 2 SECTION 8. The method of voting in said election shall be by ballots that conform to the requirements of the Texas Election Code. An electronic voting system, using optically scanned ballots meeting the requirements of Chapter 124 of the Texas Election Code, may be used for the election. Preparation of the necessary equipment and official ballots for the election shall conform to the requirements of the Texas Election Code. SECTION 9. All resident, qualified electors of said City shall be entitled to vote at said election. SECTION 10. A substantial copy of this Ordinance shall serve as proper notice of the Election, which notice shall be given by posting substantial copies of this Ordinance in both English and Spanish on the bulletin board at the City Hall of the City used for the posting of notices of meetings of the City Council of the City and at three (3) other public places within the City not later than the twenty-first (21st) day prior to the date upon which the Election is to be held; and substantial copies of this Ordinance in both English and Spanish shall be published on the same day in each of two (2) successive weeks in a newspaper of general circulation in the City, the date of the first publication to be not less than fourteen (14) days nor more than thirty (30) days prior to the date of the Election. SECTION 11. The City Secretary, City of Denton, is hereby responsible for any necessary submissions to the U.S. Department of Justice for preclearance of said election under the Federal Voting Rights Act. SECTION 12. At said election the following PROPOSITIONS shall be submitted in accordance with law: PROPOSITION NO. 1 Shall the City Council of the City of Denton be authorized to issue the public securities of said City, in one or more series or issues, in the aggregate principal amount of $4,000,000, with the public securities of each such series or issue, respectively, to mature serially within not to exceed thirty years from their date, and to be sold at such prices and bear interest at such rates, not to exceed the maximum rates permitted by law at the respective times of issuance, as shall be determined within the discretion of the City Council, for the purpose of the acquisition of property and making improvements for public purposes in said City, to-wit: the construction and improvement of public facilities, including a senior center facility and the South Branch Library; and shall said City Council be authorized to levy and cause to be assessed and collected annual ad valorem taxes in an amount sufficient to pay the annual interest on said public securities and provide a sinking fund to pay said public securities at maturity? PROPOSITION NO. 2 Shall the City Council of the City of Denton be authorized to issue the public securities of said City, in one or more series or issues, in the aggregate principal amount of $27,700,000, with the public securities of each such series or issue, respectively, to mature serially within not to exceed thirty years from their date, and to be sold at such prices and bear interest at such rates, not to exceed the maximum rates permitted by law at the respective times of issuance, as shall be determined within the discretion of the City Council, for the purpose of the acquisition of property and making improvements for public purposes in said City, to-wit: street, roadway, sidewalk and traffic control improvements; and shall said City Council be authorized to levy and cause to be assessed and collected annual ad valorem taxes in an amount sufficient to pay the annual interest Page 3 on said public securities and provide a sinking fund to pay said public securities at maturity? PROPOSITION NO. 3 Shall the City Council of the City of Denton be authorized to issue the public securities of said City, in one or more series or issues, in the aggregate principal amount of $10,700,000, with the public securities of each such series or issue, respectively, to mature serially within not to exceed thirty years from their date, and to be sold at such prices and bear interest at such rates, not to exceed the maximum rates permitted by law at the respective times of issuance, as shall be determined within the discretion of the City Council, for the purpose of the acquisition of property and making improvements for public purposes in said City, to-wit: park improvements, including beautification, athletic fields, the acquisition of community park land and improvements and additions and upgrades to city parks, park buildings, cemeteries and recreation centers; and shall said City Council be authorized to levy and cause to be assessed and collected annual ad valorem taxes in an amount sufficient to pay the annual interest on said public securities and provide a sinking fund to pay said public