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March 22, 2005 Agenda
AGENDA CITY OF DENTON CITY COUNCIL March 22, 2005 After determining that a quorum is presem, the City Council of the City of Demon, Texas will convene in a Work Session on Tuesday, March 22, 2005 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 concerning County funding issues. 2. Receive report, hold discussion, and give staff direction regarding the Fry Street Fair. o Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of March 22, 2005. Following the completion of the Special Called Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the TEXAS GOVERNMENT CODE, as amended, as set forth below. 1. Closed Meeting: mo Deliberations regarding personnel matters - Under TEXAS GOVERNMENT CODE Section 551.074. Deliberate and discuss employment evaluation of the City Manager, City Attorney, and Municipal Court Judge relating to the establishment of performance measures for such City Council appoimees, including matters relating to duties and discipline. Bo Consultation with Attorney -- Under TEXAS GOVERNMENT CODE Section 551.071 Discuss and consider legal issues concerning graining a cable franchise to the University of North Texas to construct, reconstruct, operate and maintain a cable television system in the City of Denton where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. 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 City of DeNon City Council Agenda March 22, 2005 Page 2 ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE 'PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of DeNon City Council on Tuesday, March 22, 2005 at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE mo U.S. Flag Texas Flag "Honor the Texas Flag - i pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS mo Proclamations/Awards March Yard-of-the-Month Awards Recognition of staff accomplishments 3. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consem Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consem Agenda (Agenda items A - Q). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. if no items are pulled, Consem Agenda items A - Q 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 adoption of an ordinance of the City of DeNon, Texas authorizing the Mayor to execute an interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas regarding the use of the rights of way for Denton County's Fiber Optic System; and providing an effective date. Bo Consider adoption of an ordinance authorizing the City Manager to accept an interlocal Agreement with Mustang Special Utility District to authorize participation in various City of DeNon comracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 3321 - imerlocal Agreemem with Mustang Special Utility District). City of Demon City Council Agenda March 22, 2005 Page 3 Co Consider adoption of an ordinance authorizing the financing for the purchase of three self check machines for the Denton Public Library System through a lease purchase financing agreemem; providing for the expenditure of funds therefor; and providing an effective date (File 3314 - Lease Purchase of Self Check Machines approximate finance charges of $4376.56). Do Consider adoption of an ordinance approving the expenditure of funds for the purchase of three self check machines for the Demon Public Library System available from only one source in accordance with the provision for state law exempting such purchases from requirements of competitive bids; and providing an effective date (File 3313 - Purchase of Self Check Machines for the Demon Public Library System awarded to 3M Library Systems in the amount of $69,440). mo Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Professional Services Agreemem with the firm of Schrickel, Rollins and Associates, Inc. to provide professional design and landscape architecture services for the Cedar Street Streetscape Improvements; authorizing the expenditure of funds therefor; and providing an effective date (RFSP 3215 in an amoum not to exceed $123,000). Fo Consider adoption of an ordinance of the City of Demon, Texas approving an Agreement between the City of Denton and the North Texas Umpire Association; approving the expenditure of funds for the purchase of certified softball officiating services available from only one source in accordance with the provisions of the state law exempting such purchases from the requirements of competitive bids; and providing an effective date (File 3315 -Agreemem with North Texas Umpire Association in the amount of $40 per game for an estimated award of $44,000). Go Consider adoption of an ordinance of the City of Demon, Texas authorizing the City Manager to execute a Third Amendment to Professional Services Agreement for engineering services and related services to approved electrical power system construction projects for Denton Municipal Electric with SGS Witter, Inc.; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommended approval with a vote of (5-0). Ho Consider adoption of an ordinance of the City of Demon, Texas amending the provisions of Section 26-128 of the City of Demon Code of Ordinances; providing for clarification and amendmem of the provisions for Losses Resulting from Hidden Water Leaks; providing for a repealer; providing for a severability clause; and providing for an effective date. Consider a request for an exception to the Noise Ordinance for the purpose of a music festival, Fry Street Fair, conducted by Delta Lodge, in the area of Fry Street, behind Lucky Lou's, and the backyard of the Delta Lodge. The event is to be on Saturday, April 23, 2005, from 12:00 noon to 10:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival from 70 decibels to 80 decibels. City of DeNon City Council Agenda March 22, 2005 Page 4 Jo Consider a request for an exception to the Noise Ordinance for the purpose of a music festival, Wake Up 2005 Festival, in the North Texas Fairgrounds. The even is to be held on Saturday, April 2, 2005 from 12:00 noon to 11:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival - from 70 decibels to 75 decibels. Ko Consider approval of a tax refund for the following property tax: Tax Name Reason Year Amount ~ ~ ~ ~nt ~a~g~ 3004 $~8 3 ! Lo Consider adoption of an ordinance approving an assignmeN of leasehold iNerest in an airport lease from JVC Real Estate, LLC to Dennis R. and Carla M. Frisbee for property located at 4730 Lockheed Lane at the Denton Municipal Airport; and providing an effective date. The Airport Advisory Board recommends approval (6-0). Mo Consider adoption of an ordinance of the City of DeNon, Texas amending the Fiscal Year 2004-2005 Budget and Annual Program of Services of the City of DeNon to allow for an adjustmeN of six thousand five hundred dollars ($6,500) to provide for the paymeN of expenses incurred for the review of a cable television franchise application by University of North Texas; declaring an emergency; providing for publication of this ordinance; and providing an effective date. No Consider adoption of an ordinance of the City of DeNon, Texas amending the Fiscal Year 2004-2005 Budget and Annual Program of Services of the City of DeNon to allow for an adjustmeN of six thousand dollars ($6,000); declaring an emergency; approving the amendment of the CY 2005 hotel tax funding agreement with the Denton Chamber of Commerce; providing for publication of this ordinance; and providing an effective date. (The HOT Committee approved this item by a vote of 3-0). Oo Consider adoption of an ordinance of the City of DeNon, Texas, declaring that upon the City Secretary's certification that the candidates for Districts 2 and 4 - Pete Kamp and Perry McNeill - are unopposed and are elected to office; requiring the City Secretary to post an Order of Cancellation in both English and Spanish; and declaring an effective date. Po Consider adoption of an ordinance of the City of DeNon, Texas authorizing settlemeN of an emineN domain action styled City of Denton, Texas v. Ed Wolski, Trustee, et al, Cause No. ED-2003-01177, filed in the probate court of Denton County; 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; authorizing the expenditure of funds therefore; and declaring an effective date. City of DeNon City Council Agenda March 22, 2005 Page 5 Qo Consider adoption of an ordinance of the City of DeNon abandoning and vacating a 0.08 acre Public Utility easemem, recorded in Volume 974, Page 156, Deed Records of DeNon County, Texas, a 0.07 acre Public Utility easemem, recorded in Volume 974, Page 152, Deed Records of Denton County, Texas, and a 16' public utility easemem tract, recorded in Volume 974, Page 154, Deed Records of Denton County, Texas; and providing an effective date. 4. PUBLIC HEARINGS mo Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change to create an overlay district consisting of a historic conservation overlay district being generally located on the east and west sides of Bell Avenue, south of Sherman Drive and north of University Drive; amending Chapter 35, Subchapter 7 of the City of DeNon Code of Ordinances, "DeNon Developmem Code," "Special purpose and overlay districts" to add section 35.7.7 "Bell Avenue Historic Conservation District" providing for the creation of Bell Avenue Historic Conservation Overlay District and regulation; such overlay district establishes different regulations to help conserve the historic, architectural, and cultural attributes of the district; providing for a severability clause; providing for a penalty in the maximum amoum of $2,000.00 for violations thereof; and providing a severability clause and an effective date. The Historic Landmark Commission recommends approval (5-0). The Planning and Zoning Commission recommends approval (6-0). Bo Hold a public hearing and consider an ordinance to amend the DeNon Development Code related to retail, drive-through and restaurant uses associated with quick vehicle servicing in the industrial Cemer Employmem (lC-E), industrial Cemer General (lC-G) and Employmem Cemers industrial (EC-i) zoning districts. The Planning and Zoning Commission recommends approval (5- 1) with conditions. (DCA05-O001, Convenient Sales) Co Hold a public hearing to consider an ordinance to amend a Specific Use Permit (SUP) for a drive-through facility for Church's Chicken. The property is in a Neighborhood Residemial Mixed Use (NRMU) zoning district and is generally located south of McKinney Street approximately 900 feet west of Loop 288. The Planning and Zoning Commission recommends approval (5-0). (Z04-0047, Church's Chicken) 5. ITEMS FOR INDIVIDUAL CONSIDERATION mo Consider adoption of an ordinance of the City Council of the City of DeNon, Texas, on second reading, graining a Cable Franchise to the University of North Texas (UNT) to construct, reconstruct, operate and maintain a cable television system in the City of Denton, Texas and setting forth conditions accompanying the graining of this Cable Franchise; providing for a penalty of five hundred dollars ($500) for the violation of this ordinance; providing for a savings clause; providing for the effect of this ordinance upon other ordinances and resolutions; and providing an effective date. City of DeNon City Council Agenda March 22, 2005 Page 6 Bo Consider adoption of an ordinance authorizing the Mayor to execute an amendment to a Tax Abatement Agreement with Flowers Baking Co. of Denton, LLC; dated September 19, 2003 for the purpose of reducing the land area that is subject to the Tax Abatemem Agreemem; providing for a severability clause; and providing an effective date. Co Consider an exaction variance from section 35.20.2(1.3.a.) of the Code of Ordinances concerning improvements to a perimeter street. The approximately 12.8-acre parcel is in an Industrial Cemer, Employmem (lC-E) zoning district and is generally located south of Jim Christal Road at GC & SF Railroad, adjacem to 1-35. The Planning and Zoning Commission recommends approval (3-2). (V05- 0009, 84 Lumber) Do Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: A. Willie Hudspeth regarding concerns of Southeast Denton. B. Dessie Goodson regarding responsibility and open governmem. mo New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Fo Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Go Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Ho Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of DeNon, Texas, on the day of ,2005 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE iN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE iNTERPRETERS FOR THE HEAR1NG IMPAIRED IF REQUESTED AT LEAST 48 HOURS iN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-TX SO THAT A SIGN LANGUAGE iNTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Finance Kathy DuBose SUBJECT Receive a report, hold a discussion and give staff direction concerning County funding issues. BACKGROUND Every year part of our annual budget discussions concern programs where costs are shared with Denton County. Over the past few years Denton County Commissioners have debated whether they should continue to support some of these programs. Attached is a description of these programs, the history of the County's contribution for such programs and the impact if that support is eliminated. FISCAL INFORMATION See Attached. EXHIBITS Fire Department Information Library Services Information Respectfully submitted: Kathy DuBose Assistant City Manager DENTON COUNTY "EMS" INTERLOCAL AGREEMENT The interlocal agreement for ambulance services between the City of Denton and Denton County began in 1980 and provides for emergency ambulance services to unincorporated areas of Denton County within the designated area. Each year a new agreement and ordinance are presemed to the DeNon City Council for the fiscal year approving the fee the County will pay to the City of DeNon for service using a County-wide funding formula based on: (1) population served on January 1 of the previous year; (2) number of ambulance calls in the unincorporated County area: and, (3) the unincorporated rural square miles in the County. The population and square mileage figures used are based on numbers obtained from the North Central Texas Council of Governments and the runs are from the previous year. This funding formula has not changed over the past several years. Unfortunately, in spite of its rapid growth, the County has not increased the total annual amount it budgets to fund ambulance services in the County unincorporated areas for several years. They have only juggled the total base in its funding formula. They have cominued to use $750,000 as the total allocation for County Ambulance Funding. As a matter of fact, the $750,000 was actually reduced to $730,000 for the FY2004/2005. Therefore, the $730,000 is divided imo thirds, which equals $243,333 for each category. Each category's funding ratio is determined by dividing $243,333 by the total population covered; $243,333 by the number of calls in the County area; and, $243,333 by total rural square miles served in the County area. The total estimated revenue to the City of Denton of $188,055.00 for providing emergency ambulance services in the County for FY2004/2005 is based on the funding formula ratios as follows: A fixed readiness sum for population based on .484751233 per capita for an estimated maximum amount of $52,778.79. A sum of $399.5615764 per ambulance run for an estimated maximum amount of $41,554.40. This sum is based upon the number of runs made in the County areas for fiscal year 2004. A fixed sum based on 211.83 rural miles in the agreed operating territory for an estimated maximum amount of $93,584.18. Following is the four (4) year history of the ambulance-funding ratio in the County and the resulting amounts allocated to the City of Denton: FY2001/2002 FY2002/2003 FY2003/2004 FY2004/2005 County Population 434,396 463,866 489,263 501,975 Denton Population 111,200 107,038 109,162 109,162 Denton's % of Total 25.6% 23.1% 22.3% 21.7% County Funding Formula Rate 0.5561 0.5389 0.5110 0.4848 County Readiness Funding Total $250,000 $250,000 $250,000 $243,333 Readiness Funding to Denton $63,427 $57,688 $55,778 $52,916 Page 1 of 6 Total County Ambulance Runs 648 712 712 609 Denton Runs to County 316 323 275 104 Denton's % of Total 48.8% 45.5% 38.6% 17.1% County Funding Formula Rate $385.80 $351.12 $351.12 $399.56 County Runs Funding Total $250,000 $250,000 $250,000 $243,333 Runs Funding to Denton $121,913.58 $113,412.92 $96,558.99 $41,554.40 Unincorporated Square Miles 612.19 574.22 551.79 550.79 Denton's Covered Square Miles 285.38 280.25 214.83 211.83 Denton's % of Total 46.6% 48.8% 38.9% 38.5% County Funding Formula Rate $408.37 $435.37 $453.07 $441.79 Runs Funding Total $250,000 $250,000 $250,000 $243,333 Rural Square Miles Funding Total $116,540.62 $122,012.49 $97,335.22 $93,584.18 TOTAL COUNTY EMS FUNDING $750,000 $750,000 $750,000 $730,000 Current Concerns of Countv Funding of Emergency Ambulance Services: 1. The City receives no "first responder" fees if the incidem is a medical call in the Mayhill-Cooper Creek because it has the ambulance agreemem. The County has saved funds by this loophole in the contracts because they paid the Mayhill-Cooper Creek a first responder fee when the City's ambulance responded. This first responder fee should be paid to the City for a fire engine response as the first responder just as it was to Mayhill-Cooper Creek. The purpose of the contract is to provide services not to save the County expenditures. The costs to provide these services continue to increase with no increase in funding. The County Fire Chiefs Association has long complained of the inadequate funding and asked for increases to the $750,000. It has also argued for an updated funding formula. For example, using the funding formula, some cities actually receive funding because of population or square miles but actually provide no services. City of DeNon residems unfairly subsidize County funding of emergency ambulance services. City residents pay the same County taxes that unincorporated residents do who receive the services. City residems also subsidize the costs by paying City taxes to provide County services at less than full cost recovery. This ongoing imerlocal agreemem is often delayed in the County's legal approval process, which also includes review by the DeNon County Fire Chiefs Association as well as approval by the Commissioners Court as part of their budget process. Even though the contract is usually approved after its starting date, the agreement still remains effective from October 1, 2004 with no reductions in revenues. 5. County funding is always a year behind in its determination of fees. Page 2 of 6 DENTON COUNTY "FIRE" INTERLOCAL AGREEMENT The interlocal agreement for fire service between the City of Denton and Denton County provides fire protection services by the Denton Fire Department to the County areas previously served by the Mayhill-Cooper Creek Volunteer Fire Department and a small portion of the Lake Cities Fire District now adjacem to the newly annexed City property in the southwest portion of Teasely (FM 2181). In 2003, Denton County requested that the City of Denton provide fire protection to the designated area due to Mayhill-Cooper Creek's cominuing lack of sufficiem resources to provide a proper response to fire calls. The City had historically responded imo Mayhill's District on mutual aid because of their lack of resources. However, the County did not reimburse the City; they reimbursed Mayhill. Due to the fact the Fire Department was responding anyway with no reimbursemem, the City pursued a comract when Mayhill District could no longer meet its contracted requirements. The County also requested in 2004 that the City respond to a small area next to the new DISD high school on FM 2181 and Old Alton Road since the City of Demon's response time to the area is much quicker than Lake Cities Fire Department. The county pays a set figure per incidem that is $368.10 per call in our currem contract. Current Concerns of County Funding of Fire Services: 1. The interlocal agreement is a savings for the County due to the fact they paid the Mayhill-Cooper Creek an additional "emergency gram" each year ($25,000) for the maimenance of their equipmem. In addition, the City receives no "first responder" fees if the incident is a medical call because it has the ambulance agreement. The County has saved funds by this loophole in the comracts because they paid the Mayhill-Cooper Creek a first responder fee when the City's ambulance responded. This first responder fee should be paid to the City just as it was to Mayhill-Cooper Creek. The purpose of the contract is to provide services not to save the County expenditures. The costs to provide these services continue to increase with no increase in funding. The County Fire Chiefs Association has long complained of the inadequate funding. City of Demon residems unfairly subsidize County funding of fire responses by City Fire Department resources. City residents pay the same County taxes that unincorporated residems do who receive the services. City residems also subsidize the costs by paying City taxes to provide County services at less than full cost recovery. This ongoing imerlocal agreemem is often delayed in the County's legal approval process, which also includes review by the Demon County Fire Chiefs Association as well as approval by the Commissioners Court as part of their budget process. Even though the contract is usually approved after its starting date, the agreement still remains effective from October 1, 2004 with no reductions in revenues. 5. County funding is always a year behind in its determination of fees. Page 3 of 6 EXHIBIT 1 DETERMINING COMPANY COSTS FY2004/2005 Denton Fire Department Strategic Plan Personnel Costs: Hours worked in 1 year Hours worked in 1 yeademployee Minus sick leave Minus holiday Minus vacation Total Hours worked in 1 year Employees needed for 1 position Annual Total Compensation 1 Captain's Personnel Costs 8,760 2,912 (180) (108) (240) 2,384 4 (3.67) $98,000.00 365*24 56hrs/52 weeks 8, 760/2, 384 $392,000.00 $98,000*4 Hours worked in 1 year Hours worked in 1 yeademployee Minus sick leave Minus holiday Minus vacation Total Hours worked in 1 year Employees needed for 1 position Annual Total Compensation I Driver's Personnel Costs 8,760 365*24 2,912 56hrs/52 weeks (180) (108) (216) 2,408 4 (3.64) 8, 760/2,408 $83,532.00 $334,128.00 $83,532*4 Hours worked in 1 year Hours worked in 1 yeademployee Minus sick leave Minus holiday Minus vacation Total Hours worked in 1 year Employees needed for 1 position Annual Total Compensation I Firefighter's Personnel Costs 8,760 2,912 (180) (108) (192) 2,432 4 (3.60) $76,000.00 $304,000.00 365*24 56hrs/52 weeks 8, 760/2, 432 $76,000*4 Page 4 of 6 Support Costs: Total Budget Minus Operations Personal Costs Plus Command Staff Minus Revenues Minus Fire Prevention $13,926,578.00 $10,186,276.00 $547,916.00 $1,676,796.00 $533,771.00 TOTAL SUPPORT COSTS $2,077,651.00 PROPORTION = Calls (25%), Units (25%), People (SO%) # of Calls # of Units # of People Proportion Support Costs 4 engines 9.1% 9.1% 20.0% 38.2% $793,662.68 2 quints 4.3% 4.6% 13.4% 22.2% $461,238.52 1 truck 0.6% 2.3% 6.7% 9.5% $197,896.26 4 ambulances 11.0% 9.1% 10.0% 30.1% $625,372.95 Per Unit $198,415.67 $230,619.26 $197,896.26 $156,343.24 25.0% 25.0% 50.0% 100.0% $2,077,651.00 Page 5 of 6 Company Costs: Staffing of 3 Captain Driver Firefighter Engine Company Support Costs $392,000.00 $334,128.00 $304,000.00 $198,416.00 TOTAL 3-PERSON ENGINE COMPANY $1,228,544.00 Staffing of 4 Captain Driver Firefighters Engine Company Support Costs $392,000.00 $334,128.00 $608,000.00 $197,896.00 TOTAL 4-PERSON TRUCK COMPANY $1,532,024.00 Staffing of 4 Captain Driver Firefighters Engine Company Support Costs $392,000.00 $334,128.00 $608,000.00 $230,619.00 TOTAL 4-PERSON QUINT COMPANY $1,564,747.00 Staffing of 2 Driver $334,128.00 Firefighter $304,000.00 Ambulance Company Support Costs $156,343.00 TOTAL 2-PERSON AMBULANCE COMPANY $794,471.00 Page 6 of 6 AN ANALYSIS OF DENTON COUNTY LIBRARY FUNDING H I STORY The Denton Public Library has provided library services to all residents of Denton County since 1949 when the Library first opened as the Denton City-County Public Library. The Denton City-County Public Library served as the de facto library for the county until 1981 when the Denton City Council formally changed the library name to the Denton Public Library. In fiscal year 1985-1986, Denton County Commissioners Court developed the Denton County Library Advisory Board (DCLAB). The Board serves in an advisory capacity to the Commissioners Court in matters involving funding for public libraries in Denton County. There were 11 member libraries in 1985 from the following cities: Aubrey, Carrollton, Denton, Flower Mound, Krum, Lake Cities, Lewisville, Pilot Point, Roanoke, Sanger, and The Colony. As directed by the County Commissioners, the DCLAB developed a funding formula for fiscal year 1986-1987. This funding formula was based on a per capita distribution rate (see Attachment A) using the Texas State Library population formula applied to the 1986 North Central Texas Council of Government population figures. This funding formula also included a matching grant to every member library based on estimates of local funding and took into account in-kind contributions. The formula did not take into account the scope of services provided by the larger libraries, nor did it address the cost of providing the services to out-of-city library users. With planning well underway to build the first branch library in the City of Denton, newly appointed Director of Libraries, Eva Poole met with members of the Denton County Citizens Budget Advisory Committee in 1993 to request additional funding. This additional funding would have been used to assist the City of Denton in providing expanded library services to out-of-city residents who would be using the South Branch facility. As a result of Denton Public Library's request for additional funding, the County's Citizens Budget Advisory Committee met in September 1993 to discuss the City of Denton proposal. The Committee then charged the DCLAB to devise options for County funding that would more equitably divide funds allotted to libraries from Denton County. Betty McKean, Executive Director of Municipal Services for the City of Denton, then directed Eva Poole to act independently of the DCLAB and to develop several possible methods of redistributing the County funds. Poole presented five funding options to the Citizen's Budget Advisory Committee based on the following criteria: 1. Size of library 2. Amount of financial support by the local municipality and the degree to which each city subsidizes their library's budget through ad valorem taxes 3. Levels of library services provided such as hours of service, number of professional masters degree librarians, and staff size 4. Quantity of service