securities at maturity? SECTION 13. The official ballots for said election shall be prepared in accordance with the Texas Election Code so as to permit the electors to vote "FOR" or "AGAINST" the aforesaid PROPOSITIONS, with the ballots to contain such provisions, markings and language as required by law, and with such PROPOSITIONS to be expressed substantially as follows: PROPOSITION NO. 1 FOR AGAINST THE ISSUANCE OF $4,000,000 OF PUBLIC SECURITIES FOR CONSTRUCTION OF SENIOR CENTER AND PUBLIC LIBRARY IMPROVEMENTS PROPOSITION NO. 2 FOR AGAINST THE ISSUANCE OF $27,700,000 OF PUBLIC SECURITIES FOR CONSTRUCTION OF STREET, ROADWAY, SIDEWALK AND TRAFFIC CONTROL IMPROVEMENTS Page 4 FOR ) AGAINST ) PROPOSITION NO. 3 THE ISSUANCE OF $10,700,000 OF PUBLIC SECURITIES FOR PARK SYSTEM IMPROVEMENTS SECTION 14. It is hereby found and determined that the probable period of usefulness of the proposed improvements covered by the aforesaid PROPOSITIONS is 25 years. SECTION 15. Article 9, Sec. 9.02 of the City Charter contains the following provision and requires this election ordinance to distinctly specify: "(d) A determination of the net debt of the City after issuance of the bonds thereby authorized, together with a declaration that the bonds thereby authorized will be within all debt and other limitations prescribed by the Constitution and laws of the State of Texas". The determination is hereby made that the net debt of the City after the issuance of the bonds herein proposed to be submitted will be not more than $152,206,000 and it is hereby declared that said general obligation bonds will be within all debt and other limitations prescribed by the Constitution and laws of the State of Texas. SECTION 16. In all respects said election shall be conducted in accordance with the Texas Election Code. The City Secretary is authorized to prepare the official ballot for the election and perform every act required by the City Charter, the laws of the State of Texas and all other applicable laws for holding elections. SECTION 17. The election officers named above shall make returns for the election in the manner required by law. The ballots that are properly marked in conformance with the provisions of the Texas Election Code for votes cast both during the period of early voting and on the day of the election shall be counted in the manner required by law. SECTION 18. The manner of holding such election and all questions pertaining thereto shall be governed by the election laws of the State of Texas. SECTION 19. It is hereby officially found and determined that the meeting at which this ordinance is passed was open to the public as required and that public notice of the time, place, and purpose of said meeting was given as required by the Open Meetings Act, Chapter 551 of the Government Code, Tex. Rev. Civ. Stat. Ann. 1997. SECTION 20. This ordinance shall become effective immediately upon its passage and approval. Page 5 PASSED AND APPROVED this the __day of November, 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 6 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: November 16, 2004 Fiscal Operations Kathy DuBose SUBJECT Consider approval of a Resolution nominating members to the Appraisal Review Board of the Denton Central Appraisal District; and declaring an effective date. BACKGROUND The Appraisal Review Board (ARB) is a body specifically charged with the responsibility of reviewing protested appraisal records. They meet primarily between May and July and as needed thereafter. Members of the ARB serve two-year staggered terms. Approximately half the member's terms expire each year. Terms begin January 1. Nominations to this Board are provided by the taxing jurisdictions and appoimed by the DeNon Cemral Appraisal District (DCAD) Board of Directors by a majority vote. City Council may submit as many nominations as they desire. Attached is a brief summary of qualifications for appointment to the ARB and a questionnaire. Nominees must complete and return the questionnaire to the DCAD by November 26, 2004. The Board of Directors is scheduled to make their selection during their December meeting. A list of the current members is also attached. There are eleven members whose terms will expire in December 2004. They include: Charles Osborn (Pilot Poim) John Solberg (DeNon) Garland Thormon, Jr. (DeNon) Neal Scheitel (Aubrey) Robbie J. Gober (DeNon) James M. Dear (Aubrey) Patricia Steele (Corimh) Shirley Haisler (Sanger) Hurl Scruggs, Jr. (Lewisville) Betty McCrary (Lewisville) Fred Williams (Carrollton) Charles Osburn, Garland Thormon, Jr., Neal Scheitel, and Robbie Gober have all served the maximum three terms and cannot be reappoimed. John Solberg is eligible for reappoimmem and has expressed a desire to serve another term. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On November 4, 2003 Council nominated Patricia Muro, Sandra Faust, Jack Weir and David Herold as members to the Appraisal Review Board of the Denton Central Appraisal District. Agenda Information Sheet November 2, 2004 Page 2 FISCAL INFORMATION There is no fiscal impact to the City. EXHIBITS Appraisal Review Board Summary of Qualifications 2004 Appraisal Review Board Members List Resolution Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations APPRAISAL REVIEW BOARD Qualification, Appointment and Compensation Who Can Serve? To serve on the ARB, you must have lived in the appraisal district for at least two years before taking office. You don't need any special qualifications, but you may be ineligible to serve on the appraisal review board if the person is a member of the Board of Directors, an officer, or employee of the appraisal district, an employee of the comptroller, or a member of the governing body, officer or employee of a taxing unit. In county of more than 100,000, a person is ineligible if the person: 1. Has served all or part of three previous terms. 2. Is a former member of the Board of Directors, officer, or employee of the appraisal district. 3. If the person served as a member of the governing body or officer of a taxing unit for which the appraisal district appraises property, until the 4th anniversary of the date the person ceased to be a member or officer. 4. Has ever appeared before the ARB for compensation. You also may not serve as an ARB member if you are closely related to a person who operates for compensation as a tax agent or is in the business of appraising property for property tax purposes in the appraisal district. Relatives barred are those within the second degree of consanguinity or affinity. If you knowingly violate this provision, you commit a class B misdemeanor. This provision took effect September 1, 1989, and applies only to ARB members serving terms that began after that date. The law also bars from ARB service members who contract with the appraisal district or with a taxing unit in the appraisal district. The bar applies if the member or a business entity in which the member has a substantial interest contracts with the appraisal district or a taxing unit that participates in the appraisal district. Likewise, the same taxing units and the appraisal district are each prohibited from contracting with an ARB member or a business entity in which an ARB member has a substantial interest. Substantial interest is defined as either: 1. Combined ownership by the member or the member's spouse of at least 10 percent of the voting stock or shares of the business. 2. Service by the member or the member's spouse as a partner, limited partner or officer in the business entity. You may also not serve if you hold some other paid public office. The Texas Constitution does not allow a person to hold more than one paid public office. Our attorney has interpreted an officer to be a member of a Planning and Zoning Board, a member of a Zoning Board of Adjustments, an election official or any officer that has decision-making authority for any entity that the Appraisal District serves. S.B. 1017 requires the Comptroller to approve curricula, provide materials and supervise a course for training ARB members. The Comptroller shall issue certificates indicating course completion. All ARB members must complete the course or may not participate in ARB hearings. ARB Terms and Size Members serve two-year staggered terms; approximately half the member's terms expire each year. Terms begin January 1. The appraisal district directors appoint ARB members by a majority vote and record their decision in a resolution. ARB Compensation The ARB receives a $75.00 minimum for a half day and a maximum pay of $150.00 per day. ARB Meetings ARB regular meetings are the third Wednesday of each month at 9:00 A.M. These monthly meetings are approximately six to eight hours long. ARB reappraisal hearings will start on a daily basis, as needed, from late May until the appraisal roll is approved usually in late July. Meetings will normally be from 9:00 A.M. to 5:00 P.M. In October, reappraisal hearings will start on the third Wednesday and usually continue for about a week from 9:00 A.M. to 5:00 P.M. Effective January 1, 1998, ARB's must provide hearing times in the evening and on a Saturday or Sunday. Currently the Board meets one night a week during the summer months until 8:00 P.M. The Board of Directors of the Demon Central Appraisal District is considering you as a possible member of the Appraisal Review Board. The Board of Directors will choose members for a two- year term. The selection will be made at the next Board meeting. Would you please answer the following questions and return to the District as soon as possible. Name Address Address Phone Jurisdiction Would you be willing to serve? If so, you would need to be available from mid May until the end of July. The Board meets from 9:00 a.m. to 5:00 p.m. until the roll is certified. There will also be meetings periodically throughout the year. 2. Have you ever been an officer or employee of the appraisal district? 3. Have you ever served on the appraisal district's Board of Directors? Have you ever been a member of the governing body or an officer of a taxing unit for which the appraisal district appraises property?__ If so, has it been the 4a~ anniversary of the date you ceased to be a member or officer? o 6. 7. 8. 10. Have you ever appeared before the ARB for compensation? How long have you resided in Denton County? Occupation Do you have any prior experiences serving on an appraisal review board or any board that has to do with property value? Could you make a decision based on evidence rather than feelings for the taxpayer? The property tax code requires that all property be valued at 100% of market value. Could you keep this in mind throughout the proceedings? 11. Would you be willing to work nights and weekends if necessary? __ The Board of Directors will notify you of their decision. Board of Directors Denton Central Appraisal District Denton Central Appraisal District 3911 Morse Street, P O Box 2816 Denton, Texas 76202-2816 (940) 349-3800 2004 DCAD APPRAISAL REVIEW BOARD Original Term - June 2000 CHARLES OSBURN 10842 Osbum Rd. Pilot Point, TX 76258 940-365-2235 Term Expires 12/31/2004 Original Term- January 2001 JOHN SOLBERG 2244 Stonegate Denton, TX 76205 940-387-3089 Term Expires 12/31/2004 Original Term - January 1999 W. GARLAND THORNTON, JR. 2513 Shenandoah Trail Denton, TX 76210 940-382-7804 940-458-7404 Term Expires 12/31/2004 Original Term - April 1999 NEAL SCHEITEL 4478 Wildcat Rd. Aubrey, TX 76227 940-440-9570 Term Expires 12/31/2004 Original Term - August 2000 ROBBIE J. GOBER 734 Wilson Street Denton, TX 76205 940-384-1002 Term Expires 12/31/2004 Original Term - April 2001 JAMES M. DEAR 5122 - FM 2931 Aubrey, TX 76227 940-365-9596 Term Expires 12/31/2004 Original Term - January 2002 BILL JAMES 3601 Derby Run Corinth, TX 76210 940-321-1117 Term Expires 12/31/2005 Original Term - January 2002 JACK WEIR 1212 Vista Verde Denton, TX 76210 940-484-8302 Original Term - February 2002 DAVID HEROLD P. O. Box 2816 Denton, TX 76208 940-686-8007 Original Term - January 2003 PATRICIA STEELE 3507 Buckingham Corinth, TX 76210 940-498-9406 Original Term - January 2003 SHIRLEY HAISLER 1200 Cowling Rd. Sanger, TX 76266 940-458-3678 Original Term - January 2003 HOWARD CREAMER P. O. Box 289 Little Elm, TX 75068 972-292-2212 Original Term - January 2003 WILLIAM SINCLAIR No 52. Hidden Valley Rd. Shady Shores, TX 76208 940-321-3686 Original Term - January 2003 PATRICK CARR, JR. 1116 Trophy Club Dr. Trophy Club, TX 76262 817-491-1153 Original Term - January 2003 HURL SCRUGGS, JR. 712 Knollridge Dr. Lewisville, TX 75077 972-221-4323 Term Expires 12/31/2005 Term Expires 12/31/2005 Term Expires 12/31/2004 Term Expires 12/31/2004 Term Expires 12/31/2005 Term Expires 12/31/2005 Term Expires 12/31/2005 Term Expires 12/31/2004 Original Term - January 2003 BETTY MCCRARY 1474 College Parkway Lewisville, TX 75077 972-221-1965 Original Term - January 2003 FRED M. WILLIAMS 2704 Devonshire Dr. Carrollton, TX 75007 972-245-5060 Original Term - January 2004 ERIC BROOKS 7704 TN Skiles Rd. Ponder, TX 76259 (940) 479-2745 Term Expires 12/31/2004 Term Expires 12/31/2004 Term Expires 12/31/2005 S:\Our Documents\Resolutions\04~Appraisal Revie~v Board 2004.doc RESOLUTION NO. A RESOLUTION NOMINATING MEMBERS TO THE APPRAISAL REVIEW BOARD OF THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the term of office for various Appraisal Review Board members of the Demon Cemral Appraisal District will expire on December 31, 2004; and WHEREAS, the City of Demon, Texas wishes to nominate members to said Board; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That the City and Board of the Denton Central Appraisal District. of Denton, Texas, hereby nominates as members to the Appraisal Review SECTION 2. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: THIS PAGE INTENTIONALLY LEFT BLANK AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET November 16, 2004 City Manager's Office Mike Conduff, City Manager SUBJECT Consider nominations/appointments to the City's boards and commissions. BACKGROUND The following is a list of current board/commission vacancies: Community Development Advisory Commission - Betty Sherman has resigned. This nomination for Council Member Kamp. Historic Landmark Commission - Mayor Pro Tem McNeill has nominated Thomas Wood. Traffic Safety Commission - Georgianne Burlage has resigned. This is Council Members. If you require any further information, please let me know. is a a nomination for all Respectfully submitted: Jennifer Walters City Secretary S:kAgenda Items\Board-Commission vacancies.doc November 12, 2004 Dear Council Member: My name is Steve McNeill. I come from a long-time Denton family. I do not personally reside in Denton at this time, but I grew up in Denton and graduated from North Texas in 1981. My family and I own the McNeill's appliance store on the north side of The Square that has been in business in Denton for over 70 years. I am representing our family in planning for the development and/or sale ora few parcels of property that we own in Denton. I have recently become aware of a proposed change in the Development Code in Denton that would require a Specific Use Permit (SLIP) for all multi-family development. I became aware of this proposal ALMOST BY ACCIDENT in the course of recent conversations with Development staff regarding the potential development of one of our parcels. We are adamantly opposed to this proposed change for the following reasons: Property owners (including us) acquired or held property based upon one set of economic assumptions and would face a different set of economic realities imposed by the City's adoption of this plan Developers would shy away from multi-family development in Denton because of the additional costs of SLIPs and high risk of permit denial · The City has invested a huge amount of the taxpayers' money in the Denton Plan and the Development Code and in effectively re-zoning the entire city. Planning and Urban Development specialists invested thousands of hours in creating these plans, zoning maps, and development standards that guide the development of the City in an impartial, professional, non-political fashion. The taxpayers of Denton footed that bill. This proposed change would undermine that work, and put multi- family development into a political environment fraught with conflicting interests of Planning and Zoning commissioners and City Council members instead of relying on professionally-developed, impartial, well~documented, identifiable development standards · The notice of this proposed change to the Development Code, while apparently passing the letter of the State's legal requirements, has been WHOLLY INADEQUATE for something of this economic magnitude. It is ironic that the SUPs that would occur as a result of this proposed change would require notification by mail of all property owners within 200 feet of the property in question, yet The City saw no need to notify all owners of property that would be adversely affected by this proposal other than in the Legal Notices section of the newspaper. I'll give you a specific example of how one of my family's land holdings would almost certainly be negatively affected by this proposal. We own 7.5 acres of land directly behind the Southridge Village Shopping Center on the service road for 1-35 E just southeast of Lillian Miller Parkway. Our land, which is totally covered with trees, is wedged between the back side of the shopping center to the north, the rear of an elderly care center to the west, the back side of a number of single-family homes that are part of a subdivision to the south, and open, undeveloped land to the east. The only access point to the property is a small right of way onto the service road for 1-35E (right next to the Luby's Cafeteria). The limited access and visibility of our property from any public street may limit its value for commercial development (which is allowed with some limitations in its current RCR~2 zoning). Because of this, a multi-faruily use may be more appropriate. The current RCR-2 zouing allows this use with an appropriate set of development standards. If this proposal passes, it would require a SUP for multi-family development. As we understand it, all property owners within 200 feet of our property would be notified by mail and given the opportunity to voice their support or opposition regarding the project, and if more than 20% are opposed, a super-majority (6 of 7) of council votes would be required to approve the SUP. We believe the ownefs of the single-family homes to the south of our property would not support ANY type of development on that property since it currently provides a beautiful, quiet, private buffer to the rear of their homes. This proposal would give them a voice that would almost certainly result in the denial of the SLIP. It is my understanding that the objective of this proposal is not to keep multi-family development from occunSng in Denton, but rather to ensure that it meets high quality standards, and minimizes negative impact on neighboring developments. The homeowners in this case don't have a legitimate right to the