provided such as total number of materials circulated 5. Number of un-served Denton county residents or the percentage of out-of- city usage at each library and number of cardholders The Citizen's Budget Advisory Committee discussed and proposed new funding formulas that would integrate these options during their many meetings held during the year. At their final meeting, the Citizen's Budget Advisory Committee members announced that after much deliberation, they had agreed to approve DCLAB's old funding formula, the distribution of per capita funding based on population plus a matching grant. Their decision was made without regard to program service delivery or service demand factors of the County's largest public library. City of Denton officials, including Mayor Euline Brock, former Council Members Roni Beasley and Sandy Kristoferson, have continuously tried to convince members of the Denton County Commissioners Court to increase the level of County funding for libraries, as the funding allocation does not allow the City of Denton to recover the cost of providing library services to out-of-city library users. On January 24, 2001, at the first joint meeting of the Denton City Council and Denton County Commissioner's Court, then City Manager Michael Jez was given the charge by then Denton County Judge Scott Armey to suggest a proposal for a new median per capita amount above the $1.25 allocated to all public libraries in Denton County. Using the per capita funding formula in place at that time, City of Denton Library administrative staff calculated the cost of services versus the amount of County funding received by each library. Using these figures, it was determined that the median shortfall was $2.10 per capita. The median per capita amount above the $1.25 allocated to all public libraries in the County would thus be $3.26. The proposed increase in funding was presented to the DCLAB at their March 15, 2001 meeting. The DCLAB voted unanimously to support the per capita funding increase as determined by the City of Denton Public Library. The $3.26 per capita amount was then reflected in the DCLAB funding request proposal due to the County's budget office on May 1, 2001. On June 2, 2001, an updated budget proposal was submitted to the County's Budget Director, Donna Stewart, after she stated that the original proposed increase to $3.26 per capita may be more than was feasible for the County to fund in the upcoming fiscal year. The DCLAB thus agreed to a phased approach to increase the per capita amount over a period of four years, beginning with an increase to $1.75 for FY 2002, and then increasing by $0.50 in each of the following years. As the City of Denton had every reason to believe that the County in FY 2002 would fund the phased approach, beginning with the $1.75 per capita, approximately $195,233 was budgeted in the City's FY 2002 budget as revenue for the Denton Public Library. On August 1, 2001, members of the DCLAB learned that the County would only fund the public libraries at the FY 2001 allocation of $1.25 per capita. Under this funding allocation, Denton Public Library would only received $142,309 for FY 2002. On August 10, 2001 Mayor Euline Brock formally submitted a letter to Judge Scott Armey requesting that in light of this critical shortfall, that the Commissioners reconsider the phased approach and allocate the $1.75 per capita funding request. They chose not to do so. Five years later, the same funding formula based on per capita population with a matching grant is still in place even though demands for library service in the County continue to increase with membership of the DCLAB now totaling 16 member libraries. The five new members libraries are Coppell, Justin, Little Elm, Piano, and Ponder. On November 17, 2003, members of the DCLAB received a letter from Denton County Judge Mary Horn stating "the taxpayers of Denton County have provided [library] funding at an excessive level for many years and certainly at an excessive level compared to other counties. Therefore, the time has come to begin eliminating this funding and I wanted to be sure you were given notice to begin planning for such a reduction." Judge Horn's plan to cut the County's support for libraries by more than $615,000 for FY 2004-2005 caused immediate controversy and a wave of newspaper articles and letters to the editors appeared in the Denton Record-Chronicle and other area media outlets. The Commissioners Court then held public hearings on April 13, 2004 and on April 20, 2004 for "discussion of a Library Funding Policy by the County Judge." Denton Library Board members and Friends of the Denton Public Libraries attended both public hearings and expressed their concerns regarding the loss of funding to the Denton Public Library. Dr. M. Jean Greenlaw, President of the Denton Friends group stated during the April 13, 2004 public hearing that library funding as a percentage of the County's FY 2003 budget was only 0.69% and that each County taxpayer spent only $3.97 in property tax for library funding. After the public hearings were held, the FY 20024-2005 County funding proposal issued by the Commissioners Court to members of the DCLAB was based on a per capita funding allocation of only $1.10 (see Attachment B). This decreased per capita amount had been approximately $1.25 since 2000. The matching grant of $10,000 was also eliminated to the largest libraries, Carrollton, Denton, Flower Mound, and Lewisville, and decreased to $5,000 for those public libraries serving Denton County, but mostly Collin County residents, Coppell, Frisco, and Piano. Once again, Denton County library users continue to enjoy all the benefits of the City of Denton Public Library without bearing the cost to do so (see Attachment C). OPTIONS UNDER CONSIDERATION As reductions from the Commissioners Court are again looming for FY 2006, during their upcoming meetings, the Denton Library Board will discuss the decision to accept or not accept County funding for FY 2006. Options (see Attachment D) have been outlined for the Board to consider during their discussions. ATTACHMENT A Denton County Library Funding History of Funding Rates 1995 - 2005 1994 - 1995 1995 - 1996 1996 - 1997 1997 1998 1998 - 1999 1999 -2000 2000 - 2001 1999 - 2000 2001 - 2002 2000 - 2001 2003 - 2004 2002 - 2003 2003 - 2004 2002 - 2003 2003 - 2004 2004 - 2005 Per Capita Matching $1 20 $1 20 $1 20 $1 20 $1 20 $1.20 $1 25 $1 25 $1 25 $1 25 $1 25 $1 25 $1 25 $1 25 $1.25 $1 lO $10,000 $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $1o,ooo $ o.oo $10,000 $ 5,000 - Denton and large libraries - small libraries - libraries serving split counties DENTON COUNTY LIBRARY ADVISORY BOARD 2004-2005 Funding Proposal Not including Roanoke ATTACHMENT B PER CAPITA $ 1.10 MATCHING $ 10,000.00 DENTON COUNTY POPULATION POPULATION OF CITIES WITH LIBRARIES REMAINING POPULATION 528,950 419,247 109,703 AUBREY 4,928 3,906 1,022 $ 5,421 $ 10,000 $ 15,421 CARROLLTON 79,674 63,150 16,524 $ 87,642 $ $ 87,642 COPPELL 754 598 156 $ 830 $ 5,000 $ 5,830 DENTON 115,001 91,150 23,851 $ 126,501 $ $ 126,501 FLOWER MOUND 74,880 59,350 15,530 $ 82,368 $ $ 82,368 JUSTIN 2,839 2,250 589 $ 3,123 $ 10,000 $ 13,123 KRUM 3,091 2,450 641 $ 3,400 $ 10,000 $ 13,400 LAKE CITIES 34,633 27,450 7,183 $ 38,096 $ 10,000 $ 48,096 LEWISVILLE 108,630 86,100 22,530 $ 119,492 $ $ 119,492 LITTLE ELM 20,250 16,050 4,200 $ 22,275 $ 10,000 $ 32,275 PILOT POINT 4,794 3,800 994 $ 5,274 $ 10,000 $ 15,274 PLANO 5,071 4,019 1,052 $ 5,578 $ 5,000 $ 10,578 PONDER 707 560 147 $ 777 $ 10,000 $ 10,777 SANGER 6,687 5,300 1,387 $ 7,356 $ 10,000 $ 17,356 THE COLONY 44,221 35,050 9,171 $ 48,644 $ 10,000 $ 58,644 Aubrey Population: Lake Cities Population: Aubrey 1,900 Corinth 16,900 Crossroads 603 Hickory Creek 2,250 Krugerville 903 Lake Dallas 6,550 Lincoln Park 500 Shady Shores 1,750 Total 3,906 27,450 Little Elm Population: Little Elm 14,000 Oak Point 2,050 16,050 U ATTACHMENT D COUNTY FUNDING - OPTIONS OPTION A. Accept County funding allocation for Library services at the same or reduced level. City of Denton residents (92,375) fund their libraries at approximately $40.31 per capita. Registered Denton County residents living outside the city limits with a Denton Public Library card (17,955) will receive the same library service for only $7.05 per capita. Residents of the City of Denton continue to subsidize library services to out- of-city users. If the City of Denton accepts County funding at the same amount of funding as received in FY 2004-2005, the Denton Public Library must provide a full array of library services, free of charge, to all residents who live outside the Denton city limits during the contractual year. The Denton Public Library would also have to accept any conditions deemed necessary by the Commissioners Court in order to receive the funding. OPTION B. Do not accept County funding. If the City of Denton does not accept county funding, the Denton Public Library will charge an equitable non-resident fee in an amount to be determined by the Denton Library Board and approved by City Council. The County budget process occurs after the City of Denton budget process has been completed forcing the Denton Public Library to merely "project" the actual funding allocation. An article appeared in the Saturday, December 4, 2004 Flower Mound Leader, titled, "Horn: No Internet filters, no county money." This edict takes control from local library boards acting on behalf of their communities to define and provide the service their communities have deemed valuable. Residents have access to public libraries located in 15 other cities and towns in Denton County. Denton Teen Court History The Denton Teen Court program provides young offenders an alternative to the juvenile justice system as a diversionary program for 10 to 17 year-olds charged with Class C Misdemeanor offenses. The early intervention aspect of teen court reduces the likelihood of recidivism or escalation to more serious crimes. The primary goal of teen court focuses on requiring offenders to be accountable for their actions and accepting their guilt. The teen court process allows teens to be judged by their peers, which includes determination of the consequences for their behavior. These consequences may be sentences of: · Working a number of community service hours. · Visits to a local youth correctional facility. · Serving terms of duty as a Teen Court participant. Through this program: · 142,187 community service hours have been provided to charitable institutions. · 24,807 community support volunteer service hours have been provided. · 2,658 juvenile offenders have successfully completed the program. The Denton Teen Court held its first session in September of 1995. The first year of the program was equally funded by the City of Denton, Denton County and the Denton Independent School District (Attachment A). The following five years were funded by a 5-year grant (Title V) available through the Criminal Justice Division, Office of the Governor, State of Texas. The Title V Grant ended in March 2002 with the remainder of the year equally funded by the City and the County. Again, in the 2002-03 fiscal year, Denton County and the City equally shared the cost of the program. In 2003-04 and 2004-05 the City received a Juvenile Accountability Incentive Block Grant (JAIBG) from the Criminal Justice Division. To date, over $336,000 of grant funding has supported the program over the last nine years. On Tuesday, August 10, 2004 the Denton County Commissioner's Court elected to discontinue funding their portion of the program. Until that time cases from all areas in Denton County were accepted. The Criminal Justice Division has recently informed us that future grant funding will not be available. Attachment B Program Awards and Recognitions · February 8, 1998, America's At-Risk Youth National FORUM, recognized the organization as a National Model Program. · February 8, 1998, The National Dropout Prevention Network, recognized the organization as a National Model Program. · June 12, 1998, The National Coalition for At-Risk Children and Youth, recognized the organization as a National Model Program. · October 16, 1998, the Youth Institute of San Antonio, recognized the organization as a National Model Program. · February 19, 1999, The 12th Annual Texas Juvenile Law Conference, presented the organization as a State Model Program. · June 18, 1999, The National Coalition for At-Risk Children and Youth, recognized the organization as a National Model Program for a second year. · September 28, 1999, The international Conference on Children and Youth, recognized the organization as an International Model Program. · September 30, 1999, The Council for Children with Behavioral Disorders, Third International Conference, recognized the organization as an International Model Program. · December 6, 1999, the National Dropout Prevention Network, recognized the organization as a National Model Program for a second year. · February 11, 2000, the Texas Association for Alternative Education, recognized the organization as a State Model Program. · June 16, 2000, The National Coalition for At-Risk Children and Youth, recognized the organization as a National Model Program for the third consecutive year. · June 8, 2001, The National Coalition for At-Risk Children and Youth, recognized the organization as a National Model Program for the third year. · June 30, 2001, The international Conference on Children and Youth recognized the organization as an International Model Program for a second time. · April 15, 2002, The United States Department of Justice, Office of Justice Programs, recognized the organization for it's outstanding Teen Courts Program. Selected as one of the Top 10 Teen Courts in the United States by the U.S. Attorney General. · May 2003, The United States Department of Justice, Office of Justice Programs, recognized the organization for it's outstanding Teen Courts Program. Selected as one of the Top 10 Teen Courts in the United States by the U.S. Attorney General. · February, 2004, the Texas Association for Alternative Education, recognized the organization as a State Model Program. · April 2004, American Parole and Probation Association recognized the organization for its community service efforts. · May 2004, Fifteen Denton Teen Court Attorneys received President Services Awards from President Bush. Attachment C JUVENILE DIVERSIONARY SERVICES OF DENTON, INC. 2003-2004 BOARD OF DIRECTORS Presidem: Judge Barbara Gailey, Tel: (940) 390-4848 Email: BarbaraGaile¥~BarbaraGaile¥.com 3712 N. Elm Denton, Texas 76201 Vice Presidem: Virginia Gallian, Tel: (940) 387-5767 Email: vgallian~demonisd.org 1119 Ridgecrest Circle Denton, Texas 76205 1 st Vice Presidem: Donna Rowbotham, Tel: (940) 349-8142 Email: dlrowbot~cityofdemon.com 601 E. Hickory Suite D Denton, Texas 76205 2nd Vice Presidem: Coach Johnny Jones, Tel: (940) 565-3654 Email: jones~um.edu P.O. Box 311397 Denton, Texas 76203 Treasurer: Claudia Brown, Tel: (940) 565-0508 Email: wiferlf~hotmail.com 315 Ridgecrest Denton, Texas 76205 Executive Director: Roland Jones, Tel: (940) 349-7809 Email: rxj ones~cityofdenton.com P.O. Box 1134 Denton, Texas 76202 Judge Robin Ramsay, Tel: (940) 349-8139 Email: robin_ramsay~cityofdemon.com 601 E. Hickory Suite D Denton, Texas 76205 Judge Joe Bridges, Tel: (940) 320-4816 Email: Joe.Bridges~demoncounty.com 127 N. Woodrow Lane Denton, Texas 76205 Judge Mike Bateman, Tel: (940) 349-3464 Email: mike.bateman~demoncounty.com 205 North 5th Sanger, Texas 76266 Judge Vic Burgess, Tel: (940) 484-8578 Email: vicburgess~hotmail.com 1504 E. McKinney Denton, Texas 76205 Elizabeth Parmer, Tel: (940) 565-8556 Email: Libby.parmer~cemoncounty.com 1450 E. McKinney 3rd Floor Denton, Texas 76205 Doug Boydston, Tel: (940) 349-8239 601 E. Hickory, Suite D DeNon, Texas 76205 Mike Ballard, Tel: (940) 365-9932 Baseline Road Aubrey, Texas 76227 Steve Burgess, Tel: (940) 484-8578 Email: steveburges~hotmail.com 1504 E. McKinney Denton, Texas 76205 Carianne Lovelace, Secretary, Tel: (940) 458-5674 Email: carilove2~aol.com P.O. Box 39 Sanger, Texas 76266 Lisa Cooke, Tel: (817) 491-9387 Email: Lisa. Cooke~tyc.state.tx.us 3505 Haynes Road Roanoke, Texas 76262 Roy Davenport, Tel: (940) 898-5600 Email: roydavenport~demonco.com 127 N. Woodrow Lane Denton, Texas 76205 Cymhia Easley, Tel: (940) 382-5328 ext 15 1512 Scripture Demon, Texas 76201 AGENDA INFORMATION SHEET AGENDA DATE: March 22, 2005 DEPARTMENT: CM/DCM/ACM: Fire Jori Fortune, Assistant City Manager SUBJECT Receive a report, hold a discussion, and give direction regarding the Fry Street Fair. BACKGROUND A proposal to increase the size of the Fry Street Fair was presented to city staff by the Delta Lodge representatives in 2002. Staff reviewed their plan with comments on the public safety aspects of the plan. The Delta Lodge representatives made the decision that they could not meet the requirements for the permit and moved their event to Dallas. The Fry Street Fair has been held in the Deep Ellum district of Dallas for the past few years. The Delta Lodge is now proposing having the Fry Street Fair on April 23, 2005 at its original location on Fry Street in Denton. Representatives from the Lodge met with staff on February 28, 2005 where a preliminary plan was presented. Staff provided comments relating to the review of the proposed plan. A meeting was scheduled for Monday March 7~h 2005 to discuss the public safety aspects of their plan for the 2005 Fry Street Fair. Representatives from the Delta Lodge cancelled the meeting. Another meeting was scheduled for Friday, March 11, 2005. Representatives from the Delta Lodge failed to show up for the meeting. After inquiries to the Lodge, Staff met onsite with Delta Lodge representatives that afternoon. Staff and Lodge members shared ideas as to how the event could occur on Fry Street. Staff encouraged the Lodge to set other meetings to discuss their public safety plan. They were advised that their public safety plan and permit application must be received by the City of Denton thirty (30) days prior to the event. The Fry Street Fair is considered an outdoor event that shall be permitted under section 105.6.4 of the international Fire Code (iFC). The iFC Chapter 4, Section 403.1 through 403.2 requires that the promoter of the event submit a public safety plan. The public safety plan must address such items as emergency vehicle ingress and egress, fire protection, emergency medical services, public assembly areas and directing of both attendees and vehicles (including the parking of vehicles), vendor and food concession distribution, and the need for the presence of law enforcement, and fire and emergency medical services personnel at the event. The international Building Code, (IBC) in Chapter 10, Section 1003.2.2.10, allows for a maximum of 1 person for every five (5) square feet in an outdoor fenced area such as the Fry Street Fair proposes. The public safety plan shall include occupant load limits for areas that are fenced or where tents are provided. The amount of fire protection, emergency medical services, law enforcement and parking is determined by the size of the event area and number of attendees. Consideration should be given for the impact that this event will have on the surrounding area. For example, the closure of Fry Street and off site parking issues will cause the closure of Hickory Street. The closure of Hickory Street will cause the closure of Ave A and Mulberry Street at Welch. The requirements related to the permitting of this event have been discussed with the representatives of the Delta Lodge. After they have satisfied the permit requirements they will receive onsite inspections prior, during and after the event. These inspections ensure that there is a reasonable degree of life safety involved in the event. Challenges do exist related to the location of buildings, existing businesses, parking, location of vendors, stages and pedestrian traffic. A well-designed and executed public safety plan can overcome these challenges. City staff including, Fire, Police, Parks and Utilities are ready to assist in a safe and successful "Fry Street Fair" in 2005. FISCAL INFORMATION: The fiscal impact of this event will include overtime costs associated with the hiring of off duty Police Officers, Paramedics and Utilities workers. Other fiscal impacts will include the staffing increases of Public Safety Dispatchers and Municipal Court Employees. The University of North Texas will incur fiscal impact with their involvement. Respectfully submitted: Rick Jones Fire Marshal Charles Wiley Police Chief Ross Chadwick Fire Chief AGENDA INFORMATION SHEET AGENDA DATE: March 22, 2005 DEPARTMENT: CMO ACM: Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an Ordinance of the City of Demon, Texas authorizing the Mayor to execute an Interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas regarding the use of the rights of way for Denton County's Fiber Optic System; and providing an effective date. BACKGROUND The City of Denton has an agreement with the Denton Independent School System (DISD) for use of the City rights of way for a Fiber Optic Network. Demon County has entered into an agreement with DISD to use part of the DISD Fiber Optic Network or to place a fiber optic cable into the DISD conduit for transportation education, administrative and other Denton County communication purposes. This interlocal agreement allows the use of the City's rights of way to accomplish this governmental purpose. OPTIONS 1. The City Council may pass the resolution or direct staff to add or delete certain provisions and then pass the resolution; or 2. The City Council may decline to adopt the resolution. FISCAL IMPACT Demon County will pay a one-time fee of $3,500 for use of the City rights of way and will cominue to participate in currem and future road projects. S:\Our DocumentsXOrdinancesX05\Denton Co F~ber Optic Inteflocat Ag~-eement doc ORDINANCE NO. 2005- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON COUNTY, TEXAS REGARDING THE USE OF THE RIGHTS OF WAY FOR DENTON COUNTY'S FIBER OPTIC SYSTEM; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton has an agreement with the Denton Independent School District, (DISD), for use of the City rights of way for a Fiber Optic Network. Denton County has entered into an agreement with DISD to use part of the DISD Fiber Optic Network or to place a fiber optic cable into the DISD conduit for transportation education, administrative and other Denton County communication purposes; and WHEREAS, the Interlocal Cooperation Act, now contained in Chapter 791 of the Texas Government Code (Vernon 1994), authorizes the CITY and Denton County to enter into an Interlocal Agreement for the purpose of achieving the governmental functions and providing the services represented by Denton County use of City rights of way, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the Mayor, or in her absence, the Mayor Pro-Tern, is hereby authorized to execute, on behalf of the City Council of the City of Denton, Texas, an Interlocal Cooperation Agreement between the City of Denton, Texas and Denton County, Texas for the use of the rights of way for Denton County fiber optic system, which InterlocaI Cooperation Agreement is attached hereto and incorporated by reference herein. SECTION 2. This Ordinance shall become effective inunediately upon its passage and approval. PASSED AND APPROVED this the ~dayof .,2005. EULINE BROCK, MAYOR S:\Our Documents\Ordinances\05XDenton Co Fiber Optic lnterlocal Agreement.