woods that we are providing for them at no cost. When they bought their homes, they knew (or should have known) that multi-family development was allowed on this land. However, with this proposal, these homeowners would possess the voice to keep this development from occurring. That may increase their property values, but if it does, it comes at the expense of our property value, and it's just plain wrong. I don't really hunt. I especially don't hunt squirrels. And ifI did, I don't think I would eat them. But let me give you an analogy that assumes I like to hunt and eat squirrels. Let's say I had decided to go "on the cheap" in my choice of hunting equipment and I elected a slingshot to try to kill the squirrels. But after hunting squirrels for a while with a slingshot and failing to hit any, I realized that I had a problem with my choice of hunting equipment. One way I could go to solve my problem would be to get a 12-gauge shotgun with heavy buckshot. I could almost certainly hit a squirrel with that, but how much squirrel would be left for the dinner table? Another way to go would be a .22 rifle. That is a lot mom accurate than the slingshot, and since it is a single small-caliber bullet, it would leave a lot of squirrel for the dinner table (which was the goal all along). Which solution do you think is smarter? This proposal is like using a 12-gauge shotgun with heavy buckshot to hunt squirrel. You'll.get your squirrel, but you won't get your dinner. The smarter solution is to use a .22 rifle. That is equivalent to improving, and fine-tuning the development standards to ensure high quality and minimize negative impact on neighboring developments. I think our city deserves the smarter approach to this problem. If you don't agree with me on this, I have a modest proposal. The city should MAIL OUT notice of this proposal to all owners of land in Denton whose current zoning permits multi-family development. They would be given an opportunity to offer their support or opposition. If more than 20% of them are opposed, it would trigger a super~ majority vote by the council in order to pass this proposed change. That is nothing more, nothing less than would be required under the very SLIPs that would result l~om this action. Let's ensure all property owners are heard and their rights are protected. Thank you for indulging me, Steve McNeill 817-233-0302 Mayor and Council Planning and Zoning Commissioners City Planning Staff Wednesday, November 10, 2004 Re: Multi-Family within Denton To Whom It May Concern: Recently there has been a lot of discussion about the number of multi-family units being built within the City of Denton and how this has affected the vacancy rates of existing older multi-family. That to address this ~over- building", the City should implement an SUP requirement on all multi-family, no matter location or type or size. The biggest problem with the SUP process is that it will not bring the consistent results the City is looking for. SUPs will not bring that consistency because they are not backed up with written standards. The SUP process, being a zoning procedure is political and thus will a percentage of the time, bow to neighborhood short term desires or fears instead of to long-term city, and regional, state, and national needs. If multi-family is not being built in accordance with the vision of the Denton Plan it's because the standards within the Code are not concrete enough. Changes then need to be made to the Development Code that will help insure that multi-family will continue to be an integral piece of the larger puzzle of creating better community. Changes to the Development Code should address the following: · Location: o Multi-Family should be located within a 5-minuta walking distance to: · Retail services and goods · schools employment o Should be located within a 3-minute walk to: · Park or usable community open space · Transit or bus stop with shelter · Site Design: All designs, including Multi-family, should: o Incorporate natural and/or man-made features o Create or use an existing focal point (park or open space, civic building, etc.) o Create a public streetscape, few breaks along the public roads, wide sidewalks, street trees, pedestrian scaled architectural elements, use parallel parking along the public streets o Incorporate mixed-use retail and office on the lower floor along a percentage of roads and at intersections. (These areas can incorporate lease and administrative offices, common meeting and recreation rooms, exercise rooms for the multi-family tenants) · Number of Units: Proportional to Commercial/Office/Employment lease-able or, if part of a master plan, futura lease-able areas within a 5-minute walk. · Density: Proportional to distance from services, goods, schools, employment, etc. · Amenities: Requirements should be inversely proportional to walking distances mentioned in ~Location" above. (i.e. If a public park is located across the street, little open space would be required by code.) · Vadety of Home types: All neighborhood residential developments over 10 acres must be required to contain at least 3 different types of homes with densities required to be high next to and within commercial and employment centers, and required to be lower as it moves away from those areas. GREG EDWARDS ENGINEERING SERVICES, INC. 1621 AMANDA COURT PONDER TEXAS 76259 P 940. 482. 2907 F 940. 482. 8128 VVWW. GEES. U S o Single Family Detached o Single Family Attached o Town homes (minimum 2 stories) o Live-Work (minimum 2 stories) o Multi-Family (minimum 2 stories, maximum 4 stodes) o Multi-Family above business (minimum 3 stories) · Neighborhood Centers: The City must establish Neighborhood Center locations based on the mobility plan and other criteria so that informed evaluation, site planning, and review may take place. · Rezoning: Based upon the findings above, the City needs to re-evaluate and, if necessary rezone large areas of NRMU and NRMU-12 to create true neighborhood centers. (The Denton Plan established maximum sizes of NRMU to be approximately 10 acres.) · Streets: Street cross-sections must be changed to REQUIRE on-street parking for all streets 4 lanes and below. Lanes should be narrowed to slow traffic. This is essential for pedestrian separation from traffic and for luring commemial and office uses. · Mixed Uses: Residential uses above businesses should be allowed and rewarded inall zoning excepting heavy industry. Residential above businesses should be required in transit, downtown and regional mixed use areas. · Alternative Design: Conservation design should be encouraged and rewarded in all NR-2, NR-1 and Rural designs to save street and utility costs, minimize drainage runoff, and to preserve farm, ranch, or natural areas close to the City. · Incentives: o Tax incentives should be used for businesses which have a large percentage of employees living within walking distance of their job. o Tax incentives should be used for businesses which are located within 1200 feet of a transit center. A Site Plan review by staff is needed based on standards, on law- not politics at the podium. Well placed, very dense, mixed use is needed by the city to reduce, streets, water and sewer main extensions, and vehicle trips - to create an environment where people have a chance of getting rid of at least one car so that we can start to reduce congestion on our roads, reduce pollution in our air, and perhaps most vital, needed to give time, normally used in commute, back to our families, to our churches and communities. The challenge is not multi-family, but poorly designed and implemented development as a whole. The SUP process will not provide consistent results because it has no standards. The SUP process is not necessary, as the standards that will insure quality development can be and must be written into the Code. Sincerely, Allen Bussell GEES, Inc. http://www.gees.us GREG EDWARDS ENGINEERING SERVICES, INC. 1621 AMANDA COURT PONDER TEXAS 76259 P 940. 482. 2907 F 940. 482. 8128 VVVWV. GEES. U S Good Neighborhood Design In Amedca, there are two primary types of settlement today: the traditional neighborhood, which was the model in America from the first settlements until World War II, and suburban sprawl, which has been the model since then. In their work, the members of the design team seek to create traditional neighborhoods, rather than sprawl. To do this they follow some essential planning principles, culled from centuries of tradition that distinguish America's best neighborhoods and sinai! towns. The traditional neighborhood has the following physical attributes: 1) The neighborhood has a discernible center, usually a main street, public square or green, typically bordered by civic buildings, shops, and/or residences. 2) The neighborhood has visually discernible edges where the neighborhood ends, formed by transportation corridors (such as major streets or rail lines), or by natural and agricultural landscapes. 3) The neighborhood is limited in size so that a majority of the population is within a five- minute walking distance of its center {1/4 mile). The needs of daily life are mostly available within this area: convenient work places, stores, community events, leisure opportunities and transportation connections to more distant places. This allows independence to those who do not drive, especially the elderly and the young. 