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 of 2 INTERLOCAL AGREEMENT BETWEEN DENTON COUNTY AND THE CITY OF DENTON FOR USE OF THE CITY OF DENTON RIGHTS-OF-WAY FOR DENTON COUNTY FIBER OPTIC NETWORK THIS AGREEMENT is made and entered into by and between the COUNTY OF DENTON (hereinafter "County"), organized and existing under the laws of the State of Texas and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation (hereinafter "City"), acting by and through, and under the authority of their respective governing bodies; and WHEREAS, the County and City are local government entities both of whom have the authority to perform the services set forth in the Agreement individually and who mutually desire to enter into an interlocal agreement, as provided for in Chapter 791 of the Texas Government Code (Vernon 1994) in order to maximize the benefits derived from each taxpayer dollar; and WHEREAS, the lnterlocal Cooperation Act, now contained in Chapter 791 of the Texas Government Code (Vernon 1994), authorizing the County and City to enter into this Agreement for the purpose of achieving the governmental functions and providing the services represented by this collective, cooperative undertaking; and, WHEREAS, the City and the County have participated together in many projects and desire to continue to work together and participate with the City in many current and future projects; including but not limited to Brinker Road, Loop 288, Bonnie Brae Road, and future projects for FM designations, such as Mayhill Road, and enter into this Agreement as part of this continued effort to work together. NOW, THEREFORE, the County and the City, for an in consideration of the premises and the mutual covenants set forth in this Agreement, does hereby grant unto Denton County the permanent use of certain public easements pursuant to the following terms and conditions: 1. COMPENSATION go County shall pay to City upon execution of this Agreement, a one time payment of $3500.00 as good and valid consideration for this Agreement, given the history between the parties and the public purpose served by this Agreement, for the permanent use of certain public easements as described in this Agreement. County may construct a subsurface optical telecommunications line in conjunction with Denton Independent School District's construction of its system, which is to be part of the County's total communications network, ("the facility"). The facility and its use are described as follows: a. The facility shall consist of a fiber optic cable placed within a Conduit which shall be installed using directional boring technology to minimize surface disturbance in accordance with City code requirements as a separate conduit(s) in addition to or as in piggyback with the conduit(s) previously authorized by the City to be installed by the Denton Independent School District in a previous agreement with the City. b. The facility is to be used exclusively for transportation, educational, administrative and other County communication purposes by the County. Such uses include, but are not limited to, voice communications, data transfer and video. All uses may be upgraded or added to as new technologies develop. c. The facility shall remain a private network used as described above. It is not to be offered to the general public as a utility or a device to generate revenue or profit. d. The Denton County conduit and cable shall connect to the Denton County network switch at the Denton County Courts Building, 1450 E. McKinney Street in Denton County, Texas, and other facilities designated by Denton County, and continue generally eastward along the routes used by Denton Independent School District, to the area of Mayhilt Road, where it shall join a conduit running generally north and south along Mayhilt Road, and in other locations or routes as shown on Exhibit A. The Conduits shall be installed at approximately the same time as the Conduits are installed by the Denton Independent School District ("DISD".) The County may install and maintain said fiber optic cable and equipment at any time during the term of this Agreement. This Agreement is granted subject to the following additional conditions, terms and reservations: a. This Agreement is subject to any existing utilities or communications facilities, including drainage, presently located within the licensed area, owned and/or operated by the City or any utility or communications company, public or private, and to any vested rights presently owned by a utility or communications company, public or private, for the use of the license area for facilities presently located within the boundaries of said licensed area. b. The City reserves the right, subject to further conditions described in the paragraph, to lay and permit to be laid, sewer, gas, water, and other pipelines or cables and conduits, and to do and permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the governing body of the City, on, across, along, over or under any public right of way occupied by Denton County, and to change any curb or sidewalk or the grade of any street. City shall provide the County with written notice of at least sixty (60) days prior to any such action. If the City reasonably requires Denton County to remove, alter, change, adapt, or conform its facilities because of changes in the grade of the street or in the location or manner of construction of a water pipe, sewer pipe, or other underground or aboveground structure owned by the City, County shall make the alterations or changes as soon as practicable when ordered in writing by the City, without claim for reimbursement or damages against the City. If these requirements impose a financial hardship upon the County, County shall have the fight to present and implement alternative proposals upon consent of thc City. This Agreement is subject to any existing utility or communications facilities, public or private, including drainage, presently located within the licensed area, owned and or operated by the City or any utility or communications company, public or private, and to any vested fights presently owned by any utility or communications company, public or private, for the use of the area for facilities presently located within the boundaries of the licensed area. It is the intent to the foregoing that the permission herein is made expressly subject to the utilization of the licensed area for communication and public utility purpose, including drainage, over, under, through, across and along the licensed area. o County is prohibited from using the subject area in any manner which violates Federal, State or local laws, regulations, rules and orders, regardless of when they become effective, including without limitation, those related to health, safety, noise, environmental protection, waste disposal, and water and air quality, and shall provide satisfactory evidence of compliance upon request by the City. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or from the licensed area due to County's use and occupancy thereof, County, at its expense, shall be obligated to clean up the licensed area to the satisfaction of the City and any governmental body having jurisdiction there over. o City does hereby license and demise, subject to the foregoing terms and provisions, the property depicted on Exhibit "A", herein above referred to as the "premises", which is attached hereto and made a part hereof. o This Agreement is subject to all State laws, the provisions of the Charter of the City of Denton as it now exists, or may hereafter be adopted or amended, and the ordinances of the City of Denton now in effect or those which may hereafter be passed or adopted. o This Agreement embodies the complete agreement of the parties, superseding all oral or written previous and contemporary agreements between the parties and relating to matters in this Agreement cannot be modified without written agreement of the City and County to be attached and made a part of this Agreement. Any Notice under this Agreement shall be in writing and shall be delivered by certified mail, return receipt, and direct as follows: For City: Mike Conduff, City Manger City of Denton 2 ! 5 E. McKinney Street Denton, Texas 76201 For County: Honorable Mary Horn Denton County Judge 110 East Hickory Denton, Texas 76201 Copy to: District Attorney's Office/Civil Division 1450 East McKinney P.O. Box 2850 Denton, Texas 76202 Copy to: City of Denton City Attorneys Office 215 E. McKinney Denton, Texas 76201 This Agreement is not intended to extend the liability of the parties beyond that provided by law. Neither County or City waivers, not shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims arising by third parties. The parties to this Agreement agree that the exchanges and permitted uses described in this Agreement constitute payments in amounts that fairly compensate the other party for the services and functions performed under this Agreement. Further, the parties to this Agreement stipulate and agree that the parties paying for the performance of the governmental functions or services will make these payments from current revenue available to that party. 10. No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this section will not be waived unless as herein set forth. 11. In the event that any one or more of the provisions hereof concerning the subject matter of this Agreement should be held by a court or administrative agency of competent jurisdiction to be illegal, invalid or unenforceable in any respect, the parties agree to make a good faith effort to renegotiate another agreed provision to fulfill the purpose and intent of the present Agreement. 12. This Agreement shall be construed under and govemed by, and in accordance with the laws of the State of Texas, and all obligations of the parties hereto, created by this Agreement are performable in Denton County, Texas. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. 13. This Agreement and the exhibits attached thereto, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. No amendment, modification, cancellation or alteration of the terms of this Agreement shall be binding on any party hereto unless the same is in writing, dated subsequent to the date hereof, and is duty executed by the parties hereto. 14. The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. 15. This Agreement is entered into by the duly authorized officials of each respective goverranental entity. EXECUTED in triplicate originals on this the __ day of ., 2005 by Denton County, Texas. DENTON COUNTY 110 West Hickory Denton, Texas 76201 By: Hon. Mary Horn, Denton County Judge Date: Acting on behalf and by the authority of the Commissioners Court of Denton County, Texas. ATTEST: BY: Denton County Clerk APPROVED AS TO LEGAL FORM: BY: Assistant District Attorney EXECUTED in triplicate originals on this the __ day of by the City of Denton, Texas. cITY OF DENTON 215 E. McKinney Denton, Texas 76201 By: Hon. Euline Brock, Mayor Date: Acting on behalf and by the authority of the City of Denton, Denton County, Texas. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ,2005 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 22, 2005 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Tom Shaw 349-7100 SUBJECT An Ordinance authorizing the City Manager to accept an Interlocal Agreement with Mustang Special Utility District to authorize participation in various City of Denton contracts for the purchase of various goods and services; authorizing the expenditure of funds therefore; and declaring an effective date (File 3321-Imerlocal Agreemem with Mustang Special Utility District). INTERLOCALAGREEMENT INFORMATION The Interlocal Cooperative Act, V.T.C.A. Government Code Chapter 791, authorizes respective participating governments to enter into joint contracts and agreements for the purchase of necessary materials, supplies, and services. Over the past several years, the City of DeNon and other entities have entered into cooperative purchasing agreements that have been highly beneficial to the taxpayers through anticipated savings. The attached agreement is an authorization of the Mustang Special Utility District to participate in contracts awarded by the City of Demon and will remain in effect umil terminated by either party. This Interlocal Agreement will allow the Mustang Special Utility District to utilize contracts for supplies and services competitively bid by the City of DeNon, Texas. ESTIMATED SCHEDULE OF PROJECT This agreemem is effective upon approval by the City of Demon, Texas and will remain in effect until terminated by either party. RECOMMENDATION Approve the Imerlocal Agreemem between the City of DeNon and Mustang Special Utility District. FISCAL INFORMATION Each acquisition, based on this agreemem, will be funded by the Mustang Special Utility District and will have no impact on the City of DeNon. Agenda Information Sheet March 22, 2005 Page 2 1-AlS-File 3321 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ACCEPT AN INTERLOCAL AGREEMENT WITH MUSTANG SPECIAL UTILITY DISTRICT TO AUTHORIZE PARTICIPATION IN VARIOUS CITY OF DENTON CONTRACTS FOR THE PURCHASE OF VARIOUS GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND DECLARING AN EFFECTIVE DATE (FILE 3321-INTERLOCAL AGREEMENT WITH MUSTANG SPECIAL UTILITY DISTRICT). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute the attached Interlocal Agreement, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2005. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~:::':' :'~ ~.,, 'i 2-ORD-Interlocal Agreement With l(/[u~/hg ~pecial Utility District A£ tach~ent 1 INTERLOCAL COOPERATIVE PURCHASING AGREEMENT BETWEEN CITY OF DENTON AND~ MUSTANG SP!~CIAL UTILITY DISTRICT. STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made on the day of ,2005I'' between the City of Denton, State of Texas, and; Mustang 'Special Utility District refcrrea to herein as participating governments. WHEREAS, the respective participating governments are authorized by the Interloeal Cooperation Act, V.T.C.A. Government Code, Chapter 791, to enter into joint contracts and agreements for the performance of governmental functions and services including administrative functions normally associated with the operation of government such as purchasing of necessary materials and supplies; WHEREAS, it is the desire of the aforesaid participating governments to comply with and further the policies and purpose of the Intertocal Cooperation Act; WHEREAS, the participating governments cannot normally obtain the best possible purchase price for materials and supplies acting individually and without cooperation; and WHEREAS, it is deemed in the best interest of ail participating governments that said governments do enter into a mutually satisfactory agreement for the purchase of certain materials and supplies; WttEREAS, the parties, in performing governmental functions or in paying for the performance of governmental functions hereunder shall make that performance or those payments from current revenues legally available to that party; NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and conditions contained herein and pursuant to the authority permitted under the Interlocal Cooperation Act, promise and agree as follows: PIIrpos¢ The purpose of this Agreement is to authorize participation of the Mustang Special Utility District in various City of Denton contracts for the purchase of various goods and services. Participation in this cooperative program will be highly beneficial to the taxpagers of the City of Denton through anticipated savings to be realized. INTERLOCAL COOPERATIVE PURCHASING AGREEMENT II. Duration of Agreement This Agreement shall be in effect from the date of execution until terminated by either party to the agreement. Relationship of Parties It is agreed that Mustang Special Utility District, in- receiving products and/or services specified in this agreement, shall act as an independent purchaser and shall have control of its needs and the manner in which they are acquired, l~ttheahe Mustang Special Utility District, its agents, employees, volunteer help or any other person operating under this contract shall be considered an agent or employee of City of Denton and shall not be entitled to participate in any pension plans or other benefits that City of Denton, Texas provides its employees. City of Denton, Texas shall notify all participating entities of available contracts to include terms of contract, commodity cost, contact names and addresses. City of Denton, Texas shall keep participating governments informed of all changes to the Cooperative Purchasing list of contracts. Nothing in this agreement shall prevent any participating government from accepting and awarding bids for commodities subject to this agreement individually and in its own behalf, Laura Haynie, Purchasing Agent is hereby designated as the official representative to act for the Mustang Special Utility District in all matters relating to this agreement. Purchase of Goods and Services All products and services shall be procured by City of Denton, Texas in accordance with procedures governing competitive bids and competitive proposals. The participating government will be able to purchase from those contracts established by City of Denton, Iexas where notice has been given in the specifications and successful bidder has accepted terms for Cooperative Pureeing Agreements for local governments. The participating governments hereto agree that the ordering of products and services through this agreement shall be their individual responsibility and that the successful bidder or bidders shall Nil each participating government directly. iNTERLOCAL COOPERATIVE PURCHASING AGREEMENT Purchase of Goods and Serviees (Continued) The participating governments agree to pay successful bidders directly for all products or services received from current revenues available for such purchase. Each participating government shall be liable to the successful bidder only for products and services ordered by and received by it, and shall not by the execution of this agreement assume any additional liability. City of Demon, Texas does not warrant and is not responsible for the quality or delivery of products or services from successful bidder, The participating govemmem shall receive ali warranties provided by successful bidder for the products or sexvices purchased. In the event that any dispme arises between individual participating government and a successful bidder, the same shall be handled by and between the participating government body and the bidder. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their authorized officers thereon the day and the year first above written. Mustang Special Utility District, TEXAS By.~ZB~y Ge }n ~ ~aines, eral Manager CITY OF DENTON By: Michael A, Conduff City Manager ATTEST:. JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO_~LEGAL FORM: HERBER~~TTORNEY BY: ~ v /' AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 22, 2005 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Tom Shaw 349-7133 SUBJECT Consider adoption of an Ordinance authorizing the financing for the purchase of three self check machines for the Denton Public Library System through a lease purchase financing agreement; providing for the expenditure of funds therefore; and providing an effective date (File 3314- Lease Purchase of Self Check Machines approximate finance charges of $4,376.56). LEASE/PURCHASE ORDER INFORMATION This third party lease purchase financing agreement is for the funding of three self check machines for the Emily Fowler Library. The lease period will be for three years with 36 monthly payments of $2,060.46 including principal and interest. The machines will become the property of the City of Denton at the end of the lease period. Chapter 271 Subchapter A Section. 005c of the Texas Local Government Code exempts the acquisition of third party lease purchase financing from the competitive bid process. However, staff did solicit competitive proposals with rates varying from 4.15%APR to the low of 3.99% APR. Approval of this agreement is for funding only. Council will consider the approval of the purchase of the self check machines as a separate item on the March 22, 2005 agenda. This agreement is intended to make funds available for future acquisitions. RECOMMENDATION Award to Chase Equipment Leasing Inc. (formerly Bank One) at an effective rate not to exceed 3.99% with an estimated cost of financing in the amount of $4,376.56. PRINCIPAL PLACE OF BUSINESS Chase Equipment Leasing Inc. Dallas, TX ESTIMATED SCHEDULING OF PROJECT Funds will be available upon Council approval and will be dispersed as equipment is received. Payments will be made monthly throughout the three-year agreement period. Agenda Information Sheet March 22, 2005 Page 2 FISCAL INFORMATION The finance charges or interest in the approximate total amount of $4,376.56 will be paid as a portion of the monthly payments. The total amount of the lease is approximately $69,800 and will be paid from budgeted equipment acquisition funds of the Emily Fowler Library renovation project. Financed Amount Finance Charges Total Payback $69,800.00 Approx. $ 4,376.56 Approx. $74,176.56 Approx. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Proposal from Chase Equipment Leasing 1AlS-File 3314 CHASe Attachment 1 8111 Preston Road Dallas, Texas 75225 February 14, 2005 Mr. Tom D. Shaw, C.P.IVl. Purchasing Agent City of Denton 901 B Texas Street Denton, TX 76201 RE: Tax-exempt Lease-Purchase Proposal Dear Mr. Shaw: Chase Equipment Leasing Tnc. ("CELT"), and Bank One, collectively ]P Morgan Chase & Co., for itself, its successors, and assigns, is pleased to submit this financing proposal to the City of Denton (the "Lessee"). This letter is a proposal only and is contingent upon the Lessee's compliance with the requirements of the Tnternal Revenue Code of 1986, as amended, and all applicable state laws related to Lessee's ability to enter into a tax-exempt lease-purchase financing for the intended purposes. The terms and provisions of this financing are subject to credit and business approval in accordance with _IP Morgan Chase & Co's internal procedures, as well as certain conditions set forth below: TRANSACTION: LESSEE: LESSOR: ESTIMATED FINANCING AMOUNT: BANK QUALIFIED: USE OF PROCEEDS/TITLE: SECURITY: Fixed-rate, fully amortizing, privately placed tax- exempt lease-purchase agreement ("Agreement") with $1.00 buyout at end of term. City of Denton, TX Chase Equipment Leasing Tnc. $69,800.00 This proposal assumes that Lessee will not issue less than $10 million in tax-exempt obligations this calendar year and that the Lessee will designate this lease as a "non-qualified" tax-exempt obligation. To finance the acquisition of library scanners, the legal titles of which, if applicable, shall vest in the Lessee during the term of the Agreement. CELT shall obtain a lien on the financed equipment. The Agreement shall be subject to annual appropriation. EXPECTED FINANCING TERM: Three (3) Years City of Denton February 14, 2005 Page 2 PAYMENT MODE/FREQUENCY: PROPOSED INTEREST RATE: PROPOSED LEASE PAYMENTS: Payments shall be made monthly in arrears. 3.99% Thirty-six (36) payments of $2,060.46 INTEREST RATE LOCK: DOCU M E NTATIO N: PROPOSAL EXPIRATION: The above proposed Interest Rate and Financing Payments are valid through and including February 28, 2005. If bid acceptance not occur on or before such date, the proposed interest rate and financing payments are subject to adjustment to reflect changes in market conditions. CELI or its counsel shall prepare Documentation. This proposal will expire if bid acceptance does not occur by February 28, 2005. If acceptance has not occurred by this date, the Financing Rate and Payment Amounts will be adjusted according to market conditions. This proposal is subject to credit and documentation approval at JP Morgan Chase & Co's sole discretion. To render a credit decision, Lessee shall provide CELI with three (3) years of audited financial statements, a copy of the budget for the current fiscal year and other information as may be requested by CELI's Municipal Credit Group. We appreciate your interest in Chase Equipment Leasing Inc. and look forward to your favorable response. Should you have any questions regarding this proposal or need additional information, please contact me at 614/213-9561 or via email at john_pelzer@bankone.com. Sincerely, Chase Equipment Leasing Inc. ]ohn Pelzer Leasing Inside Sales ORDINANCE NO. AN ORDINANCE AUTHORIZING THE FINANCING FOR THE PURCHASE OF THREE SELF CHECK MACHINES FOR THE DENTON PUBLIC LIBRARY SYSTEM THROUGH A LEASE PURCHASE FINANCING AGREEMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3314-LEASE PURCHASE OF SELF CHECK MACHINES APPROXIMATE FINANCE CHARGES OF $4376.56). WHEREAS, included in the budget process for the renovation of the Emily Fowler Library, the Council authorized the sole source acquisition of three self check machines from 3M Corporation pursuant to Chapter 252 of the Texas Local Government Code in the estimated principal sum of $69,800; and WHEREAS, Section 271.005 of the Local Government Code authorizes the City Council, in its discretion, to contract for the financing of personal property; and WHEREAS, the City Council finds that the herein authorized financing of the budgeted equipment through a lease purchase agreement with Chase Equipment Leasing Inc. is appropriate and in the public interest; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be expended for the herein authorized lease purchase agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby authorizes a lease purchase agreement to finance the acquisition of three self check machines with Chase Equipment Leasing Inc., said agreement providing for a financed amount of $69,800 having thirty six monthly payments of approximately $2,060.46 with an effective rate of not to exceed 3.99% over 3 years. SECTION 2. The City Manager, or the Purchasing Agent as his designee, is authorized to enter into a lease purchase agreement on behalf of the City in accordance with the terms set forth in Section 1 and to expend the funds provided for in Section 1. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY 3-ORD-File 3314 (.~/ ~' Page 2 of 2 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 22, 2005 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Eva Poole 349-8750 SUBJECT Consider adoption of an Ordinance approving the expenditure of funds for the purchase of three self check machines for the Demon Public Library System available from only one source in accordance with the provision for state law exempting such purchases from requirements of competitive bids; and providing an effective date (File 3313-Purchase of Self Check Machines for the Denton Public Library System awarded to 3M Library Systems in the amount of $69,440). BID INFORMATION This acquisition is for the 3M Digital Self Check System V-3 Series, which is an advanced, fully featured patron check out/check in system that processes items with barcodes or digital ID tags. This equipment will allow patrons to process materials themselves, both quickly and privately. All three machines will be placed in the Emily Fowler Library once the renovation project has been completed. 3M is the developer and manufacturer of the 3M Self Check System and therefore, the sole source. The company has patents on certain parts of the system technology including the ability to detect and process material protected by 3M Tattle-Tape Strips. Service contracts and warranties for the system are based on the correct usage with 3M Tattle-Tape strips. Sole source supplies and/or services protected by copyrights or patents are exempt from the competitive bid process (Chapter 252 Texas Local Governmem Code). The 3M Digital Self Check System is curremly installed in the North and South Branch Libraries. Therefore, the Emily Fowler Library self check system is required to be compatible with the other self check out units which already utilize the 3M barcodes and ID tags. There is no other product on the market that is compatible with the current system in place. RECOMMENDATION Award the purchase of three self check machines to 3M Library Systems in the amount of $69,440. PRINCIPAL PLACE OF BUSINESS 3M Library Systems St. Paul, MN Agenda Information Sheet March 22, 2005 Page 2 ESTIMATED SCHEDULE OF PROJECT The self check machines will be installed at the completion of the Emily Fowler Library renovation. FISCAL INFORMATION The purchase of the machines will be funded by a third party lease through Chase Equipment Leasing Inc. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: 3MQuote Attachment 2: Sole Source Letter 1-AlS-File 3313 ~tta~l~e~t 1 laterials Flow Management stems Proposal 75-0299-6230-7 (Form 34050 - B - PWO) 3M Library Systems P.O. Box 33682 St. Paul, MN 55133-3682 1-800-328-0067 ext. 2 Fax 1-800-223-5563 3enton Public Library Contact Name Eva Peele Phone Number 940 349 7735 Address City, County, State. Zip Denton, TX 76201 Number 40 349 8260 Purchase Order # 6.ut hot, zed By Date Mail To: 3M Library Systems P.O. Box 33682 St. Paul, MN 55133-3682 orF~x To: Fax 1-800-223-5563 Product Description Quantity Unit Price Install Price Item Price ¥-3 Series RF~D SelfCheck 3 $22,980.000 $68,940.00 flncludes Cabinet with laminate top and $0.00 36 month wa[[anty ........... $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $o.oo $o.oo $0.00 $0.00 Subtotal Equipment and Markers $68,940.000 $0.00 $68,940.00 Service Agreement Duration/ [otal Unit Price $68,940.00 Equipment Zone Qty Months Unit Price ......... Jnit Tax I $0.00 nstall Charge included Install Tax r $0.00 Service Agreement included Freight $500.00 Total Proposal $69,440.00 Subtotal Service $0.00 Other Information 3M Representative Iignature ~hone ~ate Shawn Brumley 8003280067 x 3 Option 28 12f2/04 Quotations are good for 90 days from the above date. Mail or Fax purchase order to the address above, Terms are NET 20 Days 3M Security Systems Attactnnent 2 3M Center, Building 0225-04-N-14 St. Paul, MN 55144-I000 651 733 1110 January27,2005 Mr. Tom Shaw City of Denton Purchasing Agent Email: tom. shaw~cityofdenton.com Dear Mr. Shaw: 3M is the developer and sole manufacturer of the 3MTM SelfCheckTM System. We have patents covering several of the system technologies, including the ability to detect and process material protected by 3MTM Tattle-TapeTM Strips. We are not a,vare of any manufacturer that sells self-checkout systems operating within the scope of 3M's patents. Service contracts and warranties are based on the correct usage of 3M Tattle-Tape Security Strips with the 3M SelfCheck System. Our sales representative for your area is Shawn Bramley and he can be contacted at 800/328-0067. Thank you for your interest in the 3M SelfCheck Systems. If there are any further questions or problems, please feel free to contact us. Sincerely, Gregory P. Pfouts National Sales Manager ri c: S. Bramley M. Keefe ORDINANCE NO. AN ORDINANCE APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF THREE SELF CHECK MACHINES FOR THE DENTON PUBLIC LIBRARY SYSTEM AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISION FOR STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS; AND PROVIDING AN EFFECTIVE DATE (FILE 3313-PURCHASE OF SELF CHECK MACHINES FOR THE DENTON PUBLIC LIBRARY SYSTEM AWARDED TO 3M LIBRARY SYSTEMS IN THE AMOUNT OF $69,440). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following purchase of materials, equipment or supplies, as described in the "File numbers" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER 3313 VENDOR 3M Library Systems AMOUNT $69,440 SECTION 2. That the acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. That the City Manager is hereby authorized to execute any contracts relating to the items specified in Section I and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-File 3313 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 22, 2005 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Robert Tickner 349-8275 SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execute a Professional Services Agreement with the firm of Schrickel, Rollins and Associates, Inc. to provide professional design and landscape architecture services for the Cedar Street Streetscape Improvements; authorizing the expenditure of funds therefore; and providing an effective date (RFSP 3215 in an amount not to exceed $123,000). RFSP INFORMATION This request for proposal is for the solicitation of an architectural firm to execute the master planning and design improvements to the corridor within the right-of-way and City owned property of Cedar Street. The area is bound by the south side of West Mulberry to the north side of West McKinney. Primary design elements include sidewalks, ramps, crosswalks, landscape plantings, irrigation systems, benches, and other site amenities. This will reinforce the Cedar Street area as a major corridor by creating a pedestrian friendly area with increased activity and development. RECOMMENDATION Award a professional service agreement for professional design and landscape architecture services to Schrickel, Rollins and Associates, Inc. in an amount not to exceed $123,000. PRINCIPAL PLACE OF BUSINESS Schrickel, Rollins and Associates, Inc. Arlington, TX ESTIMATED SCHEDULE OF PROJECT The timeline for the project is as follows: Conceptual planning- 3 to 4 weeks Design and Construction- 4 to 6 months Construction- 9 to 12 months Agenda Information Sheet March 22, 2005 Page 2 FISCAL INFORMATION This project will be funded from a HUD Neighborhood Initiative Gram and an Economic Development Initiative Grant administered by the City of Denton Community Development Block Grant Department. The account numbers for these grants are 962004001.1360.10100 and 962004002.1360.10100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-RFSP 3215 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH THE FIRM OF SCHRICKEL, ROLLINS AND ASSOCIATES, INC. TO PROVIDE PROFESSIONAL DESIGN AND ENGINEERING SERVICES FOR THE CEDAR STREET STREETSCAPE IMPROVEMENTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFSP 3215 IN AN AMOUNT NOT TO EXCEED $123,000). WHEREAS, The professional services provider (the "Provider) memioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed comract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to enter into a professional service contract with Schrickel, Rollins and Associates, Inc. to provide professional landscape architect and design services for the City of Demon, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY 3-ORD-RFSP 3215 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the day of ., 20 , by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKirmey Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Sehrickel, Rollins and Associates, Inc., with its corporate office at 1161 Corporate Drive West, Suite 200, Arlington, TX 76006, hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, (describe the Project in the space below are in an attachment) 1.1 Scope of Services - Refer to Attachment A 1.2 Supplementary Conditions The following Supplementary Conditions amend or supplement the General Conditions to the Agreement for Architectural or Engineering Services as indicated below. All provisions which are not so amended remain in full force and effect. Paragraph 2.3.1 - Revise the last sentence of the paragraph to read as follows: "Notwithstanding Owner's approval of the documents, Design Professional acknowledges that it wilt use its best efforts to see that the documents and specifications will be sufficient and adequate to fulfill the purposes of the project." Paragraph 2.6.5 - Revise the first sentence to read, "The Design Professional shall observe the construction site at least one time a month, while construction is in progress, and as reasonably necessary while construction is not in progress, to become generally familiar with the progress and quality of the work completed..." Page 1 H:\Pro\1243i - Cedar Street Streetscape~Agreement_febl 7.doc Revised 5-30-02 Paragraph 2.6.12 - Delete the following words from the first sentence, "(1) determining compliance with applicable laws, statutes, ordinances, and codes," and add the following sentence at the end of the paragraph, "It shall be the Contractor's responsibility to comply with all applicable laws, statutes, ordinances, and codes as well as the contract documents." Paragraph 2.6.I8 - Revise the first sentence of the paragraph to read as follows, "the Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs prepared by the Design Professional, arising out of the negligent acts, errors, or omissions of the Design Professional." SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall be $~. 2.1.2 Progress payments for Basic Services shall be paid in the following percentages for of the total compensation for the Basic Services satisfactorily completed at the end of the following phases of the Project: Refer to Attachment B. 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services is as follows: Principals $130 per hour Associates $110 per hour Technical Staff $ 85 per hour Clerical Staff $ 55 per hour 2.2.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services shall be based on a multiple of 2.5 times the amounts billed to the Design Professional for such additional services. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of 1.10 times the expenses incurred by the Design Professional, the Design Professional's em- ployees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $10,000 without the prior written approval of the Owner. Page 2 H:~Pro\1243i - Cedar Street Streetscape\Agreemenl_febl 7,doc Revised 5-30-02 SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. The Design Professional's Proposal 3. Attachments A through B. This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: BY: MICHAEL A. CONDUFF CITY MANAGER SCHRICKEL, ROLLINS AND ASSOCIATES, INC. 1161 Coroorate Drive West Suite 200 "" 'Victor W. Baxtelr--~/ Vice President f WITNESS: Page 3 H:~'ro\t243i - Cedar Street Streetscape~greement~febl7.doc Revised 5630-02 Attachment A Scope of Services Denton- Cedar Street Streetscape January 5, 2005 1. Scope of Project The project is the master planning and design of improvements to the corridor within the right of way and City-owned property of Cedar Street in an area bounded by the south side of West Mulberry to the north side of West McKinney. Primary design elements are sidewalks, ramps, crosswalks, landscape plantings, in'igation systems, benches and other site amenities. 2. Purpose of the Project The primary purpose of the project is to reinforce the Cedar Street area as a major corridor by developing a "pedestrian friendly" area that will be an area of activity and development. The project will create a strong visual identity to the second tier of streets surrounding the Courthouse Square. The project must comply with the requirements set forth by the City of Denton. 3. Topographic Survey/Base Sheet Preparation Topographic and existing utility information for the area will be provided by others by separate contract. Schrickel, Rollins and Associates, Inc. (SRA), will coordinate with the surveyor to communicate scope and requirements. 4. Review Existing Plans Collect and review all existing plans and studies relevant to the project area to del'me prel/minary issues, to identify conflicting findings, and to identify supplemental data requirements. This effort will include a review of the existing corridor plan and related ordinances to ensure their compatibility with the City's goal of a vibrant, walkable corridor. Findings will be documented in a "bullet-point" report format and will include recommendations for future ordinance revisions and/or slxategies, such as an overlay district, if appropriate. 5. Data Gathering/Field Observation The Landscape Architect will perform a site inventory and photo documentation of existing conditions, existing development adjacent to the site, traffic patterns, land use issues, overall walkability and conflict points, circulation issues, major design elements, district image and sense of arrival. 6. Program Definition The Landscape Architect will meet and coordinate with the City's representative and others as necessary to clearly de£me the program including: · Exact facility requirements · Maintenance considerations · Access considerations · Security considerations · Design approaches Denton - Cedar Street Streetscape 1243i Attachment A - Scope of Services Page 1 7. Analysis In light of findings established in Tasks 5 & 6, the Landscape Architect wilt prepare a framework analysis that documents the comdor's most significant opportumties and constraints and key urban design issues related to future pedestrian improvements. The analysis will take the form of an overall illustrative diagram of the corridor, as well as cross sections of the streets. The findings will be reviewed with the client and refinements made as necessary. 8. Traffic Study A Traffic Circulation Analysis (TCA) to determine how the proposed improvements will relate to existing traffic on internal and adjacent roadways will be provided by the City. 9. Meetings A. The City Staffwill prepare for and attend all meetings with the memhants, property owners, City staff, and general public for the purpose of reporting on progress and gathering input. B. The Landscape Architect will attend three (3) meetings with staff, including kick-offmeeting. C. The City Staffwill present the Master Plan to the City Cotmcil. D. Additional meetings may be scheduled with additional compensation by the City to the Landscape Architect, as mutually agreed to in writing in advance of any such meeting(s). E. The City will be responsible for advertising ail meetings, if needed. 10. Master Plan The Landscape Architect will provide landscape/site development plans of Cedar Street, with emphasis on the utilitarian needs of pedestrians and visual enhancement of the comdor by developing pedestrian corridors as the primary focus along with drive lanes and parking as secondary issues. Corridor improvements will include (but are not lirrdted to) the following as far as the budget allows: · Pedestrian Crosswalks · Pedestrian friendly access to major facilities · Trees · Irrigation system · Special paving · Pedestrian scaled light poles Signage · Barriers · Consideration of deletion of selected parking spaces to create pedestrian niches · Addition of site furnishings including benches and waste receptacles at selected areas · Improvements to existing crosswalks and ramps · Sidewalk and/or paving additions for continuous access for total length of project · Accessible curb ramps where necessary at all intersections · Possible utility adjustments Tasks The Landscape Architect will prepare the Master Plan for the entire area of Cedar Street from West McKinney to West Mulberry. Denton - Cedar Street Streetscape 1243i Attachmem A - Scope of Services Page 2 The Landscape Architect will hold monthly meetings with the City's representative and other designated representatives throughout the Master Plan development to communicate progress and discuss pertinent issues. The Master Plan will be revised at the direction of the City's representative. A rough cost estimate will be prepared at the completion of the Master Plan. The Master plan will consist of an overall plan view of the district, sketches, sections and vignettes to illustrate the overall design concept, and text explaining the process, program and the conclusions of the effort. An Opinion of Probable Cost will be included along with prioritized recommendations for development and phasing. The Master Plan will be a camera-ready graphic. 11. Geotechnical Investigation At two to three locations selected by the Landscape Architect, and approved by the City, soil investigations will be conducted by an independent Geotechnical Engineer selected by the Landscape Architect. Services of thc Geotechnical Engineer will be paid for separately by the City of Denton. 12. Construction Documents Based on the approved Master Plan and any further adjustments in the scope and quality of the project or in the construction budget authorized by the City, construction documents consisting of drawings and specifications will set forth in detail the requirements for the construction of the project. The Landscape Architect will advise the City's representative of any adjustments to previous estimates of construction cost indicated by changes in requirements or general market conditions. The Landscape Architect will submit documents and estimates of construction cost to the City's representative at intervals of 50% and 100% of completion for review. The City's representative will respond with written comments advising any changes to be made. 13. Compute Quantities, Plans Estimate, Specifications, General Notes, Etc. The Landscape Architect wilt prepare a list of construction bid items and compute estimated quantities. The estimated cost of construction will be computed based on current unit prices and estimated quantities. The Landscape Architect will provide general notes, specifications and special provisions, which are applicable to the project. 14. Bidding The Landscape Architect will provide/perform the following Bidding Services. A. Assist CITY staffin preparing the advertisement for bids. B. Answer questions fi.om Bidders and prepare addenda as necessary. C. Assist CITY as required in opening bids. D, Provide bid tabulations. E. Evaluate the lowest bidder, Bid evaluation will include the contractor's: 1. Past work history; 2. Financial resources; and 3. Physical resources to produce the project. F. A smmrm-y of the bid analysis will be provided to CITY for use in selection and award of the construction contract. Denton - Cedar Street Streetscape 1243i Attachment A - Scope of Services Page 3 15. Construction Phase The Landscape Architect will attend the prebid and preconstmction conferences. 16. Construction Administration The Landscape Architect will provide/perform the following Construction Admirdstration services. Said services to be provided at%r execution of a contract between CITY and the Contractor selected by CITY. The Consultant will provide information relating to review of submittals, shop drawings, and requests for information. A. Landscape Architect will provide/perform the following Construction Administration services: 1. A total of four (4) meetings/site visits with owner/contractor including: Field observation/construction progress shall be provided for the purpose of ascertaining for the CITY that the work is in substantial or general conformance with the contract documents and design intent; i, Should nonconforming or defective work be observed, the Consultant will endeavor to immediately inform the CITY's representative that conforming or remedial action is required. ii. A schedule of key construction observation visits will be developed for approval and reference by CITY. iii. Conduct coordination meetings with contractors, inspection personnel, and CITY representative to discuss strategy, problem areas, progress, and any required coordination. Prepare a summary of these meetings and distribute them to both CITY and the contractor. Placement and layout of facilities; Field observation/construction progress; Mandatory "critical" observations; and Coordination meetings. 2. Review shop drawings and other submittal information for the purpose of ascertaining conformance with the design intent and construction documents. 3. Provide written responses to requests for information or clarification. 4. Prepare and process change orders, if required. 5. Review the monthly pay requests by the Contractor. 6. Assist CITY in conducting the substantial completion and final completion observations. 7. When complete, recommend final acceptance of work. Landscape Architect's Status During ConsU'uction. Landscape Architect will not be responsible for Contractor's means, methods, techniques, sequences, procedures or schedules of construction or the safety precautions and programs incident hereto. Landscape Architect will not be responsible for Contractor's failure to perform or furnish the work in accordance with the construction documents. Landscape Architect will not be responsible for any delays in the execution of the work caused by the Contractor. Denton- Cedar Stteet Streetscape 1243i Attachment A - Scope of Services Page 4 17. Optional Additional Services The Landscape Architect will provide services not identified in this Scope of Services upon receipt of authorization from the City's representative. Additional Services will be provided on an hourly rate basis with a mutually agreed "not to exceed" total. Such Additional Services may include the following or other services: Design A. Design of facilities beyond the original scope and/or budget identified in the description of services. B. Establishment of the boundary lines. C. Design of Signalization Systems and/or traffic studies relating to University Drive. D. Representation in arbitration, mediation, litigation, depositions or similar legal processes. E. Location of underground utilities. F. 3-D animations and formal renderings. Construction A. Preparation of Change Orders as required which expand the original Scope of Services. B. Site observation visits (beyond the number specified in the paragraph above). 18. Deliverables A. Master Plan 1. The contents of the Master Plan will generally be as follows: a. Proiect Site. An aerial photo designating the project I/mits. b. Master Plan. An illustrative master plan of the project site. c. Sketches. Concept sketches of significant locations in the project area. d. Design Vocabulary. Sketches and descriptions of the typical built elements of the planbroken down into defined parts; benches, planters, signage, etc. Construction Documents Based upon the approved Master Plan, adjustments in the scope or quality of the project, and the project design budget authorized by the Owner, Construction Documents deliverables shaI1 include, but not necessarily be limited to the following documents: a. Plan sheets illustrating plans, elevations, sections and details of construction. b. Technical specifications. c. Project manual containing specifications and bidding documents including City forms such as bid proposal, form of agreement between City and Contractor, and conditions of the contract. 2. Final Opinion of Probable Construction Cost. 3. The Landscape Architect will provide 20 sets of contract documents for bidding and construction phases. 19. Reimbursable Expenses The following items, if provided, shall be considered reimbursable or additional to ttfis contract. A. Perm/t or filing fees. B. Printing and other reproduction costs beyond those set forth in this contract. C. Special courier services. D. Travel expenses. Denton- Cedar Street Streetscape 1243i Attachment A - Scope of Services Page 5 E. Review and inspection fees related to Texas Department of Licensing and Regulations. F. Other permit fees. Denton - Cedar Street Streetscape Attachment A - Scope of Services 1243i Page 6 Attachment B Compensation Denton - Cedar Street Streetscape January 5, 2005 Master Plan Services $ 25,000 Basic Design Services Preliminary Design Phase Final Design Phase Bidding Phase Subtotal Basic Design Services $ 44,500 $ 34,850 $ 7,250 $ 86,60O Construction Admimstration $ II,400 TOTAL PROFESSIONAL SERVICES $ 123,000 Denton - Cedar Street Streetscape 1243i Attachmem B - Compensation Page 1 Attachment C Hourly Rate Schedule- 2005 CLASSIFICATION: PRINCIPAL ASSOCIATE SENIOR ENGINEER ENGINEER III ENGINEER II ENGINEER [ DESIGNEP-JENGINEER-I N-TRAIN lNG SENIOR LANDSCAPE ARCHITECT LANDSCAPE ARCHITECT III LANDSCAPE ARCHITECT II LANDSCAPE ARCHITECT ~ DESIGNER SENIOR PLANNER PLANNER ARCHITECT DESIGNER SURVEY COORDINATOR SENIOR ENGINEERING TECHNICIAN ENGINEERING TECHNICIAN PLANNING TECHNICIAN PRODUCTION COORDINATOR CAD OPERATOR/DRAFTER III CAD OPERATOR/DRAFTER II CAD OPERATOR/DRAFTER I SENIOR SECRETARY/SPECIFICATIONS COORDINATOR SECRETARY~VORD PROCESSOR CLERK The ranges and ~ndividual salaries are adjusted annually, OTHER SERVICES ('invoiced at rate shown}: Survey Field Party RANGE OF BILLABLE SALARY RATE LOW HIGH $130 $155 85 140 110 130 90 110 65 90 60 80 50 70 110 140 80 100 65 85 50 7O 45 6O 95 130 75 95 80 95 75 95 70 95 55 70 50 70 50 66 70 105 60 85 50 70 45 60 45 80 37 52 30 40 $115/hour PRINTING SERVICES (in house): SQ. FT. PER ORDER BLUE LINE MYLAR COMPUTER PLO'i-]'lNG SERVICES (in house): PRICE VARIES ACCORDING TO SIZE OF ORDER 6 $3.70 $10.00 100 25.71 139.00 101-200 0.18/S.F, 1.30/S.F. 201-300 0.14/S,F. 1.25/S.F. 301-t000 0.13fS.F. 1.20/S.F. 1001 - up 0.11 .S,F, 1.15/S.F. SIZE BLACK INK ON COLOR ON MYLAR FILM BONDNELLUM BONDNELLUM OF INK PLOT up t0 11"x1~' $ t0.50 $13.00 $ t3.50 24'~36" 11.00 15.50 21.00 30"x42" 12.50 22.00 27,00 oversize add 2~50/SF 3.50/SF 4.50/SF In-house Xerox copies provided at $0.07 per single side copy or $0.14 per double side copy, OTHER DIRECT EXPENSES: Other d~rect expenses are reirr~ursed at actual cost t~mes a muHiplier of t ~t0, They include outside pdnting and reproductions expense, comrnunic~ion expense, travel, lransportetion and subsistence aw~y from Arlington and other miscellaneous expenses directly related to lhe work, nc ud ng costs of laboratory analysis, tests and other work required to be done by independent persons other than slaff members. ' 05 SRA - 1 CITY OF DENTON G~I'~P_~L CONDITIONS TO A GREE~tENT FOR ~C~C~ OR EMG~G SER~CES ~TI~E i. ~C~ECT OR ENG~R'S G~¢mi Condifio~ ~ a~ohed) p~o~ed by ~¢ _~c~tect or ~c~ ~ffcr ~cd ~ '~i~ ~ofession~'3 or De~ Profes~onaI's ~!oyees ~d con~t~ ~n~t¢d ~ ~ci~ 2 ~d 3 of~e O~g Conditions ~ mo~ed by thc Age,Chi ~d Pr~oos~ (~c 1.2 ~e De~ ~of~ '~H pe~o~ ~ Sc~ces ~ ~ mdcpend~l con~or to ~h¢ p~v~g ~ofcssi~ ~d~s co,mm= ~ thc lcv~ of ~x~iscd by me,sets of~¢ s~e proZes~on c~fly p~mg m ~ s~¢ ]oc~ ~d~ s~ c~d~s, ~clu~g re~l¢, ~o~ jad~cnm md prat ~¢ly ac~om (to "Deg~ of C~'~. ~e Se~c¢¢ sh~ be p~ ~ e~e~ousty ~ is c~ten~ ~ ~e Do~e of Cmo nec~s~ for ~¢ orderly pro.ss cftc ~oject D~on ~qu~t of ~e 0~, ~e De~ Profession~ s~ m~i f~ ~e O~efs appro~l ~ soheduie for ~e p~o~ of ~e S~c= wMch ~y be ~j~ted ~ ~e Proj~: ~ceeds, ~d sh~l ~clude allo~ces f~ p~o~ of ~ re~k~d for ~e O~effs r~ew ~d for %~ of ~b~s~ons by ~u~ ~v~g ju~s~c~ or= ~e ~oj~ Thm~ ii~ esmbi~hed by ~s sched~e ~d a~rov~d by 2e O~r sh~l noq a<c~t for r~on~t~ ca~e, be exceed~ by ~e D~i~ ~f~s~on~ or 0~, md adjus~ zo ~ sch~duie sh~l be mummy accep~ble to bo~ p~. A_RTICLE 2 SCOPE OF BASIC SERx/-iCES 2.21 BASIC $ERVIC~x~_g DEFIi'¢¢_t) ~¢ D¢s~ Prof~sion~'s B~ic S~c~ con,st of ~os¢ d~bed ~ S~ons 2.2 ~ou~ 2.5 of~e C~ Condiffo~ ~d ~cMd¢ ~ou~ li~m~ no~ s~c~, c{~l, me¢~c~ ~d ete¢~c~ en~ee~g s~c~ ~d ~y o~ ¢n~¢~g s~c~ n~¢ss~ m ~duce a co~]et~ ~d acc~m set of Cons~ac~on Document, ~ descnbed by ~d req~d ~ Se~on 2.~. The B~ic S~c~ ~y be ~¢d by ~e A~men= %2 SC~C DESIGN 2.~,1 ~ D~i~ P~f~sio~, m z~n~i~on ~ ~he 0~, s~ develop a ~ pm~ for ~e Pro~e=: to asc~m O~s ne~s ~d ~ ~mb]{sh the requ~en~ for ~e 2.2.2 ~e D~i~ Pro~ssion~ sh~l pro. de a pre~n~ evaiua~on of ~z O~efs .~ro~ z~s~e~ schedule ~d co~c~ budget requ~emenm, !.2~ ~e Desi~ Professio~ sh~t re~ ~ the O~er ~adve ~p~oach~ to desi~ ~d coercion of ~ 2.2.4 B~ed on ~e ~mally a~ed-~ pro~, sched~l~ ~d coercion budget re~rm~, ~e D~i~ ~of~sio~t s~ Dr~, for appro~l by 2.2.5 ~= D~i~ Profess~ sh~I mb~t to ~e 0~er a pre~ de.ed ~te of C~s~on Co~ b~ed on cu=ent ~ volume or o~ ~it cos~ ~d wMch Ndicat~ th~ cost o f e ash c ~W o f work involved i n c o~c~g thc Pro~ect and ~ ~lshes a n e lapsed t~e factor for th~ p e~ zo~¢~: m the co~I=~on 2.3 DESIGN DE~OP~NT 2.3.1 ~¢d on ~ approv¢d Sch¢~fic De~ Docum~ ~d ~y adjus~¢n~ ~o~med by ~¢ ~ ~ ~¢ pro~ schcd~¢ or o~¢~0fi~ b~ge~ Prof~sional shah pr~ar¢ for appro~ by ~¢ O~¢r, Desi~ Dcvelopmem Docm~m oon~s~g of ~ ~d o~ doc~m to fix md ch~ot¢r of ~ Projec~ as to ~cN¢c~, s~c~ml, m¢~gal ~d ¢t¢c~cal ~sr~, ~¢~s ~d s~h o~ el~en~ ~ may be ~pro~at¢, wNch shall co~ly ~th ali a~bcable la~, s~mtcs, ord~¢~, ood~ mqd mg~ons. No~a~ding Ob~s a~ov~ of ~¢ documen=, D~i~ ~ofession~ rcpres¢n~ Documcn~ and ~ec~caffons ~H be ~cJ~t md adea~a¢¢ to ~ ~¢ pu~os~ of thc 2~,2 ~e D~i~ Prcfession~ sh~l advise ~e 0~ of ~y adju~m to ~¢ pr¢~ ¢s~t¢ of Cons~cfion Cost N ¢ ~ De~=d S ~ S¢~on 2.2.5. 2.4 CONSTRUCTION DOCLqVI~NTS Plea. SE 2.4. I Based on the approved Desi~ Deveiopm~t Documen~ ~d ~y ~her adjus~en= in ~¢ sc~e or qu~f~ of the Project or m ~e con~cfion budget authored by ~¢ O~, ~e D~i~ Prof~sionai s~t pr~e, for a~ov~ by the O~, Cons~c~on D~m~m ccnsis~g of Dm~ mud Sp~ca~ons sz~ug foxh m demfl mq~remenU for th= cons~c~on of~e ~oiect which ~l co~iy ~ ~ a~Emble laws, ~mtes, ~dN~ces, cod~ ~d re~ta~o~. 2.4.2 ~e Desi~ Prefession~ sh~ ~sisi the O~.er m ehe prep~on of the ne~s~ bidflNg or pmcuremen~ ~o~cn, biddNg or crocur~ent 5o~, nhe Condi~ens of ~e con=mt ~d ~e fo~ 0fA~e~ent be~vem ~e O~ ~d conmcror. ' 2.4~ ~ne P. e8~ Prof~sional sh~l admse the O~m*r of ~y adjus~enm to pre,dom preii~ es~ms of Cons~chon Cost md/ca:ed by ch~ges ~ res~mmm or g~emt ~k¢~ c~di~cns. ' ~ 2.4.4 2ne Desi~ Pmfessionml shall ~sr ~e 0~mer in comec~on .