4) The neighborhood has a variety of dwelling types. These usually take the form of houses, rowhouses, fiats, apartment buildings, coach houses, and fiats-above-stores, so that the young and the old, singles and families, the poor and the wealthy, can all find places to live. ^ small ancillary building is typically permitted and encouraged within the backyard of each house. In addition to providing parking, this small building may be used as one rental unit of housing or as a place to work. 5) The neighborhood has concentrations of civic, institutional and commercial activity embedded within It, not isolated in remote, single-use complexes. Schools are sized and located to enable children to walk or bicycle to them. 6) Dispersed throughout the neighborhood are a range of parks, from tot-lots and village greens to ballfields and greenbelts. Conservation areas and open lands are used to define and connect different neighborhoods and districts. 7) The neighborhood has streets laid out in a network, so that there are alternate routes to most destinations. This permits most streets to be smaller with slower traffic, and to have parking, trees and sidewalks. Such streets are equitable for both vehicles and pedestrians, encourage walking, and reduce the number and length of automobile trips. 8) The neighborhood places Its buildings close to the street, so that streets and squares are spatially defined as 'outdoor reoms'. This creates a strong sense of the neighborhood's centers and streets as places, and of the neighborhood itself as a place. 9) The neighborhood utilizes its streets for parking. Parking lots and garages rarely if ever front the streets, and are typically relegated to the rear of the lot and accessed by alleys. 10) The neighborhood reserves prominent sites for civic buildings and community monuments. Buildings for education, religion, culture, and government either terminate street vistas or front neighborhood centers. 11) In the neighborhood, architecture and landscape design grow from local climate, topography, history, and building practice. 12) In the neighborhood, preservation and renewal of historic buildings and districts affirms the continuity and evolution of human society. November 12, 2004 Dear Council Member: My name is Steve McNeill. I come fi:om a long-time Denton family. I do not personally reside in Denton at this time, but I grew up in Denton and graduated from North Texas in 1981. My family and I own the McNeill's appliance store on the north side of The Square that has been in business in Denton for over 70 years. I am representing our family in planning for the development and/or sale of a few parcels of property that we own in Denton. I have recently become aware of a proposed change in the Development Code in Denton that would require a Specific Use Permit (SUP) for all multi-family development. I became aware of this proposal ALMOST BY ACCIDENT in the course of recent conversations with Development staff regarding the potential development of one of our parcels. We are adamantly opposed to this proposed change for the following reasons: · Property owners (including us) acquired or held property based upon one set of economic assumptions and would face a different set of economic realities imposed by the City's adoption of this plan · Developers would shy away from multi-family development in Denton because of the additional costs of SUPs and high risk of permit denial · The City has invested a huge amount of the taxpayers' money in the Denton Plan and the Development Code and in effectively re-zoning the entire city. Planning and Urban Development specialists invested thousands of hours in creating these plans, zoning maps, and development standards that guide the development of the City in an impartial, professional, non-political fasb/on. The taxpayers of Denton footed that bill. This proposed change would undermine that work, and put multi- family development into a political environment fi:aught with conflicting interests of Planning and Zoning commissioners and City Council members instead of relying on professionally-developed, impartial, well-documented, identifiable development standards · The notice of this proposed change to the Development Code, while apparently passing the letter of the State's legal requirements, has been WHOLLY INADEQUATE for something oftb/s economic magnitude. It is ironic that the SUPs that would occur as a result of this proposed change would require notification by mail of all property owners with/n 200 feet of the property in question, yet The City saw no need to notify all owners of property that would be adversely affected by this proposal other than in the Legal Notices section of the newspaper. I'll give you a specific example of how one of my family's land holdings would almost certainly be negatively affected by this proposal. We own 7.5 acres of land directly behind the Southridge Village Shopping Center on the service road for 1-35 E just