~ ~e O~'s r~onsibi~W for 5I~g doc~m~n~ re~ed for ~e goomv~ of gove~ au~on~es ha~g~s~cfion over ~e Pro~ec~ ..... 2.5 C ONSTUCTION C 0 NTRACT pRO CURhE.¥-tENT 2.5.I T. ne De~i__on Profeasuoaal, roi!owing me owners approval of the Cons~ucfion Documents a.nd of the latest oreti.-mmmw, demi!ed esr{mate of Construction Cost, shall assist -.he Owner in procuri=.g z consmac~on corm-act }bt the Project through any procurement method that {~ ie~ily aopiicaNe to the Project 6nciud~g without Page 4 S:".?rcht~!DS .SPEC'J000~3999',3215 Artachmenti. doc iimiraliom the comperiive sealed biddiag process. Although the Owner vail consid~ ~e ad¼ce of ~e Design -~'ofessicmal, the award of the censrmclxon eonrrac: is in the sole diS~edon of the Owner. Z5.2 If ~e construction contrac~ araount for the Project exceeds t~e total co~on co~ of ~e ~oje~ ~ ¢e~ fc~ m ~e a~owd De~ied S~Zm~ of ~obabl¢ Ccns~on Cos~ of ~e P~ject s~b~d by ~¢ D¢si~ ProI~on~, ~ ~ D¢si~ Proi~s/on~, aZ i~ sale cos: m~'~..~ ra~s~ ~e Cons~cdon Documen~ ~ mmM be ~¢d by ~¢ O~u~ to reduc~ er mo~ ~ qu~V az qu~V of ~¢ wo~ ¢o ~ ~¢ to~ cons~c~o~ cost of &¢ ~j~cl M~ not ~k¢ nmi cous~c~on cas~ set fo~ ~ ~ a~roved De.ed S ~t¢~t of ~b~le Co~c5~ Cos~. CONSTRUCTION P~E - ~~TtO~ OF T~ COMS~UC~ON CO~ 2.~.i ~a¢ Desi~ ~f~smo~'s ~ousibihv to provide B~ic S~s f~ ~ Coercion P~ ~d~r ~s .k~e~t co~nc~ ~ ~k~ awed of~e Con~c~ br Cons~c~ ~d t~s at the i~uance to ~e O~er of ~e ~a[ Cad,cate for Pa~t, ~s ~ended ~md~ ~h= t~ of Sabsec~on 8.3.2. 2.6.2 ~e Desi~ Profusions gh~ pro,de de,led a&~ms~fion of~e Conm~r for Codec*ion ~ se: f~ ~elow. ~or desi~ pmfessioa~ss the shMt also be m acco~ace ~ _~ doomer ~0I, Oene~ C~iom of ~e C~mc: for C~smc~, eu~en: a of ~e ~m of ~e A~e~ment a may be amended by the Ci~ of Denton speciM con~fio~, ~less o~se pro~ded ~ ~e A~emmt For em~e~ ~e ~smfion s~ll also be ~,]ccordace -m~ S~dard Specification, for Pubic Wor~ C~:cdon by rko No~ Cen~ T~x~ Co, c/1 of Gove~mm, c~en~ ~ of ~e dare of ~e Ageem~nt, *aiess pro~ded ~ ~e 2.~.3 Causation ~e duffs, r~onsfoilifies md l~2mio~ of au~fiB~ of the Desi~ ~fesaon~ ~I not be r~mcred, modi~ed or ~d~ m~our a~e~ent of [he O~ md D~i~ ~f~sionaI. 2.6.4 ~e D~i~ ~f~aon~ s~ be a r~esenmive of md sk~ ad,se ad c~ult ~ ~e Oxm~ (1) d~g c~ac~, ~d (2) at ~e O~¢r's dke¢ffon ~e to nme dung ~e co~ecdon, or w~ period desmbed ~ ~e Con~t for Co,me, om ~xe Desi~ ~fession~ s~l ha~ au~chV to act on beh~f of the O~ only m t~e ~xtmr pro%dod {n fire A~emen¢ ~d ~ese Gene~ Condihons, unless o~se modred ~y w~¢en ~am~ 2.6.5 ~.e Desi~ Professorial sM!I obs~e ~e cop~c~on site at ~ea~ one time a w~k, ~mle cm~m is ~ pro~% ~d ~ remo~ty nec~s~ while com~cfioe is not ~ progess, ~o be~me fam~a 'M~ ae pro~s ~d quMi~ of ~e work ce~leted and ~ dele k~ ~e work is berg p~o~ed h a ~dica~g that :ke work when co~Ieted MI1 be ~ acco~mce m~ abe Conrac: Dot--gna. De~i~ ~af~sionM sh~lt ~o~de O~ a ~en teem subse~ent each m-sire ~aiL On a¢ b~is of on-sim obsewa~ons ~¢ D~i~ ~ofessi~a shah ~ ~e O~ner ~o~ed of ~ pro~ess ad quali~ of the work, ~d shall exercise the De~ee of Cae and diligence m d~cov~g ~d Wo~fly r~o~g to ~e.O~er ay obse~ab~e defeca or deicienm~ M the wofr of Conmaor ~ ~y subconeactom. ~e D~i~ Prof~sion~ represena that ke Mil lo,ow Degee of Cae ~n peffo~ng ~ S~c~ ~der te A~emmt. The Des/~ ~cf~sionai sha~ pa~ant for all or ay pm of ~e Desi~ Profession~'s Semces ~d~ or of ~e Project i~elf sha~ ~ no way ~rer ~e De~ Professiona's ebiiga~ons or O~'s ~ hereunder. 2.&S ~e Desi~ Profession~ sMil ~ot Mve coneol over or ch~ge of ~d shal not be r~sible for cons~c~ me~s, meaMs, ~ecMiques, xe~e~ces. ~ocedur~, or for s~e~ pmcaufio~ ~d pro~ in co~ecfion ~ ~e work. ~e Desi~ Professional shall not be ~onsibte for ~e Co~ctofa schedules f~ ro ca~ out ae work in accerd~ca Mt ~e Coheir Docum~ except msof~ a ach faire ~y r~ult ~ De~ ProfesaonM's negtigmr acm or o~- sie~. The Desi~ Prafessi~a[ sh~l not have consol ov~ ~ ch~ge af acB or o~ssio~ of ~e C~mtcr, S~c~m~rs, or ~ir age~ or e~ioyees, or of ay o~erp~sons pe~o~g pc~o~ of ~e 2.6J ~e Desi~ Pmf~a~h s~ ar ali ~ ~v¢ access to ¢h¢ work whoever k is ~ pr~m~on or Wo~ss. 2.6.8 Except ~ ~y othe~se be pro%dod m ~e Comeact Domm~m or wh~ d~ct co~unicadom have been spe~zl]y au~.o~ed, ~e O~= ~d Con,clot shah co~ica~e ~ough ~e Desi~ Profusion. Co~mumcafio~ by md ~th ~e Deh~ Prof~sicn~'s conmI~ .sh~I be r~ou~ ~e D~i~ Professicn~ 2.5.9 B~sed on the Deh~ ~of~sional's obs~$~ons at ~e si~ of the work md evM~fiom cf ~e Con~to~s Apphca~cns for Pa~% ~h¢ Desi~ PrefessicnM shall r¢m~, ~d ce~ ~e amo~m due ~e Con¢~tor. 2.6,I 0 ~¢ Desi~ Professional's ce~fica~on for pa~enr shall cons~mre a re~senm5on to the O~er, bmod on ~e Desi~ Professional's obs~afions a~ ~e site pro~ded ~ Subsec~on 2.6.5 md on ~e dam co~nsmg ~e C~mctor's A~c~on for Pa~en~ ~ar ~he work has ero~essed ~ ~e ~om[ ~dicmed ~d that qua~ of the Work is in accord~c~ '~th :he Conmacr Documenu. ?ne foregoing r~mm~ons are subject [o ~or'demahons ~om ~e Caneacr Docum~m cor- recmbie p~or ro co~le~on ~d ro specie qua~fica~ons %~ressed by ~e D~i~ Professi~M. ~ue issu~ce of ~ Ce~ficam for Pa~enr shall ~her cans~mte represenm~on ~r ~e ContoUr is entitled ro pa~ent in ~e amomut c~et However, ~he ~sumce of a Ce~fim~ for Pa~mt ~alt not be a r~resenmfioa ~e Desi~ ~ofsssio~ ~ (1)re,oxid cons~cfion me~s, memos, r~ques, sequenc~ or proced~, or (2) ~cen~ed how ~r for ,Must ~os~ ~e Conmctor ~ ~ed money pm~o~ly paid on account of ~e Conner S~ 2.5.t l Uno Des/~ ?torsional sh~l ~ve xh¢ respcnsfei~ ~d au~ozV to mf~t work w~ch does ~ct confo~ to ~e Conner D~umm~. ~enewr -he ~ofessionai consid~ ir ne~ss~ or zd~sfole for i~piemenmfion cf ~¢ ~¢ent of ~he C~ct Doc~enm, ~¢ D~i~ Professional M5 haw au~on~ ro reeuk~ addi~onal resection or res~g of ~he work ~ acc~d~ca ,~th ~e profUSions of ~e Cen~t Doc'~en~, wke~er or aor such Work is f~hcat¢~ msm~e~ or co~]eted. Ho~v~, nM~ ~ au~o~V of ~he D~i~ Professional nor $ decision made m go~ fai~ ei~ to ex=eise or not ex~se such auC~¢' shall We rise to ~ duv or re~sfoSiV of ~ke Desi~ Professiorm[ to [he Comment, Sub¢onmctors, mmter~ ~d equ~mmr ~ppli=s, ~es ¢genm or a~ioyees or o~er pemons pe~o~g pomons of :he w~k. 2.5.12 ~e Desi~ ?rof¢ssiena shah re~ew ~d ~prove or ~e ocher appropfiam acacn upon Con~cmr~s sub~2~ su¢h as Shoe ~amngs, ~ucr Dam ~d S~i~ for the pu~ose of (I) dcre~ing co~ii~uce '~ a~iicfole lax~, sm~res~ omin~cm ~d c~; ~ud (~) dere~g ,~he~er or not 'i~ work. when o~:~rec ~m.~ be in co~ce ~th the reaalremenm of uhe Con~t D~mmm. %q¢ D~ Yrof~sion~ s~5 a~ ~%~ such resonate ~ro~mess :~ cause no delay iu the ~'ork or m ~e cons~c~on of ~n¢ O~w.~ or of sep~m c~ac:ors, wh!e ~o~ing s~cien~ ~e ~ ~he Desi~ Prof~sionaI% ¢~ofes~ionai jud~enr peter adequam review. ~mew of such sub~ais is not conducmd for ~e pu¢cse of der~,hug the accuracy ~_d ca~iemness of o~her d~mils such ~ d~.ensions ~d quafides or =or subs~afing ~c2ons for ~Iafion or pe~o~uce of equ~pm~_~ or sysr~ desired by due Con~act~, ~ ef '~ch rema~ responsibiJr.¢cft~e~nmcmrto%~eexrentr, quiredbyr2eCon~ctDocumenm ~eD~i~Pmfessian~'sre~ewshagnorconsdmte~urov~ofs~eW~ecauUons., or, unless orher,hse $~ecificailv .... ~mt~d by ~.e Desire Prsf~aonaL of cons~cdon me~s, me~uods, te~aqu~, sequences or urocedures. ~_e ~uesi~ ~ rof~simal's approval of ~ soec~fic kern sh~l aot indicae approv~ of ~n ~sembiy ofw~ch ~,e ksm ~s z co~on~n[ WZum ~rcfe~sionzl c~ca~on ofee~.cs ch~actefisffc: Pacco 5 S:\prch\~,S SPEC',3000-3999X3215 AP, achm~t A. doc of materials, systems or equipmmnt is mqmred by the Contract Docum~.~m, the Desiga lhzofesatonal shall be ~r2ed to rely apon such ¢~5caffon re esrab[~ that the materiai~, systems or equi.rrmer~ w/Il m~t the pefformm~ce ~teria required by the Con,st Decrements. 2.6.13 he Design ?rofesaional shall prepare Cinmage Orders and ConsUncfion Change Directives, '~ith supporing documenm, dcn and data if deemed n~essary by the Design Professional as provided in Subse~ons 3-12 and 3.3.3, for th~ Owners approval and execution in accordance wSth .~he Cmn'act Documents, and rrmy auriaorize trinet changes/.n the work not involv~ax8 ~ adjnsnnent ,.-n the Conn'a~ Sam or an ex-,-~,_sion of the Ccnmac: Ti'ne wi-ach are not inconstant vfi~ the ~enc of the Contract 2.6.14 On behalf of the Owaer, ~he DesSgn Professional shall concluc~; irmpemsona m determine ~e dates of Substantial Corrm!edun and FSxal Ccrmoietion, and if requested by the Owner shall issue C~-~rrifienms of Substantial and Final Comple;5on. The Desi~on Professional w/ll receive and ~eview ~ttm =*narant~s and related documen~ reqUn'ed by the ConUmc~ for Comm'uction re be assembled by the Ccrnrraetar md shall issue a ,ina/cer~ficate for Payment uoon corrmiianee ~th the .mqun-ement~ of the Centra~t Documeats. ' ' 2.6.15 .,~e-Desi~*n Professional shall int~%rprer and .=ro'~ide reccrnmendadom on masers ¢onc~.~nmgperformance of the Owner and Contractor under the requ/remenm of the Conlract Documents on written ~quest of e~ther the Owner or Con, actor. ?he Design Professianal's response rs such requests shah be rmde w/th reason~le prorrrptaess and w/thin any time limits agreed apom 2.5.16 Inte~remlions and derisions of the Design Frofess%nal shall be conms~t with the intent of and reasonably '-kferabie 5~om the Contact Doc=monte and shall be m wr~hng or/n the form of drawings. When m~d~_ug such interpretations and itlifia2 de~isiorm, the Design Professional shall ~deavor to secur~ falr2t~ul ¢er'fonnance by both Owner and Contract~, and shall not be I~able for results or ~nresretations or decisions se rendered in good fakh in accordance w/th ail the prov/'sions of this Agreement and m the absence of negligence. 2.6.1'7 The Design Professional shall render written dec2ions ,Mthin a reasonable time on all ctam'~, dispums or oth~r magers in quesbon be~wee~n the Owner and Con,actor relamg to aha ~x=cution orpro~ess of the work ~s provided in ~e Contract Documents. 2.6.t8 The DesSgn Professional (1) shall render services under the A~ment/n accordance ~ ~e De~ee of C~e; (2) ME r~ume ~e O~er for aH damages .~~f~fi~3~~~9~ ~-~;. ~nd (3) by ~c~owled~g pa~nt by the O~ of ~y fees due, sha~ not be rate,ed ~om ~y n~m ~e Ox~ ~y nave ~d~ ~e k~eement or ~Ssh my of~e D~i~ ~fes~cnal's ob~ ~ere~der. 2.6.1'9 Tqe Design Pmfess/onaI shall provide the Owner with four sets of reproducible p~ints showing att si~mn, iScant changes to the Construction Documents during the Construcffon khase. :~,T1CLE 3 .~DDI-TiONAL SERVICES 3.1 GlhN'ERz43L 3.2.1 ~e aery/cos described in this Art/cie 3 are no~/nc[uded in Basic Serv/ces unless sc ,:denified in the Agreement or Proposal, and they sloatl be paid for by the Owner as ?roy/dod in the Agreement, in addison to the compensation for BasSo ServSces. The ser~c~ descn~oed under Sections 3.2 and 3.~ shall only be provided if autho~Szed or ¢omfirmed in wr/nng by the Owns. If services described under Con~ing~at Additional S~'Aces/n £ecnon 3.3 are required due re c/rcnmstances beyond ~he Design Professional's control, the Design Prot~sional shall nob-fy the Owner m ,andting and shall nor corrmnence such addit/onal services mndl it receives whtren approval from the Owner to proceed. If the Owner ~ndicams in wri~nng r/mr all ar part of such Contingent Addit{onM Services are not featured, ~he D~SI~ Professional shall have ne obligation re provide r. hose serv/ees. Owner W/ii be re~onsfole for *ompensatmg the Design Professdonal for Continge'nt .Additional Serviees only ff they are nor required due re the neglgence or fault of Design ~ofessional. 3.2 PROJECT REP~Pd~SEiNTATION BEYO1WI) BA~5IC SEi~VICW~S 3.g-1 If more extensive r~resentadon at the site than is desm'~-bedin Subsection 2.6.5 is r equs-ed, the Design Professional shall provide one or morePmject Representa~ves to assis~ in carrying our such additional on-site respomibiStSes. 3.2.2 Project P~. resenrative~ shmll be selecre~, employed and directed by the Design ?rofessional, and the Design Pmfessionai shall be compensated aherefor as agreed by the Owner and Design Professional. 3.3 C ONTI~-GlgNT ADDITIOrqAL SERVICES 3.3.1 M ~aking .material revisions ia DmwSngs? Spedficafions or o~hcr documents when such rcvSsions are: 1. incons/st~nr w~th approvals or insumcfions prew. ousiy Wen by the Owns, includhng revisions ~made necessary, by adjusU'n~nts m aha Owner's program or P'rojem; budget; 2. required by the enm:rm~nr or rewaon of codes, laws or re~alatSons subsequent to the pre.~-a~on of ~ch document~, or 3. due to changes :equired as a result ofth~ Owner's fali~e re r~ader demsion in a ~rne!y mariner. 3 J.2 ~rev/.'ding se.w/cos toque-ed because of ~dgmfican~ changes m zhe Pr~ e:t mciud/ng, but not ~Jr~2ted to, size, quali~,, complex/V, or the Owner's schedule, except for sermons reqmred under Sabsee~Son 2.5.2. 3.33 Preparing Drawi.n~, Speci,f. cxtions and other dccumenmnon md supporting dam, and provid~g other, ser~/ces {n connecnon '~ith Change Orders and Consu-~c~on Change Di~crives. 3.3,4 Promding eonsuita[on conch%ming replacement of work da~.~aged by ~-e or other c~e during cons~=~dun, and ~arnishmg sm-v~ces required 51 ;omnec~on ~45th the repiacemenr of such work; .3.5 Providing se,W~ces made nacessm~? by the default ~f nhe Con~-c~oL by ma~or de'i~cts or deficiencies un r. he work of nde Contractor, or by failure of pe~ormance o£ either the Owner or Conmac:or ~ander '~he Conn'ac~ for Co~,~su'ucr. on. Page S:'?rch'~BLDS SPEC\3000-3999\SZIj A~:c:Tment 32.~ Provid~g s~fces m cvz!uaffmg mn ~ve n~ of ctal~ ~b~ed by ~ Con~cmr or o~ ~ ~o~e~ ~h ~e 33.7 Pro,ding s~c= fn ~omnec~on ~ ~p:blic h~ng, ~bf~don ~oc~g or I~ proc~g ~xcept wh=e ~ D~sf~ ~of~s~onM fs p~ thereto. ~.3.8 Pm~d~g s~fc~s ~ ~df~on to ~o~e ~eq~ed by ~%~cle I for prep~g documen: for ~ltem~t~ s~t~ ~r szq:~ bids or ~o~d~ ~ Mddfng or co~m~c~on p~or to the ~o~i~on of~e Cons~c~on Do~m~ Ph~. 3.3.9 No~s~d~g ~ng con,ned ~ ~e A~emenL Prop~ br ~e ~en~l Comities to ~e c~, ~1 se~¢es d~bed ~ ~s ~¢le 3 ~zr are caused or n~es~teg ~u whole or in pm due ~ ~e neglig~,t set or omssion of ~e D~ ~feshmM s~ be p~o~ed by ~e D~ Profes~onal B~ic Se~ces md~ ~e A~emm~ ~M~ no ~onM c~ema~on ~bove md beyond ~e co~msa~ due ~¢ D~i~ ProfesSorial for ~he B~ic So,fops. [nt~g or concu~tnegl~gen¢¢ off~e 0~ ~[[ not l~t ~e De~ Prof~sional's ob[~o~ ~der ~s Sabsecd~ 3.3.9. 3.40~ION~ ~B~ION~ 2.4.i Pro~dmg ~cial !~ibi~ or o~¢r ~ec~ smdi~. 3.¢,2 Pro~dSugpl~g m~eys, sire ¢wd~ons or co~mSve studies of~o~e~ve ~ms. 3,43 ~o~ding special su~s, en~ome~ s~dies ~d submssions req~md fm ap~cv~ of gov~m~ m~ofifies ~ o~ ha%uS ~ojec:. 3.4.4 ProM~g s~c~ rela~ve to. ~e ~i~, ~sm~ md equipmen[ 2.4.5 ProMd~gs~ces to mvesngate e~= conm=em or mmlmes orzo ~e ~ed ~ ~mf. 3.4.6 ProlOg s~ces re v~ ~e mcmcy of dr~ or c~er ~o~don ~mished by ~e O~=. 3.~.7 Pz~Md~g coor~adm of cons~c[m pe~omed by separate con,actors or by ~e O~s o~ fom~ md coo~afion of se~ces re~=ed m co, ecrm cons~c~ petered ~d e~ipment supp[~dby ~e O~er. 3.4.8 Pro, ding de, led ~SV s~eys or ~vmt~es of~m~, eqmpment ~d labqr. 3.4.~ ~c~d~g ~yses ofoper~ng ~zd m~nmn~ce 3.4.10 M~g mves~gafions, mysteries of~t~als or eqmpm~t, er valuado~ ~d de, led appmbats of e~s~g 2.4.!2 Frohd~g ~hsmce ~ the uhl]mfion cf equipm~t or syst~ such ~ tes~n~ adjusts ~d b~g, prep~afion cf op~cn and ~mm~ce ~uals, m~g pemomei for operation md ~remc~ ~d cmsulmdcn d~g 3.4.I3 Provides ~Zefio~ d~ ~d s~I~ s~c~ rea3ired for or m come,on ~ ~e self,om procurement or ~mmlla~on of ~mi~e, ~mshin~ md related equipm~t 3.4.14 Pro~ding s~ces o~er ~ ~ ~cMded in Seo~, 2.6.4, ~r/ssu~ce to ~e 0~ of~e ~ C~ficate for Pa~mt md e~on of~e period of~e Coa~t for Co~c~on. 3.4.15 Pro~d~g se~c~ of c~sulmm f~ oAer ~ ~cM~c~l, cimi, s~cm~, mech~cai and e!ecMc=l ~em~g pomons of ~e Project ~ded ~ a para of B~ic Sedco. 3.4.16 Pro~dLng ~y o~er se~c~ not o~Mse bcluded M ~s A~e~t or not msmm~ty ~shed ~ acso~ce M~ gen=~Iy acceFed pmc~ce. 3.4.17 Prca~g a set ofr~r~ucible record ~a~gs b ad~fim to ~ose re~ired by Subsection 2.8.!9, sho~mg s~c~ chases in the work ~de during con- s~c~on b~ed on ~rked-up pnnm, ~Mn~ md o[h= dam ~mished by ~e Conmctor to ~e D'~i~ Prof~sionM. 3-4.18 No~rhs~d~g ~g confined m ~e A~ment Proposal or these Ome~ Condi~ons re ~e con~, all se~ces d~bed ~ ~is _~cle ] ~t are c~used or necessitated M whom or m pm due ~o ~he ne~igm~ act or o~men of ~he D~i~ ~fessiom[ sh~ be perfo~ed by phc D~ ~ofes~onxl ~ z pm of the B~ic Serhc~ under the A~e~ment M~ no addi~ona[ co~e~anon ~ove ~d beymd ~e c~anon due fac D~i~ Pzofes~on~ for ~ B~c So,ices. inre~emg or concu=ent ne~ g~ce of~e Omer sha~ not limt ~ Desi~ YmfessionM's obiig~uons ~d= ~s Subse:~on 3.4.18. ARTICLE 4 OVv~ER'S RESPONSiBILITiES 4.1 The 0wu.= shall consult w/th the Desi~ Professional rega.rd~.g :equiremenrS for uhe Pmje~ includes (1) the Owner's objectives, (2) schedule and desi~. cens~am= and criteria, mciuding space re=.uiremenrs md reiadonsbxps, fle~bilitl,, exptmdabiiiry, special equipment, systems smd site requirements, as more speci- fica!!y desto%ed m Subsec~on 2.2.L 4.2 ,'l.ne Owner shall ~ta2olish and update ax oversi budge: for the Project, mclud./~g ~e Consmac~on Cost, ~Se O~ecs other costa and r=~onabic ccn~g~ci~ r~iared to ~1 or.ese costa. 4.3 ~ r~ques~ed by ~c D~i~ ProfusionS, ~he O~ shall ~sh e~denc~ ~at ~ci~ ~g~men~ have been m~e to ~lfiil ~e O~er% obli~o~ under 4.4 :_"i'h_, ~' Owner shall desi~ate a representative authorized to act on :,kc Owner's behaif,Mrh respect ~o ~i~e ProjeuL line Owner or such authorized reorescn.'otive shai2 render de*~sions in a 0~eiy mariner perr~inmg re docmmenm subrni~ed by the Desf_m,,. ?rofessional ~ order to avoid unreasonable delay in -&e ord~iy and sequential pro~ess of ~he D~s~ ?:ofessionai's so,wick. S :':>rch~aBID8 S.PEC'3000-3999\321 ~ Aeacbwaent A. 4.5 WhcT~ %~pilcaNe, ~he Owner shall famish ~.a~ew d~cfihing physics/c~t~sfies, I¢~ ~fisns ~d ufi~, ~oca~o~s ~or ~¢ Ate sf~cPr~ecg ~d a ~¢n !¢g~ d~ofipfion of the site. ~n¢ ~¢~ ~d I¢~ ~fo~fion shM1 ~clud¢, ~ app~c~l¢, ~ '~d !~¢s of s~¢¢~, ~¢~, pev~ ~d ad~o~g pmp~ ~d s~c~res; adjacsm ~age; fi~h~f-way, r~cfi~s, e~, en~oac~.sn~, zo~g, al=sd res~c~ons, 5ound~ ~d contours o~ ~¢ site; Iocafions, d~s~ons ~d nscess~ da~ p~ m ¢~g b~d~, o~¢r i~rove~ ~nd ~; ~d ~o~on conc~g a~bie ufiE~ se~ces and ~es, both pubic ~d pfi'~ta, above ~d below ~d¢, mctudinlinv~ ~d dept. ~ ~e ~o~on ~ ~e s~ey si~l be ~f~ced to a ~ojec¢ benc~rk. ' 4.6 Where appiieable, the Owner shall fam/sh the s~'rv'~'ces of geetechnicai e~gine~.s whe~n include bur ~ no~ l~ted ta mst bo~, t~t p~B, demotions of soil be~g sm~ rmB, hclu~g ne~sm~ cp~adons f~ m~eea~g mb-soil condigns, M~ r~ ~d apwopnate ~of~sional r~da~ons. 4.6.1 Tad Owner shall fi. mbsh the se~,wices of other consultants when such s~r~4c~s are reasonably requkerl by the scope of the ?roje~ and are requested by the Desi~ Professiona5 and are not retained by the Design Professional as parc of its Basic Serv/ces or,4.ddi~ional Services. 4.9' WHen not a part of ,~h¢ Additional Se~w/ces, the Owner shall fam/~h stm~amI, mes~hamea~, chemical, air and water pollution tes~, tests of hazardous :-na~erials, and other !aboraroW and envirenmentaI tests, inspections md repons required by ~w or the Conu-act Documents. 4.~ The Owner sha~t furnish ali leg~ aecouaxliug and ~sur~ee oourmelt,~g se:-v~ce~ as may be nec~sary ar ~ny ~W'ne £er the Project, including audid_ng services *uhe Owner may require ;o vmbfy the ConTacror's Applications for Payment or *o as¢~ how or ~or what p,zrposes the Contractor has used ~e money paid by or on behalf o£the Owner. 4.9 The se~wices, ioforgmlbon, surveys and repor~ requ/red by Own¢ under Sections 4.$ ~-mough 4.8 shall be in-rushed at ~e Owner's expense, and the Desi~ Professional shall be entitled to r¢!y upon the cecumW *nd corr,, idleness thereof tn the absence of any negiigence on the par: of the Desigz Professional. 4.i0 The Owner shall give prorrrgt wri~en notice to the Design Professional if the Ovmer becomes aware of any fault or defect ~ the ~oject or nonconformaz~ce with the Contract Documents. 4.11 Desiga ?rofessior~ shall propose language for certificates or cer~caUcrrts to be requested of the Design Professional or Design Professional's consu!tan~s and shall subre2~ tach ~o the Owner for review and ~prova/at Ieast £ourr~en ~}4) days prior re execution. The Owner agrees no~ to request edifications dm: would reeuire .lmowte~ge or services beyond the scope o£rhe Agreement_ ~~,_RTiCLE ~ CONST~U~ON COST 5.1 CONSTRUCTION COST DEFINED 5,1.1 The Construction Cost shall be the tota~ cost or m~r~ted cost to the Owner of ail elm-nears of the Project desn=o'ned or specified hy the Desi~ Professional, 5.1.2 Tad Consrruchon Cost shall include the cost at current market rates of labor and rr~tmbals furnished by the Owner and equipment designed, specife d, selec:ed or specially prey/heel for by h~e Design Professional, plus a re~onable allowance for the Contractor's over'ne?z/~nd profit_ In addition, a reasonable allowance get tq, ngencies abal/be included for rn~ket conditions at the 5me of bidding and for changes in the work durrng consnmcrion. 53,3 CoasTuct~on Cost does not include the :omp¢~adon of the Design Professional arid Dasign Professional's consultants, the costs of the la.~d, rights-of-way, financing or other costs which are the r~sponz~nil/ty of the Owner aa provid¢d in Art~cte 4. 5.2 RXSPONSIBIL1TY FOR CONSTRUCTION COST 5.2.1 Ewaluat~ons of r~he Owner's Project budget, prelirmna~, estimates of Censtmc~en Cost and detmled esmmres of' Consa-ucfion Cost =reoared by the Des/ga Prg£esslonal represen, the Design Professional's best iud_m-riehl as a design professional £armllar w~th the comtraction indus,',r-/. [t is recognize'd, t~owever, that neither the De. sign Professional nor the Owner has con¢ol over the cost of labor, matenais or equipmem, over the Conmctofs methods of dele:Waning bid prices, or over competitive b/dd/.,~g or market conciifions. Accord/ugly, the Design Professional cannot azd does not warrant or represent ~a£ bids or cost proposals ~.'iI not var7 from the Owner's Project budget or fi-om any e~mate o£Construcbon Cost or evalua~ion pr .~mred or agreed m by the Desig~ Professional. $.2.2 No fixed lin-at of Consauction Cost shall be established as a condi~on of the A~eement by ~e ~rmsh/ng, proposal or esrablishmen¢ of a Pro~eet budget, unless such fixed iizmt has been agreed upon in w~m-~g and s~gned by the par~ies ther=~o, gsuch a fixed 1Lmit has been established, the Design Pro£essional shail be pe~5~ed to include eon~ng:mcies for desi_m~., bidding and pried escalation, ro de,m-re, me what materials, ¢quipmear, corupon~t systems and types of co~.srraetion a_re to be included in. the Con~rac: Documents, ro make reasonable adiusmenm m the scope o£the ~rojec: and ~o include ~ ~he Ccn~-'~t Documents alternate Nds to adjust *he Consrruc~on Cost to the fi:ed limit. Fixe~i limits, ff~y, shall be increased in the ~a'uou~t of an incense in the Coatracr Sum ccc '.urrmg af-~er execution of ~e ConTac, ~or Cansr~c~on. 5-2.2 Lc the Procurerp~ent Phase h~s not corem, enoch within 90 days ~--ter the Desi~ Profeshon~ submiU ~e C~¢~c~on Doc~enB m ~e O~, any Profoot budget or f~ed Ik~t of Commotion Cost shail be adjusted ro reflect ch~ges in the genial level ofpnc~ in the cons~cdon ;mdus~ be~een ~e ~te of sff~s~ion of~e Cons~on Documenm to the 0'~er ~d hh~ da~ ~ ,*Nch er~os~ ~ sou~t :LRTICLE 6 OWN'mi%SHIP AND USE OF DOCD~-VI2gNT,q 6.1 T~e Draw/rigs, Specifications and other documenrz ~oared by :he Desb~_ Profess~on~l f~ n~s 2r~ec: ~e -~menz ef ~e P~ P"ofessionaI's se~ce md shall become ~he prope~/ of ~he O~er ,anon relation or co~iefion of ~he A~eemen:. ~e D~ Professional is entitled to re~ co~e~ of all such document. Such docum~ ~=~ int~ded only be ~plicabie to ~s Fro!ecl, md O~er's use of tach docume~m m_ o~ pr~m shaiI be ~i 0~n~'s sclc risk ~d ~e~e. ~ *~e :v~t ~h¢ O,~er ,~es ~y of rne ~omdon or mate~ats devaiope~ p~u~r ro the A~ment in ~e~ p~t or f~ o~er pu~os~ ~n ~c specffied m the'A~emm~ ~e Desi~ Professional ~s reie~e~ 5o~. ~y ~d z5 !NbiHD' rala~g ro ~Om use in that proem 62 Submission or dis~bution of documents to ne. eel official reguiam.r7 zequ/remenB or for similar pure. os~ i~n com-mc~.on ,ruth x%e Pro~eer is not ~o bc ¢onstrced aa publication i~ derogation of the Design Prof~sional's r~/ed Page 8 S:\prclq\BLDS 8PBC',3000-2999~3215 :k~'tachrmmt A. aoc ~~x..RTt~E 7 TElt,"vLINATiON, SUSPlgNSIOt~,I OR ABAINDOINtVIENT 7.t The Design. Professional may tern-inure the Agreement upon not less than d-drt'f days ,~ritmn notice £nould the Owner fail .mbs~mdally m p~rform in accordance with 'he terms of the A~e~-muent threu~a no fault of the Design Profes~ioral. Owner may rermmate the Agreement or any phase thereof wi~ or ~Mthout cause upon th/r~y (30) days prior wr*tten nolic¢ to the Design Professional. A2I woffK and labor bemg performed nnder the Agecment shall cease imxnediate!y ,~on Des/g-z Prof~ssionmI's r¢c~pt of such notice. BcZbre nbc end of thc thzrry (30) day penod, Design Professional shr~I i'~vodce the Owner for ad work it satisfg¢%o~-dJ.y performed p~or zo the receipt of such n'cfi~e. ,_No amount shall be du~ for lost or aniSe[pared profits. _All p]ans, field surveys, and or_her data related to thc Pro~ect shall become propetw of t~he Owner upon ternnn~fion of the Ageem~nt and sha~l be promptly delivered to the Ovdne~ ~n ~ reasonably orgmnZed form. Should Owner subsequently con,ran: w'kh a new Design ProfcssiongI for continuation of servthas on ~ Project, Design Professional shall cooperate in prov~din$ ;mtbmmlaon. 7.2 r.f the Project ~-s suspended by ~e Owner for mor~ than 30 consecutive d~ys, the Design Professional ~b.~t b~ compensated for ger~ce~ s~r[sfactority performed prior to no[ce of suck suspension. When the Project is resumed, the Design P:oi%ssions-l's comp~nsalaon shall be ~qu%~bly adjusted to provide for exp~,se~ Lnourred m the mzerraption and res-amp, don of ~-Desbgn Professional's se~wices. 7.3 The A~eement may be tem'anated by .~e Owner upon not tess than seven days written nolice to the Des/gu Professional in the event t/mat tee ~roje~ is permanenr!y abandoned. Mthe Project is abandoned by the Owner for mo~ than 90 consecutive days, the Design Professional or the Owner may t~.-n-m/nat¢ the Agreement by ~ng wrir~e~l 2OtlC~, 7.4 F~iure of the Owner to m, ake payrnenrs to the Design ~o£essional for work sads~cmfily completed in accordance with the Agre~-~rnent sh~I/be considered subsrandai non- p~r/formance and came for term/nation. 7.5 ~the O~wner falis to make paym~at to Design Professional within ~ (30) days of receipt of a statement fez se,'-vbces properly and sat~afactorfly performed, the Design · Professional .may, upon seven days written notice to the Owner, suspend perfonmance cf se,w/cos under the Agreement. 7.6 In the event of emmma~ion nor the fault of the Desi~ Professional, the Design ~ofessionat shall be corrrpensated for sel-vbc~ properly and sansfa~torfiy performed prior to t~rn~nafion. A.RT!CLE 8 PA iY'Y[ENTS TO?=IE DESIGN PROFESSIONAL 8.1 DIi:LIgCT PERSONi~L EXPENSE 8.1,1 D~rect Personnd Expense is defined as the direcX salaries of the Design Professional's personnel engaged on ,'_he Project and ~he pordor of the cosl o£ their mandatory and cu~tomary contfibut/ons and benefits related thereto, such as emptoyrph. ' n: taxes and other statutor7 en!~lcyee benefits, fi'~snrance, sick leave, holidays, vacations, pensions and simii~ cone-curious and benefits. 8.2 REIrvl]3U'RSABLE EXPENSES 8.2.t Reimbursable Expenses are m addison to compe~atior for Basic and Additional Services and include expenses incurred by the Design Profesmonal and Design Professional's employe~ and consultants in the interest of the Proje~, as identified m the folloxhng Clauses.' 8-2.1,I Ex?cmo of tmnsportadon in connecnon with ~e Project; expenses in connection wit'n author/zed out-of-town travel; long~distance commumcanons; and fern paid for securing approval ofan~horides haying jurisdiction over the Project. 8.1.1.2 ~xpense of reproductions (exc~t the re,eduction of the sero of documents referenced in Subsection 2.5. I~), postage and handling of Drawings, Spec/ficatzons and other do,amends. 8.2.1.3 tf anthorized m advance by the Owner, expense of overfame work re~irmg higher than regular rotes. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner.' 8-*.1.5 E,?ense of computer-cried design and drafting equipment time when used m connection vath the Project 8.2.1.6 0%her exposes that are approved in advance in wfitiag by the Owner. 8.Z P.,&YiVLENTS ON ACCOGNT elf BASIC SERVICES 8.3.1 Paymenu .~br Basic Sm-races shall be made monthly and, where appl/cabte, shall be in proportion re services pe~ormed '¢dthbn each phase of set+, doe, on -.he basis se*. forth m Section 2 of the 3-~eement and the schedule of work. 8.3.2 ~ and to Lhe extant rhar ~e mine initially established in :he Ageement is exceeded or ex~ended uhrou~h no fault of the Design Professional, cor~pensa~on for any set-Aces renoered during me add/der ai period of lime shall be compumd in the mm~n~ set forth in Seenon 2 of the Agr~emm[ 8.3..3 ~.~en con-.re, emotion is based em a percentage of Consmmdon Cost md any oordom of the Proiect are deleted or oth~.'?~,ise not cons~ocmd, aornoema~on for :hose pordons of the Project shall be payable :o rio extent se'~c,s m-e '~efforrned on those po~ons, m accsrdance wir. h the schedule set fo~h in Secnon 2 of [he A~eemen[ based on (I) :he iowes~ bona fide bid or (2) ~fno such bid or proposai is re~,.ved, ,'-he most re~n~ pr~iin*Jns.W estimate of Cons~aeUon Cost er demi]ed estimate of Consrmcncn Cost for such oo.rtons of the ?reject. 8.4 PAY!?fEb.TS ON ACCOI, I-N.T 0F .4_DDITIONAL S;ERVICES 8.4.! P-x~wn. ezm on ~ccomnz o£%ke Design Prof~sional's Additional Se,'-m. ces and for ~eim..bursabie Exp. ens~ shall be made monthly ~¼th/n 3 0 days a~er rne presentor:on ,m ~e Owner of the Design P_-of~sional's statement of se,~ces rendered or ~=enses incm-r_e~i 8.5 PAYM~ENTS WITJ_I:tEZ.D No deduc~ons shall be ,-made ~om :he Des{~~ Professionai's compensation on iccount of penalW, liquidated damages or other i--om paymanrs re cen~cmrs, or on account of ~ ocs: of,inanges {n the worx other than those for wNch ~e Design ~of~onal is responsible. Page 9 S:'¢reh'83LDS SPEC,3000-3999\~215 A[rachment 8.6 DESIGN PROF'g$$ION_4~L'S ACCOLrNTING RECOtLD$ D~i~ Prof~s~o~l si~l m~¢ zv~ol¢ to 0 '~ or O~es~s aa~z~d r¢~¢n~five zecor~ of ~bumfot¢ E~es ~d ~e~es p~g m Ad~l S~c~ ~d s¢~c~ p~o~d on ~e b~is of a mul~ple of ~eat Pemo~e~ ~s¢ for ~ec~on ~d cop~n~ dm-ma re~!~ busm~s ho~ for ~e~ ye~ ~ ~ dat~ of ~m ~ C~cate of Pa~2 or ~ ~y Hfi~d~ rmi~d ~o aha Project i~ ~. w~ch~v~ da~ is Ia~er. .4~RTICLE 9 INDE~'vtNITY 9.1 The Design Professional shall indernn~-y and save and hold ha. nm!ess ,the Owner and its o~Soer~, agents, and cm~loyees from and against =-any axtd ali liability., · clan'ns, demon, ds, damages, losses, aa'id expenses, including, but net lin-areal To court costs and reasonable attorney fees ~curred by the O~arner, and including, without lin/tarpon, damages ~'or bodily and personal mjury, death and property damage, re~ultfng from the n=glgen~ acts or omiss~ons o£the Design Professional or shar~hoiders, agents, or employees in ~e performance of the Agreement. 9.2 Noth/ng herein:shall be construed to create a liability to any person who is not a pas'U/to the Agreement, and norJting herein shall waive any of the cartes' defenses, both a~ law or equi .O, to any cia{m, cause of aztion, or litigation filed by anyone not a par~ to the A~eement, including the defense of govenn_men'~I '/mmuni~, wlnch defenses are hereby expressly reserved. A_RTICLE 10 ]]'TStZR_~XfCE During the performance of r_he Services under the Agreement, Design Professional shall maintain the following {nsurance ,with an insur~c¢ company ]ic~nsed or aur. honzed to dc business in ~e State of Texas by the State Msurance corm'mssioa or any successor agency that has a rating ~th Best R~te Carriers of at tcas~ an A~ or above: ~ 10.1 Comprehensive General Liability Inshranoe wish bodily infury limits of not less than $I,000,000 for each occurrence and not !ess r. han 22,000,000 in ~e ag~¢gate, and with prope:ffy damage lin-fits of not less than $100,000 for each occurrence and not tess than $250,000 in the ag~egare. 10.2 Automobile Liabili~ Insurance with bodily iWury limits of not less than $~00,000 for each person and no~ leas than $fi00,000 for each accident, and with oroperry damage ffrpdts of not ~css than $100,000 for each accident. - 0.3 Workers Compensation Insurance in accordance w~th statutory requirements, mud Employers~ Liability Insurance v, dnh timir~ of not !ess than $100,000 for each acmden: including occupational dfsemse. 10,4 Professional Liability Insurance w/th tim/ts of not less than $I,000,000 annual 10.5 The Design Professional shall furnish insurance certificatea or insurance isotic/es to th~ 0va~¢r evidencing insurance in compliance with this Article 10 at the time of the execunon of the Agreemenn ~ne Oeneral Liabil/ty and Automobil= L/abl]i~- insurance policies shall name the O-,~'nsr as ~,n add~'fional insured, thc Vv-orkcrs' Compensation policy shall sontalna waiver of subrogat:on in favor of the Owner, and each soticy shalI sontain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. I~ such event, the Design Professional shall, prior to the ef£eotiv¢ :la~¢ of the change or canoellanon, furnish Owner w/th substitute certificates of insurance meeting the requirements of ~is Article I 0. A_RTICLll ii ~IISCI;LLANEOUS PROVISIONS lt.1 The Agreemen[ shall be governed by the laws of r. he State of Texas. Vmue of any suit or cause of ac~on under the Agreement shall lie exclusively in Denton County, Text. tl.2 ~e Owner a~nd Design Professional, respectively, bind themselves, their partners, successors, assigns and legal re~resentatfves to the srh~ party to this Agreement and to abe par~ners, successors, assigns and legal representatives of such other parry with ~mspeot to all covenants of this A~reement. The Design Professionai shall not assign i~ fl~terests in the Agreement w/thout the written consent of the Owner. 11~3 The term Agreement ~ used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced m Section 3 cf the Agreement which together represen~ the mOre and inte~ared agre~nent between the Owner and Design Professional and supersedes ail nnor negotiations, represenmt/ons or a~eements, e~ther written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design }rofessional. When mr~-orering the A~eement the executed A~eement, Proposal, these O enerai C ondiffons and the o thor a tmclmaents referenced in S ecfion 3 ofthe Agreement shall to the e x~ent that is reasonably possible be read so as m b~n-nonize the prey/clans. However, should the pronsions of these documents be in conflict so that they can net be reasonably harmonized, sus'n documenm shall be Wen pnonty m the ~ollowing erde~. l. The executed ~k.greemen¢ 2+ Attachments referenced ~ Section 3 of the .<grecment other than the Proposal 3. Th. ese General Provisions 4. The Pr. eposzl t1.4 Nothing conmmed fn the Agreemen* shall create a contractual relationsi0io wiLh or a cause of soften in favor of a th/rd pmrw against either the Owner or Design Proi~sional. - ' - J. 1.$ Upon receint, o£urior, written approval of Owner, the Des/gn Professional shall i,2~ve the n~-Jat to fl%lode resresenmfions of the design of *~he ~-:~ oj~t, ::_¢.udin,', ~ ~' photo~anhs of the *xmfior and :_n[~for, among the Design ?ro£essional's promo~onal sad professional manuals. The D~i~ Pmf~sn~'s ~nals ohM! not mciude confidential or propffe~ ~o~a~on ~ the O~er l~ previously admsed the Desi~ Pmfessiop~i ~ ~m~g of the specific ~c~xnon comidered by~ Omn~ re be comf- d~hai or propnem~. %ne O~ner shall pro,de profession~ credit for :he D~ Prof~sional on ~e cO~dc~on ~ art in the promofion~ ma~als for the Project. 1 ! .6 Approval by (~e O~_~ shall not cons~t¢, nor be de--ed a re~e~e of ~¢ responsibiH~ ~d ]iabiii~7 of ~he Desi~ Profes~aL. i~ ~ioyees.~ . associates, agent, subconcac;ors, ~d subconsult~rs for ~e zcc,~any and *o~etency of their desire or other work: nor ¢hMl such cpprovai be ~eemed :o be an ~sumon~ of such rcsponsibiliW by the 0~ for tony defect fn :he desi~ or other work proofed by ~le Desi~ ~of~sional irs ~moiove~. suboon~ctors, r. gmB, and cc.ns~l~an~. 11.7 :~I notices, ¢o~unicxfions, ~d re~or~s requir*d or pe~ed und~ the A~ecmanr shall be oersonaHy d~liv~ed or ~alled :o the reso~tive o~ea by denosimng same ~n the United S~ms mad to tlne address sho~ below si~amre block on :b_e A~eem~t, ce~ed m~l, remm receip[ requested, unless othe~Mse s~ecifed a~ein. Ail noffces shall'be deemed s~ec~ve upon receipt by ~e ~ re whom such notice ~s ~v~, or -~firhm ~-e= (5) days ~r m~hng. Page !0 S;'..prch'~S SPEO3000-5999~32!5 ASachm~t A. doc remainder of ~¢ A~a~¢nt cud shil not cause ~¢ rcmaiud~ to be ~val~d or un~orccabi¢. ~ such ~v~t, ~ p~¢s sh~ rcfo~-~e k~¢¢m~ ro r~p~ac¢ such s~cken pro.sion M~h a v~id ~d ~forceabt¢ pro~on which com~ ~ c~osc ~ possible to ¢~r~smg ~¢ mention of~¢ ~cken provision. 11.9 ~c Dcsi~ Professional skil co~ly ~ a~ redeem, s~t~, and loc~ laws, roles, relictions, ~d ~din~ces aoplicabl¢ to ~c wo~ covered hereunder as ~c,/ may now read or horologer be ~dcd dung thc ce~ of t~s A~ccm~r. ' · iI.~0 L~ pcffo~g ~c S~ccs rcqu~cd hcrc~d~, ~e D~si~ Profession~ ¢~1 not disc~a:¢ a~mst ~y p~son on ~¢ b~is of ~cc, co[~, roii~cn, sex, nafio~ ofi~ cr acas~, age, or physic~ h~cap. l l.ll ~a¢ captions 9f thc A~ecm~¢ ~c for ~b~doni pa~os~ o~y, md shall not in my way ~¢ct ~¢ ~bs~dve to~ or condi~ons of t¢ A~cmcnt S:'?rch~BIDS SPEC'.3000-3999~J215 At~ac~.,-n~n~ &.doc AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Janet Simpson 349-8271 SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas approving an Agreemem between the City of Denton and the North Texas Umpire Association; approving the expenditure of funds for the purchase of certified softball officiating services available from only one source in accordance with the provisions of the state law exempting such purchases from the requiremems of competitive bids; and providing an effective date (File 3315-Agreemem with North Texas Umpire Association in the amount of $40 per game for an estimated award of $44,000). FILE INFORMATION The Agreement between the City of Denton and the North Texas Umpire Association is to supply officiating services for the Adult Slow Pitch spring, summer, and fall seasons for men's, co-ed, and women's ASA softball games. Each year the Parks and Recreation Department comacts the Amateur Softball Association (ASA) District Commissioner to locate an ASA Umpire's Association that would be available to umpire adult softball league games in Denton. This year and in previous years, the North Texas Umpire Association has been the only association (sole source) available for officiating sanctioned adult softball league play in DeNon. Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source do not have to be competitively bid. The North Texas Umpire Association will officiate 1,100 adult softball games for the Parks and Recreation Departmem during the 2004-05 fiscal year. The Association will be paid $40 per game and will provide two ASA umpires and one scorekeeper per game. PRIOR ACTION/REVIEW Each fiscal year, beginning in 2000, the City Council has approved a comract between the City of Denton and the North Texas Umpire Association based on the fact that they were the only association (sole source) available for officiating sanctioned adult softball league play in DeNon. RECOMMENDATION We recommend this Agreement be approved in the amount of $40 per game in the estimated total amount of $44,000. Agenda Information Sheet March 22, 2005 Page 2 PRINCIPAL PLACE OF BUSINESS North Texas Umpire Association Denton, TX ESTIMATED SCHEDULE OF PROJECT This Agreement will remain in effect through December 15, 2005. FISCAL INFORMATION This Agreement will be funded from Parks and Recreation account 411170.7868. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AlS-File 3315 S:\Our Documents\OrdLuanccs\05~North Texas Umpire Assoc Ordinance.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS UMPIRE ASSOCIATION; APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF CERTIFIED SOFTBALL OFFICIATING SERVICES AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISIONS OF STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including items that are only available fi.om one source because of patents, copyrights, secret processes or natural monopolies, films, manuscripts or books, electricity, gas, water, and other utility purchases, captive replacement parts or components for equipment, and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an agreement for certified softball officiating services between the City of Denton and the North Texas Umpire Association in substantially the form of the 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 ,2005. ATTEST: JENNIFER WALTERS, CITY SECRETARY. EULINE BROCK, MAYOR BY: AGREEMENT BETWEEN CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND NORTH TEXAS UMPIRE ASSOCIATION The City Of Denton Parks and RecreatiOn DePartment (hereinafter "PARD") of Denton, Texas and the North Texas Umpire Association (hereinafter "NTUA") enter into the following Agreement: 1. CONTEST The NTUA agrees to officiate the 2005 AdUlt Slow-Pitch Seasons for Men, Women and Coed ASA softball games that are scheduled by PARD at North Lakes Softball Complex, Denton, Texas. B. The start date is March 2005 and runs through December 2005. PARD will provide NTUA with a schedule of games depicting leagues and their field assignments for the season. NTUA will receive this information at least two (2) weeks before the season begins. PARD will also provide NTUA with the league's current rules and regulations that are modified from the current Amateur Softball Association (ASA) rules. NTUA will schedule officials so that the ability level of the official will match or exceed the level of league play on each field. NTUA will provide up to two (2) umpires and one (1) scorekeeper for each game. 1) Optimally~ each field will have two (2) umpires, but when that is not possible, NTUA will insure that the official working alone will be a qualified umpire. 2) The Umpire-in-Charge (UIC) scheduled for each night will ensure that the officials assigned to each field are capable of working that particular level of play. 2. PAYMENT A. In consideration of such services, the PARD wilt pay NTUA a total of $40.00 per game. Payment Determination Both parties will determine the payment to be the calculated number of games scheduled for each particular league times the rate of $40.00 per game.' C. Schedule of Payment 1) Initial Payment PARD will make an initial payment in the amount of one-half (1/2) of the total expected amount for estimated services no later than 7 days before the first game of each season. 2) Final Payment PARD will make the final estimated amount owed to the NTUA on or before 14 days after the first scheduled game. AGREEMENT BETWEEN CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND NORTH TEXAS UMPIRE ASSOCIATION D. If NTUA provides only one official for a game, then PARD will be credited $7.00 for each game that has one official working alone. This credit can be used during the current season or during the next season. 3. OFFICIALS NTUA represents officials that are, or will be by the date of the contest, a duly registered umpire who is a member in good standing of the ASA. 4. INTERPRETATION The Constitution, By-laws and rules and regulations of ASA and of NTUA are considered a part of this agreement and shall govern, except as modified by this Agreement, anydisputes adsing out of this Agreement. Both parties to the Agreement agree to be so bound. If PARD offers a "coaches meeting", NTUA recommends that the executive committee be notified of the date, time, and place of the coaches meeting. We would like to explain new rules, game procedures to the new coaches, and discuss how on-field disagreements will be handled. 5. VOIDING OF AGREEMENT This agreement shall become null and void upon the demise of either organization. This agreement may be canceled at any time by the mutual written consent of both parties upon 30 days written notice. This agreement is void if either party cannot comply with its terms. 6. NOTIFICATION/SCHEDULE CHANGES All notifications concerning the provisions of the document or of schedule changes shall be in writing to the below address. All game changes will be given to NTUA Assignor 24 hours prior to the change. If notification is not given in this timely manner, an additional administration fee of $3.00 per game will be charged to PARD. A. If initial notification is by phone, then a written confirmation shall thereafter be sent within seven (7) days. 7. INDEMNIFICATION NTUA agrees to indemnify, defend and hold harmless, PARD, the CITY, and their employees and officers from and against any and alt claims or actions for injuries or damages, including death, arising out of NTUA's performance under this agreement, including the negligent acts or omissions of the umpires provided for under this agreement and any claims or actions made or brought by an umpire. This agreement is executed to be effective as of authorized representatives of the parties hereto as set forth below. ., 2005 by AGREEMENT BETWEEN CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND NORTH TEXAS UMPIRE ASSOCIATION City of Denton, Texas Date Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY North Texas Umpire Association Na~:l~ ill v '-. Title BY: Na~e Title City of Denton Parks and Recreation Department Kathy Schaeffer 349-8731 349-8384 fax APPROVED AS TO LEGAL/~ORM: BY: North Texas Umpire Association 524 N Locust, Suite A Denton, TX 76201 898-1561 380-9235 fax AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 22, 2005 Electric Engineering Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City of DeNon, Texas authorizing the City Manager to execute a Third Amendmem to Professional Services Agreemem for engineering services and related services to approved electrical power system construction projects for Denton Municipal electric with SGS Witter, Inc.; authorizing the expenditure of funds therefor; and providing an effective date. (The Public Utilities Board recommended approval with a vote of 5 to 0). BACKGROUND DeNon Municipal Electric has historically relied on outside professional engineering services for the design of substation and transmission line projects. Because the need for major, design- imensive projects does not occur on a regular basis, it is not cost justified to maimain an engineering staff'that could address all conceivable technical issues and project developmem needs. Using engineering consultants is an efficient way to temporarily augment the local engineering staff'with specific technical personnel or simply to provide the manpower to complete project designs within required timeframes. DME must employ engineering consultants to produce the structural designs and the associated drawings and documentation for substation and transmission line projects. DME has also used engineering consultants to assist in preparation of system protection designs and to be available as a consultant for technical issues that arise from time to time. A professional services agreemem has been in place with SGS Witter since November of 2000. SGS Witter specializes in providing engineering and other professional services to electric utilities. They have offices in Lubbock, where the firm was founded in the early 1980's, in Albuquerque, NM, and in Alexandria, LA. The existing agreement, while it facilitates a range of engineering services, was established primarily for developmem of substation, transmission line, and relay protection designs on a non-exclusive, as needed basis. As time has passed, the relationship between Electric Engineering and SGS has grown imo a very beneficial partnership where each organization brings certain strengths to the project developmem process. DME has developed the core concepts for each project, completed land transactions, obtained geotechnical investigations, prepared or obtained the site grading plans, arranged for purchase of all the material and equipmem items, arranged for any needed construction contracts, coordinated activities between all parties involved, and prepared most of the system control and system protection designs. SGS has prepared the structural, formal site layout, foundation, and bus designs and the project drawings for each of these areas. This partnership has achieved a good efficiency by allowing each group to comribute to projects using their respective strengths. The SGS and DME relationship has been efficient and cost effective and is one that DME desires to continue. SGS has been very supportive in allowing DME to complete as much project work as possible with in-house personnel. Sharing project development responsibilities has helped in controlling outside costs and has helped minimize the expenditures for services from SGS. Total payments to SGS for all projects have been within reasonable expectations. The original expenditure amount approved for the SGS contract was $350,000. This amount was an estimate based on projects contained in the 2001 CIP for which it was optimistically thought that the designs might be started by the end of FY 2001. It was known at the time the estimate was made that this initial amount would not be sufficient to complete the designs for all the projects in the CIP. It was expected that the right-of-way for the new transmission lines from Denton West to Iron Horse Interchange and on to the Hickory Substation and the site for the Iron Horse Interchange and Substation would be obtained in 2001 and that these would be the first projects to be undertaken. Easement and land acquisition delays have held these projects up in part or completely for over four years. Design has progressed to the point it could for these projects, and the Industrial, Woodrow and Spencer projects were completed. Because of the land related delays and work on other smaller projects (and because of the efficiencies gained in the process), the original amount has produced more benefit than was anticipated. With the exception of the Spencer Switch project, and two short sections of transmission pole replacements, all of the transmission and substation projects that have been worked on were in the FY 2001 CIP. The following table is a summary of the projects, the amount paid to SGS for each (as of the last accounting), and the current status. Project Expenditures and Status Project % Complete Amount Industrial Substation 100% $32,721.50 Woodrow Substation 100% $29,179.66 Spencer Switch (station and relay design) 100% $92,195.39 Pockrus Substation Distribution Bus Support 100% $497.40 1 35 Crossing Near the Vintage 100% $470.55 Spencer 69kV Transmission Line Reconstruction 100% $42,571.00 Denton North Distribution Substation Addition 98% $14,540.66 Denton West Interchange Addition 85% $19,094.53 Hickory Substation Addition 90% $50,675.70 Denton West to Iron Horse Transmission Line (4.6 miles, new) 35% $18,098.80 Iron Horse to Hickory Transmission Line (2 miles, new) 20% $20,709.17 Reconstruct 3 Spans at Bonnie Brae & Stella (Locust to Hickory 69kV TM) 60% $6,792.71 Reconstruct 5 Spans at Bonnie Brae & University (Hickory to North Lakes 69kV TM) 65% $3,299.40 Brazos Tie to Denton North & Re-feed 60MVA Transformer 5% Not Billed Total $330,846.47 The following table shows what SGS has estimated to be the funding requirements for completing all projects that are in progress and for completing the Iron Horse Interchange and Substation. SGS has not been assigned to begin work on the Iron Horse station. The listing does not include the following 2005 CIP projects: reconstructing the Spencer to Kings Row, the Kings Row to Denton North, part of the North Lakes to Hickory, and the Hickory to Locust transmission lines. The design work for these projects will begin once the current design projects are complete and estimates have been compiled. Estimated Amounts Needed for Completion Project Amount Denton North Distribution Substation Addition $1,000 Denton West Interchange Addition $15,000 Hickory Substation Addition $12,000 Denton West to Iron Horse Transmission Line (4.6 miles, new) $31,000 Iron Horse to Hickory Transmission Line (2 miles, new) $72,000 Reconstruct 3 Spans at Bonnie Brae & Stella (Locust to Hickory 69kV TM) $10,000 Reconstruct 5 Spans at Bonnie Brae & University (Hickory to North Lakes 69kV TM) $10,000 Brazos Tie to Denton North & Re-feed 60MVA Transformer $60,000 Iron Horse Interchange and Substation $100,000 Contingency (likely to be the Fort Worth Drive Substation design) $39,000 Total $350,000 DME believes that changing engineering firms at this time would be costly and immensely burdensome. DME has had an excellent working relationship with SGS. While a new engineering firm could use the documents that SGS has already created, they would have to verify all design calculations, verify all surveying and field data, and transfer data to their software programs and standard forms. In short, any new engineering firm would have to completely reaccomplish the design work that SGS has already done in order to be able to place their engineering seal on any document. Sealing the unsupervised work product of another who is neither an employee nor a subordinate is considered a violation of the Texas Engineering Practice Act. The result of changing engineering firms for the projects that have been started would be that DME would have to pay again for up to 90% of all the work that is transferred. Additionally, DME would have to spend a tremendous amount of time introducing a new engineering firm to all project requirements, field conditions, and constraints; communicating philosophies and methodologies; training them about DME's power system; and satisfying them as to any concerns or questions. Considering these issues, there is no financial incentive or any other incentive for DME to consider other engineering firms at this time. The first and second amendments only extended the time the agreement would remain valid. OPTIONS Approve the Professional Services Agreement amendment. RECOMMENDATION Approve an amendment to the Professional Services Agreement with SOS Witter increasing the maximum amount of the expenditure from $350,000 to $700,000. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The original Professional Services agreement was approved in November of 2000. The Public Utilities Board recommended approval of this item at their February 28, 2005 meeting by a vote of 5 to 0. FISCAL INFORMATION Project numbers are assigned and charges accumulated by the JD Edwards project accounting system. BID INFORMATION Section 137.53 of the Engineer Standards of Compliance with Professional Procurement Services Act does not allow a governmental entity to request or obtain a competitive bid to perform professional engineering services or to use pricing information when selecting a competent and qualified engineering firm. EXHIBITS 1. SGS Witter Proposal 2. Proposed Third Amendment to the Professional Services Agreement 3. PUB Minutes Respectfully submitted: Prepared by: Sharon Mays Director of Electric Utilities Chuck Sears Engineering Administrator ORDINANCE NO. 2005- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES AND RELATED SERVICES TO APPROVED ELECTRICAL POWER SYSTEM CONSTRUCTION PROJECTS FOR DENTON MUNICIPAL ELECTRIC WITH SGS WITTER, INC.; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it necessary and appropriate and in the public interest to continue to engage the engineering firm of SGS Witter, Inc., a Corporation ("Witter"), of Lubbock, Texas, to provide the City with professional engineering services pertaining to Witter's work on approved electrical power system construction projects for Denton Municipal Electric; and WHEREAS, the City has previously retained and engaged the professional engineering services of Witter over the last four (4) years, and Witter has operated under previous professional service agreements, signed by the City Manager, regarding the Teasley Substation Project and regarding various capital improvement projects and structural engineering projects which have demonstrated Witter's expertise in the field; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services by Denton Municipal Electric, and that limited City staff cannot adequately perform the specialized engineering and other services and tasks, with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a city may not select a provider of professional services on the basis of competitive bids, but must select the provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and the City Council hereby finds and concludes that Witter is appropriately qualified under the provisions of the law, to be retained as an engineering firm for the City and for Denton Municipal Electric, respecting the broadening of this engagement; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional services, as set forth in the Third Amendment to Professional Services Agreement for Engineering Services and Related Services Pertaining to Approved Electrical Power System Construction Projects for Denton Municipal Electric; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the recitations contained in the preamble hereto are true and correct and are incorporated herewith as a part of this Ordinance. 1 EXHIBIT 1 SECTION2: That the City Manager is hereby authorized to execute a "Third Amendment to Professional Services Agreement for Engineering Services and Related Services Pertaining to Approved Electrical Power System Construction Projects for Denton Municipal Electric" with the engineering fn'm of SGS Witter, Inc., a Corporation, of Lubbock, Texas for professional engineering and related services pertaining to the interests of the City and of DME, as hereinabove described, in substantially the form of the Third Amendment to Professional Services Agreement; attached hereto and incorporated herewith by reference. SECTION3: That the award of this Third Amendment to Professional Services Agreement is on the basis of the demonstrated competence and qualifications of the firm of SGS Witter, Inc., and the ability of the firm of SGS Witter, Inc., to perform the professional engineering and related services needed by the City for a fair and reasonable price. SECTION4: That the expenditure of funds as provided for in the attached Third Amendment to Professional Services Agreement is hereby authorized. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY ,- S:\Our Documents\Ordinances\05\SGS Witter Inc-3rd Amended PSA-DME-2005,doc STATE OF TEXAS COUNTY OF DENTON THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING SERVICES AND RELATED SERVICES PERTAINING TO APPROVED ELECTRICAL POWER SYSTEM CONSTRUCTION PROJECTS FOR DENTON MUNICIPAL ELECTRIC THIS AGREEMENT is made and entered into on the day of ,2005, by and between the City of Denton, Texas, a Texas Mtmicipal Corporation, with its principal offices at 215 East McKinney Street, Denton, Texas 76201 (hereinafter "OWNER"); and SGS Witter, Inc., a Corporation, with its corporate office at 4727 South Loop 289, Suite 201, P.O. Box 53969, Lubbock, Texas 79453 (hereinafter "CONSULTANT"); the parties acting herein, by and through their respective duly-authorized representatives and officers. WHEREAS, OWNER and CONSULTANT previously entered into a Professional Services Agreement on November 7, 2000 regarding the design for approved electrical power system construction projects for a one-year term, on a non-exclusive, as-needed basis, as requested by DME, said Agreement providing for a not-to-exceed mount of $350,000 payable to CONSULTANT by the OWNER for work satisfactorily completed pursuant to the Agreement; and WHEREAS, on or about November 21, 2001, but effective as of November 7, 2001, the OWNER and CONSULTANT entered into a First Amendment to Professional Services Agreement, solely to extend the term of the above Agreement through November 7, 2002; and WHEREAS, on or about December 5, 2002, but effective as of November 7, 2002, the OWNER and CONSULTANT entered into a Second Amendment to Professional Services Agreement, solely for the purpose of extending the maturity of the First Amendment past November 7, 2002, until the $350,000 funds originally contracted for in the year 2000, have been spent on this engagement; and WHEREAS, the $350,000 in funds provided for in the original Agreement are nearly expended, pursuant to the Agreement, and considerable existing work in the form of six projects is in progress, and new projects are planned as well, and are on the horizon regarding the design for approved capital improvement plan electrical power system construction projects for D/VIE; and WHEREAS, the existing engineering staff of DME cannot perform stmctural design services, and CONSULTANT, over the past four years has functioned in that capacity, and in other necessary capacities, and has demonstrated to OWNER'S satisfaction, CONSULTANT'S competency to perform; and DME has proposed that an additional $350,000 in fimds be added to the original Agreement so that the work that has been started and the work that is slated to be done, can be done; and Page 1 of 12 EXHIBIT 2 WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do hereby mutually AGREE as follows: CONTINUED EIVlPLOYMENT OF CONSULTANT The OWNER hereby contracts w/th CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to continue to perform the services herein in connection with the Projects, as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas; the professional services set forth herein are in connection with the following described continued capital improvement projects (the "Projects"): Professional engineering and other related services pertaining to the support of design for approved electrical power system construction capital improvement program projects on a non-exclusive, as- needed basis, as is specifically requested by Denton Municipal Electric ("DME"). A R TICI .F. 11 SCOPE OF SERVICES The CONSULTANT shall perform the following basic services in a professional manner: CONSULTANT shall perform all those services as are necessary and as described in the letter from Steve Owens, P.E., Vice President of CONSULTANT to Chuck Sears, Engineering Administrator, DME, dated February 16, 2005 being CONSULTANT'S "Proposal to Denton Municipal Electric" which is attached in pertinent part hereto as Exhibit "A" and is incorporated herewith by reference. If there is any conflict that arises between the terms of this Agreement and the Exhibit attached to this Agreement, then the terms and conditions of this Agreement shall control over the terms and conditions of the attached Exhibit. ADDITIONAL SERVICES Any additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included as Basic Services in the above-described Scope of Services, set forth as provided by Article II. hereinabove, shall be later agreed-upon by OWNER and CONSULTANT, who shall determine, in writing, the scope of such additional services, the mount of compensation for such additional services, and other essential terms pertaining to the prov/sion of such additional service by the CONSULTANT. Page 2 of 12 PERIOD OF SERVICE This Agreement shall become effective upon its execution by the OWNER and the CONSULTANT, and services shall be provided hereunder upon the issuance of a notice to proceed by the OWNER. This Agreement shall remain in 'force for the period of time that may reasonably be required for the completion of the Project activities, including Additional Services, if any, and any required extensions approved by the OWNER; or until the additional $350,000 in funds which are advanced pursuant to this Third Amended Agreement (hereailer "this Agreement") have been expended, whichever event shall first occur. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in the performance and completion of this Agreement. CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule reasonably established by the OWNER, acting through its Director of Electric Utilities or her designee. AR TICI ,E V COMPENSATION A. COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense (other than "per diem" expense), based upon actual cost plus 10%, for any out-of-pocket expense reasonably incurred by the CONSULTANT related to its performance of this Agreement for long distance telephone charges, tetecopy charges, messenger services, printing and reproduction expenses, out-of- pocket expenses for purchased computer time, prudently incurred travel expenses related to the work on the Project, and similar incidental expenses incurred in connection with the Project. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay CONSULTANT, based upon the satisfactory completion of the Basic Services tasks set forth in the Scope of Services as shown in Article 1I above; as follows: i. CONSULTANT shall perform its work on this Project on an hourly fee basis, plus reimbursement for alt reasonably incurred out-of-pocket expenses, billed monthly. CONSULTANT shall bill from time sheets, in minimum one half (1/2) hour increments of time, at the rates set forth in CONSULTANT'S "Proposal to Denton Municipal Electric," a five (5) page document, in pertinent part, dated February 16, 2005 l~om CONSULTANT to OWNER respecting the scope of services and the compensation and expense price structure, including the "2005 Standard Billing Rates" and "Special Charges and Adders," all of which is attached hereto as Exhibit "A' and which is incorporated herewith by reference. OWNER and CONSULTANT agree that CONSULTANT may adjust its fee for professional services performed in accordance with its standard published rates, no sooner than January 1, Page 3 of 12 2006, and annually thereafter. OWNER shall pay to CONSULTANT for its professional services performed, and for its out-of pocket expenses incurred in the Project, a total amount not to exceed an additional $350,000. 2. Partial payments to the CONSULTANT will be made monthly based on the percent of actual completion of the Basic Services, rendered to and approved by the OWNER through its Director of Electric Utilities or her designee. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold the final ten (10%) percent of the above not-to-exceed amount until satisfactory completion of the Project by CONSULTANT. 3. Nothing contained in this Article shall require the OWNER to pay for any work that is not submitted in compliance with the terms of this Agreement. OWNER shall not be required to make any payments to CONSULTANT at any time when CONSULTANT is in - default under this Agreement~ 4. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense or reimbursement above the not-to-exceed amount as stated hereinabove, without first having obtained the prior written authorization from the OWNER. CONSULTANT shall not proceed to perform any services to be later provided for under Article 1II. "Additional Services" without first obtaining prior written authorization from the OWNER. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article 11I. hereinabove, CONSULTANT shall be paid based on a to-be-agreed-upon Schedule of Charges. Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with Article VoB. hereinabove. Statements for Basic Services and any Additional Services shall be submitted to OWNER no more frequently than once monthly. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within forty (40) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rote of one' percent (1%) per month firom and after the said fortieth (40th) day, and in addition, thereafter, the CONSULTANT may, atler giving ten (10) days written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full for all amounts then due and owing, and not disputed by OWNER, for services, expenses and charges. Provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) per month as set forth here/n, if the OWNER reasonably detenrfines that the CONSULTANT's work is not submitted in accordance with the terms of this Agreement, in accordance with Article V. B. of this Agreement, and OWNER has notified CONSULTANT of that 'fact in writing. Page 4 of 12 ARTICLE VI OBSERVATION AND REVIEW OF THE woRK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of CONSULTANT. ARTICLE VII OWNERSHIP OF DOCUME~S All original documents prepared or furnished by the CONSULTANT pursuant to this Agreement are insmaments of service and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such docments. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this project and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses this Agreement in another project or for other purposes than specified herein any of the information or materials developed pursuant to this agreement, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officials, officers, agents, attorneys and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including without limitation damages for bodily and personal injury, death, or property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, attorneys and employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. Page 5 of 12 ARTICLE X INSURANCE During the performance of the Services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Board or any successor agency, that has a rating with A. M. Best Rate Carriers of at least an "A-" or above: Ao Comprehensive General Liability Instwance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident and with property damage limits for not less than $100,000 for each accident. Worker's Compensation Insurance in accordance with statutory requirements, and Employer's Liability Insurance with limits of not less than $ 100,000 for each accident. Professional Liability Insurance and/or Errors & Omissions Insurance with limits of not less than $1,000,000 annual aggregate. Eo CONSULTANT shall fumish insurance certificates or insurance policies at the OWNER's request to evidence such coverage prior to the effective date of this Agreement. The insurance policies shall name the OWNER as an additional insured on all such policies to the extent that is legally possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation of coverage, deliver copies of any such substitute policies, furnishing at least the same policy limits and coverage, to OWNER. ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE TERMINA~ON OF AG1LEEMENrr Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by providing thirty (30) days advance written notice to the other party. Page 6 of 12 This Agreement may alternatively be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given (1) written notice (delivered by certified mail, remm receipt requested) of intent to terminate and setting forth the reasons specififing the nonperformance or other reason(s), and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. If this Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services upon receipt of the written notice of termination from OWNER, and shall render a final bill for services to the OWNER within twenty (20) days after the date of tem~ation. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed, and for reimbursable bxpenses prior to notice of termination being receivext by CONSULTANT, in accordance with Article V. of this Agreement. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information to the OWNER and to the new consultant. If applicable, OWNER shall allow CONSULTANT a reasonable time to transition and to mm over the Project to a new consultant. CONSULTANT shall turn over all documents prepared or famished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its files. ARTICLE Xlll RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval of the work by the OWNER shall not constitute nor be deemed a release of the responsibility and liability of the CONSULTANT, its officers, employees, or agents, for the accuracy and competency of their work performed pursuant to this Agreement; nor shall such approval by the OWNER be deemed as an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its principals, officers, employees, and agents. ARTICLE XIV NOTICES All notices required or permitted under this Agreement shall be personally delivered to; or telecopied to; Or mailed to the respective parties by depositing same in the United States mail at the addresses shown below, postage prepaid, certified mail, remm receipt requested, unless otherwise specified herein. Page 7 of 12 To CONSULTANT: To OWNER: SGS Witter, Inc. Steve Owens, P.E., Vice-President P.O. Box 53969 Lubbock, Texas 79453 Fax: (806) 795-7526 City of Denton, Texas City Manager 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8596 and Chuck Sears Engineering Administrator Denton Municipal Electric 901-A Texas Street Denton, Texas 76209 All notices provided under this Agreement shall be effective upon their actual receipt by the party to whom such notice is given, or three (3) days after mailing of the notice, whichever event shall first occur. ARTICLE XV ENTIRE AGREEMENT This Agreement consisting of twelve (12) pages and one (1) Exhibit constitutes the complete and final expression of this Agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XVi SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement, and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement, to the extent reasonably possible, to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the original intentions of the parties respecting any such stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS CONSULTANT shall comply with all federal, state, local laws, rules, regulations, and ordinances applicable to the work performed by CONSULTANT hereunder, as they may now read or as they may hereafter be amended. Page 8 of 12 ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL CONSULTANT represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall immediately inform the OWNER in writing of any conflict of interest or potential conflict of interest that CONSULTANT may discover, or which may arise during the term of this Agreement. Bo OWNER requires that CONSULTANT carefully safeguard ali documents, data, and information provided by OWNER to CONSULTANT incident to this engagement. CONSULTANT recognizes that such documents; data; and information; involve sensitive, competitive issues; in some cases, confidential information; and in some cases proprietary information; and the disclosure of such information by CONSULTANT to any third party, without the express written consent of OWNER, is expressly prohibited by OWNER, and would likely cause economic loss and detriment to OWNER. Any such unauthorized disclosure of information by CONSULTANT shall constitute an act of default respecting this Agreement. CONSULTANT represents to OWNER that it will safeguard OWNER's information and will, upon OWNER'S reasonable request, provide OWNER with CONSULTANT'S policies regarding its procedures for identifying conflicts of interest, and its procedures and safeguards which are in place which would apply to CONSULTANT'S treatment and handling of OWNER'S documents, data, and information during this engagement. Co All services required hereunder will be performed by CONSULTANT or under its direct supervision. All personnel engaged in performing the work provided for in this Agreement, shall be qualified, and shall be authorized and permitted under applicable state and local laws to perform such services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the OWNER. CONSULTANT shall promptly notify OWNER of any change of its name as well as of any material change in its corporate structure, its location, and/or in its operations. Page 9 of 12 ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed. The parties further agree that the provisions of this Article will not be waived unless as herein set forth. ARTICLE XXII MISCELLANEOUS CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment made by OWNER under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct examinations or audits in compliance with this Article. OWNER shall give CONSULTANT reasonable advance notice of all intended examinations or audits. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be govemed by and construed in accordance with the laws of the State of Texas. For purposes of this Agreement, the parties agree that Steve Owens, P.E., Vice President of CONSULTANT, and Senior Electrical Engineer of the Lubbock, Texas office of CONSULTANT ("Owens") shall serve as the Project Manager of CONSULTANT respecting this engagement, shall develop the scope of services with OWNER'S designated employees, and shall oversee all engineering activities on the Project. This Agreement has been entered into with the understanding that Owens shall serve as the CONSULTANT's Project Manager and will be a key person serving the OWNER on this Project. Any proposed changes requested by CONSULTANT, respecting Owens serving as the Project Manager on the Project, shall be subject to the approval of the OWNER, which approval the OWNER shall not unreasonably withhold. Nothing herein shall limit CONSULTANT fi:om using other qualified and competent members of its filth to perform the other services required herein, under its supervision or control. For purposes of this Agreement, the parties agree that Chuck Administrator, DME, shall serve as Project Coordinator of OWNER. correspondence, drawings, billings, and other documents shall be CONSULTANT to the Project Coordinator. Sears, Engineering All project-related transmitted by the D. CONSULTANT shall commence, carry on, and complete its work on the Project with ail Page 10 of 12 applicable dispatch, and in a sound, economical, efficient manner, and in accordance with the provisions hereof. In accomplishing the Project, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carded on by the OWNER. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project and arranging for the access to, and make all provisions for the CONSULTANT to enter in or upon, public and private property as required for the CONSULTANT to perform professional services under this Agreement. OWNER and CONSULTANT agree that CONSULTANT is entitled to rely upon information furnished to it by OWNER without the need for further inquiry or investigation into such information. Fo The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has executed this Agreement in four (4) original counterparts, by and through its duly authorized City Manager; and CONSULTANT has executed this Agreement by and through its duly authorized undersigned officer, on this the ~ day of ,2005. CITY OF DENTON, TEXAS A Texas Municipal Corporation By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: Page 11 of 12 "CONSULTANT" SGS WlTrER, INC. A Corporation ATTEST: Secretary S:~3ur Documents\ContmetsX05kgGS Witter-Engr Svcs-PSA-Third Amendment-DME.doe Page 12 of 12 February 16, 2005 Re'. Denton Municipal Electric Proposal Mr. Chuck Sears Denton Municipal Electric 901-A Texas Street Denton, Texas 76201 Dear Chock: SGS Witter would like to propose that Denton Municipal Electric consider increasing the monetary limit on the Professional Services Agreement now in place by $350,000. We are approaching the $350,000 limit as previously established, and there are a number of projects at various stages in the design process which we wi,Il not be able to complete with~ that amount. The trig/nat estimae of $350,000 was not based on what we have been assigned. The projects that were expected to be the major design emphasis when the contract was originally established were modification of the Hickory Substation and the.Denton West Interchange, Construction ti'the iron Horse Interchange and Substation, construction of approximately 6.5 'miles o~'new transmission line interconnecting these stations, and design of the Teasley Substation. Right-of-way issues have held the Iron Horse station and ;ransmission line projects up partially or completely for more than four years. With the $350,000 contract mount, SGS Witter has completed the desiD,-s for four new stations, addition of a distribution substation to Denton North, and for the reconstruction ofuhe transmission line around the Spencer site. At the present time, several projects are in various stages of completion for the structural designs. Since iueept~.on of the contract, the Hickory and Denm~ West addition projects are the only projects that have had scope changes. In both of these cases, the changes were for additional work ·that ~l!y utilized the design that was done for the original plan, The following is a list of the projects curreatly being designed and their status: Denton West Substation Addition: Hickory Substation Addition: 90% Denton North Tie to Brazos Line & Re-feed the 60MVA Transformer: 5% Bonnie Brae Crossing (part of Hickory to Locust Transmission Line) 60% Iron Horse to Hickory Transmission Line: 20% . 2. .. Denton West to' irori Horse Transmission Line: 35%- - U.S. 380 Crossing (part of Hickory to North La]res Transmissi0'n Line) 65% EXHIBIT" !' SGS Witter, lac. ' P.O. Box 53969, Lubbock, TX 79453 · Office: (806) 795-6827 · Fax: 795,752t; 2005 STANDARD BILLING RATES '~LECT~, I C. DENTON MUNICIPAL CO~OI".ATiON Billing Classification Billing Rates 1-I-05 thru 12-31-05 Principal Principal Principal Principal Principal $123 $115 $107 $99 $91 Senior Professional Engineer 5 Senior Professional Engineer 4 Senior Professional Engineer 3 Senior Professional Engineer 2 Senior Professional Engineer 1 $123 $115 $107 $99 $91 Professional Engineer 5 Professional Engineer 4 Professional Engineer 3 Professional Engineer 2 Professional Engineer 1 $t07 $100 $93 $86 $79 Graduate Engineer 5 Graduate Engineer 4 Graduate Engineer 3 Graduate Engineer 2 Graduate Engineer 1 $91 $85 $79 $73 $67 Registered Land Surveyor 5 Registered Land Surveyor 4 Registered Land Surveyor 3 Registered Land Surveyor 2 Registered Land Surveyor 1 $I01 $91 $84 $79 $73 Senior Staff 5 Senior Staff 4 Senior Staff 3 Senior Staff 2 Senior Staff 1 $102 $95 $88 $81 $74 Steve, Mike Gene Dormy, Travis Lonnie Kyle, Marty Charley 2005 STANDARD BILLING RATES Page 2 Billing Classification Chief Technician 5 Chief Technician 4 Chief Technician 3 Chief Technician 2 Chief Technician 1 Survey Party Chief 5 Survey Party Chief 4 Survey Party Chief 3 Survey Party Chief 2 Survey Party Chief 1 Senior Technician 5 Senior Technician 4 Senior Technician 3 Senior Technician 2 Senior Technician 1 Technician 5 Technician 4 Technician 3 Technician 2 Technician 1 Associate Technician 5 Associate Technician 4 Associate Technician 3 Associate Technician 2 Associate Technician I Office Manager Office Staff 5 Office Staff 4 Office Staff 3 Office Staff 2 Office Staff 1 Billing Rates 1-1-05 thru 12-31-05 $85 Galen $80 Gale $75 $70 $65 $75 Pete G. $70 $65 $60 $55 $75 Randy, Luis $70 $65 $60 $55 $64 Jose, Sally $60 $56 Heath $52 $48 Cody $56 $52 $48 $44 $40 $60 $57 $54 $51 Judy, Addle $48 $45 SPECIAL CHARGES AND ADDERS (1-1-05 through 12-31-05) Page 3 Overtime: Per Diem: CADD Adder: Expenses: Mileage ATV Usage: GPS System (3 meter accuracy): GPS System (survey accuracy): Forensic Services: Standard rate times 1.3 multiplier Per Diem rates will be established for each project as Either "Low Cost" or "High Cost" areas as set by Federal tax code $4.50 per hour Actual Out-of-Pocket + 10% 2WD: IRS allowable* + 10% 4WD: $0.45/mile $50/day $50/day $250/day As negotiated with client 2005 IRS Allowable Rate is $0.405/mile 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 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES February 28, 2005 DRAFT After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, February 28, 2005, at 9:03 a.m. in the Service Cemer Training Room, City of DeNon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Phil Gallivan, George Hopkins, Charldean Newell, Dick Smith EXCUSED: Bob Bland Bill Cheek EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities CONSENT AGENDA: 1) Consider approval of a further amendmem to the Professional Services Agreement for professional engineering services and other related services pertaining to the support of design for approved electrical power system construction capital improvement program projects, by and between the City and SGS Witter, Inc. of Lubbock, Texas in the additional not-to-exceed amoum of $350,000. 2) Consider approval of a first amendment to the Professional Services Agreement - Task Order 05-A by and between the City and R.J. Covington Consulting, LLC in the additional not-to- exceed amoum of $23,100, for the provision of testimony and support during a formal Public Utility Commission of Texas (PUCT) hearing regarding the DeNon Municipal Electric (DME) Transmission Cost of Service (TCOS) filing. 3) Consider approval of the proposal from Denton Municipal Electric for replacement of an electric switchgear and attendant cable replacement and termination work at the Pecan Creek Water Reclamation Plant for a cost not to exceed $41,297. Board Member George Hopkins requested that Consent Agenda Item #1 be pulled for discussion due to the significant amount of money associated with the amendment to the Professional Services Agreement (PSA). Board Member Dick Smith moved to approve Consent Agenda Items #2 and #3, with a second from Board Member John Baines. The motion was approved by a vote of 5-0. Page 1 of 2 EXHIBIT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ITEMS FOR INDIVIDUAL CONSIDERATION: 1) Consider approval of a further amendment to the Professional Services Agreement (PSA) for professional engineering services and other related services pertaining to the support of design for approved electrical power system construction capital improvement program projects, by and between the City and SGS Witter, Inc. of Lubbock, Texas in the additional not-to-exceed amount of $350,000. Chuck Sears, Engineering Administrator, presented this item. A professional services agreement has been in place with SGS Witter since November of 2000. SGS Witter specializes in providing engineering and other professional services to electric utilities. The existing agreement, while it facilitates a range of engineering services, was established primarily for development of substation, transmission line, and relay protection designs on a non-exclusive, as needed basis. Hopkins asked what portion of the total project cost is associated with engineering fees. Sears informed him that engineering fees are running between 3% and 7% of the total project cost. Sears also informed the Board that substation structures are more extensive than steel pole design, such as the most recent at the Spencer Plant, which amounted to approximately 4% of the total project cost. Hopkins moved to approve the amendment to the PSA between the City and SGS Witter, Inc., with a second from Board Member Phil Gallivan. The motion was approved by a vote of 5-0. Page 2 of 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Utilities/Customer Service Howard Martin, Utilities 349-8232 SUBJECT Consider approval of an ordinance of the City of DeNon, Texas amending the provisions of Section 26-128 of the City of DeNon Code of Ordinances; providing for a repealer; providing for a severability clause; and providing for an effective date. BACKGROUND Periodically, the Customer Service Department receives requests from its customers, specifically for water leak adjustmems for toilet leaks. The number of requests for a billing adjustmem is growing. Although the great majority of these customer requests are denied without any adjustmem to the bill being made, customers are more frequemly challenging the city's ordinance. They question its clarity and applicability as the ordinance relates to hidden water leaks and toilet leaks. OPTIONS 1. Recommend amending the existing §26-128 to resolve any uncertainty in its application. RECOMMENDATION Staff recommends that the City Council amend the provisions of §26-128, as it pertains to losses resulting from hidden water leaks, as comained in the attached draft ordinance [Exhibit 1 ]. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 11, 2004 the Public Utilities Board considered amending §26-128. No vote was taken on the proposed amendments. However, the Chair polled the PUB, and each Board Members' recommendations are found in the minutes of the October 11, 2004 meeting [Exhibit 2]. On October 19, 2004, at a City Council Work Session, a presemation was made by Staff regarding direction of the proposed amendmem of the ordinance regarding the billing adjustmem for water loss, after taking into account the PUB's recommendations. EXHIBITS 1. Proposed Ordinance 2. PUB Minutes (October 11, 2004) Respectfully submitted: Charles C. Atkinson Customer Service Manager ORDINANCE NO. 2005- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS OF SECTION 26-128 OF THE CITY OF DENTON CODE OF ORDINANCES; PROVIDING FOR CLARIFICATION AND AMENDMENT OF THE PROVISIONS FOR LOSSES RESULTING FROM HIDDEN WATER LEAKS; PROVIDING FOR A REPEALER; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the provisions of §26-128 of the City of Demon Code of Ordinances are hereby amended, and shall replace the existing §26-128, as provided in the attached Exhibit "A." SECTION 2. That all ordinances or parts of ordinances in force when the provisions of this ordinanee become effective which are inconsistent, or in conilict with the terms or provisions contained in this ordinance are hereby repealed to the extent of any such conflict. SECTION 3. That if any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application 'thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of .,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: EXHIBIT I APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: 2 Exhibit "A" BILLING ADJUSTMENT FOR WATER LOSS Sec. 26-128. Adjustments in bills for losses from hidden water leaks (a) Definitions. The following words, terms and phrases, when used in this section, shall h ave t he meanings a scribed t o t hem i n t his subsection, except w here t he context clearly indicates a different meaning. Excess usage means the difference in the greatest normal usage of water at a service location and the actual mount of water metered and billed in the billing month for which the adjustment is requested at the service location. Greatest normal u sage means t hat mount o f water metered at t he customer's service location in the billing month of greatest consumption during the previous twelve (12) consecutive billing months or, if there is less than twelve (12) prior billing months, the greatest consumption during any prior billing month, prorated to the number of days in the billing month for which the adjustment is requested. Hidden water leak means any leak of a water pipe or water hne caused by deterioration, corrosion; natural forces or other similar cause which is not immediately and reasonably detectable from the surface of the ground. The term "hidden water leak" does not include any leak to a customer's fixtures, or appliances, or equipment. Included in the term "fixtures, appliances, or equipment" are leaks related to the following, without limitation: a sprinkler system, or washing machine, or water heater, or lavatory, or toilet. Substantial increase in water usage means an increase in the amount of water metered and billed at the customer's service location for the billing month for which the adjustment is requested which is in excess of fifty (50) percent of the greatest normal usage for that service location. (b) Request for adjustment. Any customer who is billed for a substantial increase in water usage during any one (1) billing month due to a hidden water leak'may. request and receive an adjustment in the amount billed for water and sewer usage for that month in accordance with the provisions of this section. (c) Written request. Any customer requesting an. adjustment pursuant to this section shall make the request in writing to the customer service department on forms provided for that purpose. A request for an adjustment based upon a hidden water leak shall state the location and cause of the leak, the date it was first discovered and the date of, and the person making the repair, with attached copies of itemized, paid repair bills. All requests shall be submitted no later than thirty (30) days of the due date of the monthly bill for which an adjustment is sought. (d) Adjustment allowed. A request for an adjustment in a monthly bill for water and sewer usage shall be granted if it meets all of the following conditions: (1) A request, with all required information, is filed within the required time, and (2) The requested adjustment is for a monthly billing in which there was a substantial increase in water usage resulting from a hidden water leak, and (3) There has not been an adjustment made in the monthly billing for water and sewer usage at the same service location within the prior thirteen (13) months under the provisions of this section; and (4) Previous adjustments were not given at the same service location for leaks of the same nature as leaks which are the subject of a claim under this section. (e) Amount of adjustment. If an adjustment is granted under this section, the. customer's account shall be credited by billing the customer for the excess usage of water and sewer at the service location for the month in which the. adjustment is granted at a reduced rate established by the city council and which rate is on file in the office of the city secretary. 2 CITY OF DENTON PUBLIC UTILITIES BOARD MINUTES October 11, 2004 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, October 11, 2004, at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. PRESENT: John Baines, Bob Bland, Bill Cheek, Dick Smith, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Michael Conduff, City Manager Howard Martin, ACM/Utilities The Public Utilities Board convened its Open Session at 9:00 a.m. The Chair, Charldean Newell, stated to the Board that there were three Closed Meeting agenda items that were set forth in the Closed Meeting agenda and requested a motion to consider all agenda items under §551.086 §551.071 of the Texas Government Code - Deliberations Regarding Certain Public Power Utilities Competitive Matters and §551.071 of the Texas Government Code - Consultation With Attorney. A motion was then made and seconded respecting the consideration of three items by the Board. The Board then voted 6-0 (Baines late) to move into Closed Session to consider both items, and thereafter convened its Closed Session at 9:01 a.m. mo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS ---UNDER TEX. GOV'T. CODE §551.086. 1. Receive information from one of the City's Texas Municipal Power Agency ("TMPA") Board Members and/or from City Staff pertaining to certain competitive electric matters regarding present and future maintenance issues, financial issues, operational issues, reliability issues, possible litigation involving the agency, any pending legal matters, together with any related strategies or issues concerning the City's interest in, and its business relationship with TMPA; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. 2. Receive competitive electric information, including financial information from Staff pertaining to Denton Municipal Electric ("DME") electric service rate issues and strategies, including without limitation, the first quarter Energy Cost Adjustment ("ECA") rate and other related matters; and discuss, deliberate, consider, determine policy, and provide Staff with direction regarding such matters. Bo DELIBERATIONS REGARDING CERTAIN PUBLIC POWER UTILITIES: COMPETITIVE MATTERS --- UNDER TEXAS GOVERNMENT CODE §551.086. CONSULTATION WITH ATTORNEYS --- UNDER TEXAS GOVERNMENT CODE §551.071. Page 1 of 3 EXHIBIT 2 1. Receive competitive public power information and documentation from Staff regarding the Second Supplement to Transition Power Agreement, proposed to be executed by the City of Denton, Texas and the Seller thereof, to reflect certain market changes that have occurred since closing of the Transition Power Agreement; the status of other public power operational matters; and discuss, deliberate, consider, and provide Staff with direction regarding such matters. Further, discuss and consider the legal ramifications and effect regarding execution of the Second Supplement to Transition Power Agreement. Discuss other legal issues concerning and related to this matter with the City's attorneys, where to discuss these matters in public would conflict with the duty of the City's attorneys to the Public Utilities Board under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. The Closed Session was completed at 9:27 a.m. The Public Utilities Board reconvened in Open Session at 9:28 a.m. The meeting was called to order to consider the following business: ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Receive a report, hold a discussion and give staff direction regarding the City's existing ordinance dealing with water and wastewater leak adjustments to customer billing. City Manager, Mike Conduff, arrived during discussion of this item. Susan Croft, Utilities Process/Quality Control Auditor, presented this item. Periodically, the Customer Service Department receives requests from its customers, specifically for water leak adjustments for toilet leaks. The number of requests for a billing adjustment is growing. Although the great majority of these requests are denied without any adjustment to the bill being made, customers are more frequently challenging the city's ordinance. They question its clarity and applicability as the ordinance relates to hidden water leaks and toilet leaks. Howard Martin, ACM of Utilities, informed the Board that the individuals complaining to the City Council are actually expecting more flexibility in the criteria for an adjustment rather than a tightening of the language. The Board was then polled regarding their individual recommendations to the City Council. Bland agreed with the proposed changes to {}26-128 of the Denton Code of Ordinances as presented by staff. Gallivan recommended revising the existing ordinance. Baines explained that he would not be opposed to having an additional administrative step in which a council or committee would review the ordinance. His justified his opinion by explaining that it is difficult to make this type of document understandable to the general population due to individual interpretations. He affirmed his understanding that the City does not want to pay for something that is a customer's responsibility. Baines then informed staff that he did not agree with 50 percent of the normal highest monthly usage. He also explained his lack of enthusiasm for an ordinance so stringent that it would not provide the Page 2 of 3 flexibility to consider an adjustment for less fortunate members of the community, or those who were actually due an adjustment. Cheek recommended repealing §26-128 of the Denton Code of Ordinances. He stated that he would be concerned about certain citizens' desire to work the "system". Repealing the ordinance would force citizens to make their case to the City Council and prevent abuse of said ordinance. Hopkins recommended revising the language in the existing ordinance. He also suggested that the definition of Substantial Increase in Water Usage be defined as an excess of 50 percent of the ~reatest monthly usage for that service location. Smith stated that he agreed with Cheek in theory regarding a repeal of §26-128, but recommended amending the existing ordinance to allow a one-time adjustment. He rationalized his recommendation by referring to the small number of residents challenging the clarity and applicability of the ordinance. He said that the City should not be rewarding people for their negligence. Newell reiterated Baines' statement by advising that the language be very precise to avoid misinterpretation by the public and newspapers. Newell also favored revising the existing ordinance because repealing it could have negative public relations implications. This item required no official vote by the Board. Chairperson Newell polled the Board and received recommendations as stated above. Page 3 of 3 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Parks and Recreation Howard Martin, 8232 SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of a music festival, Fry Street Fair, conducted by Delta Lodge, in the area of Fry Street, behind Lucky Lou's, and the backyard of the Delta Lodge. The event is to be on Saturday, April 23, 2005, from 12:00 p.m. to 10:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival from 70 decibels to 80 decibels. BACKGROUND Mark Teich, treasurer for the Delta Lodge, has submitted a request for an increase in the noise level from 70 to 80 decibels. The event is returning to the Fry Street area after two years absence. The festival will include local bands, retail and food booths. The event will not be promoted in the Dallas/Ft. Worth metroplex and organizers anticipate a smaller crowd - approximately 8,000 participates. The entry fees have been reduced from $20.00 to $10.00. Amplified sound will be used for both music and public announcements. The organization will contact the surrounding neighborhood and businesses encouraging people to contact them if noise level becomes a problem. PRIOR ACTION/REVIEW (Council, Boards or Commissions) None FISCAL INFORMATION None EXHIBITS 1. Request Letter from Delta Lodge, Inc. Prepared By: Janie McLeod, Community Events Coordinator Janet Simpson Director of Parks and Recreation From: Delta Lodge, Inc. 1305 W. Oak St. Denton, TX 76201 To: Janie McLeod Community Events Coordinator City of Denton LETTER OF REQUEST - NOISE ORDINANCE EXCEPTION (ORD 2001-265 SECT 5) This is a request for an exception to the noise ordinance for Fry St. Fair (FSF). FSF will be held on Saturday, ~.~3rd, from Noon until 10 PM in the area of Fry St. and in the backyard of the Delta Lodge. ~- The FSF is traditional musical festival for the student of UNT and TWU. We provide a preview of the major Denton rock musicians for all Denton residents and Alumni of the city's universities and a yearly street-festival day for the college students in Denton. We are returning to the Fry St. Area this year after two years absence. Previously, we had more than 20 FSFs in the Denton area and are seen as a valued tradition for the college students of Denton. We intend to have a street festival with retail and food booths located on Fry St. and musical acts on stage in the backyard of the Delta Lodge as well as in the parking lot located behind Lucky Lou's. We are asking for a permitted Dba count of 80 during the duration of the FSF. Thank You, S. Mark Teich Treasurer, National Organization Delta Lodge, Inc. EXHIBIT 1 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET March 22, 2005 Parks and Recreation Howard Martin, 8232 ~ SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of a music festival, Wake Up 2005 Festival, in the North Texas Fairgrounds. The event is to be held on Saturday, April 2, 2005 from 12 noon to 11:00 p.m. The exception is specifically requested for an increase in the maximum allowable decibels for an outdoor music festival from 70 decibels to 75 decibels. BACKGROUND Brook Ray, coordinator for Wake Up 2005, has submitted a request for an increase in the noise level from 70 to 75 decibels. This will be the second year that the event has been held at the North Texas Fairgrounds. The festival will include local bands, retail and food booths. The organizers anticipate an attendance of 5,000 people. The event will host 70 various entertainment acts on seven stages. The entry fees will be pre-sold at $10.00 and $15.00 at the door. Proceeds from the event will be donated to non-profit organizations. Amplified sound will be used for both music and public announcements. The organization will contact the surrounding neighborhood and businesses encouraging people to contact them if noise level becomes a problem. PRIOR ACTION/REVIEW (Council, Boards or Commissions) None FISCAL INFORMATION None EXHIBITS 1. Request Letter from Wake Up 2005 Festival Prepared By: Janie McLeod, Community Events Coordinator Janet Simpson Director of Parks and Recreation March 17, 2005 Ms. Janie McL~od Parks ~d R .~x~lion Sp~ial Events Ad visor City of l~nton Denton, Texas To: Ms. Jimie McI~xxi City Manag~ of City of l~nton Honorable M~ of ~n Ci~ Co~ ~ W~e Up 05' Event ~11 ~ held for the s~oM ye~ on ~fil 2, 2~5 ~ ~e No~ Tex~ F~ Om~ (12:~ ~nto 11:~ .). ~tioi~ ~~ of5,~ ~& ~m ~ ~d ~ ~ffo~s W ~nefit Suppwt O~ S~ild, Ai~ ~c~ of No~ Text, C~ ofWa~, ~d Ts~i R~licf. [ ~lly ~ue~ ~ ex~o~: cv~t W ~ ex~ to 11 :~ pm ~d ~ ~on m ~ noi~ ordi~ of ~ i~ to 75 d~bl~. l ~ ~q~ng ~ ~ pl~ ~ ~e ~ for ~e Co~cil's Ma~h 22, 2~5 m~ng. I ~o~ ~ &e o~ m~ci~, ~sm, ~ yo~g ~Ne often &~k you for ~ ~n~nu~ s~ ~ ~ in ~. L~king ~d ~ ~dmss~g you in ~ Respecfully yours, Br°°k E. Ray Creatures For Awareness. Inc Executive Producer/Pro-Du~tions 1 ofl 3; 17,/'2005 1:29 PM EXHIBIT 1 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Tax Kathy DuBose SUBJECT Consider approval of a tax refund for the following property tax: Tax Name Reason Year Amount dki ~ Sup~l~ ~an BACKGROUND Chapter 31.11 of the Texas Property Tax Code requires the approval of the governing body of the taxing unit for refunds in excess of $500.00. FISCAL INFORMATION The tax overpayment revenue fund would be reduced by $18,237.91. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 22, 2005 Airport and Transportation Operations Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance approving an assignment of leasehold interest in an airport lease from JVC Real Estate, LLC to Dennis R. and Carla M. Frisbee for property located at 4730 Lockheed Lane at the Denton Municipal Airport; and providing an effective date. Airport Advisory Board recommends approval 6-0. BACKGROUND Dr. John Vann of JVC Real Estate, LLC has requested the City of Denton authorize the assignment of his commercial operator airport lease agreement to Dennis R. Frisbee and Carla M. Frisbee. As a condition to the assignment, Dr. Vann has agreed to repair a pavement joint at the hangar development's access to Lockheed Lane. JVC Real Estate has agreed to complete improvements to the access taxiway as a condition of this assignment. The City Manager will not sign the Assignment until the work has been completed and approved. ESTIMATED SCHEDULE OF PROJECT The lease assignment would become effective March 22, 2005 and continue through the 31 st day of March 2033 (end of current lease). PRIOR ACTION/REVIEW The City Attorney has reviewed the lease assignment and the Airport Advisory Board recommends approval of the assignment. Staff recommends approval of the assignment as submitted. FISCAL INFORMATION There will be no change to the lease rate established in the current version of the lease agreement. EXHIBITS Ordinance Assignment Respectfully submitted: Mark Nelson, Director Airport and Transit Operations S:\Our Documents\Ordinances\059VC Airport Lease Assignment.doc ORDINANCE NO. AN ORDINANCE APPROVING AN ASSIGNMENT OF LEASEHOLD INTEREST IN AN AIRPORT LEASE FROM JVC REAL ESTATE, LLC TO DENNIS R. AND CARLA M. FRISBEE FOR PROPERTY LOCATED AT 4730 LOCKHEED LANE AT THE DENTON MUNICIPAL AIRPORT; AND PROVDING 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 Assignment of Leasehold Interest in Airport Lease from JVC Real Estate, LLC to Dennis R. and Carla M. Frisbee, in substantially the form of the Assignment attached to and made a part of this ordinance for all purposes, to evidence the CitY's consent to the Assignment. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: LEASE ASSIGNMENT OF PAD SITE AT DENTON MUNICIPAL AIRPORT DATE: March 22, 2005 ASSIGNOR: JVC Real Estate LLC ASSIGNEE: Dennis R. Ffisbee and Carla M. Ffisbee LEASE: Date: March 25, 2003, including Amendment dated June 30, 2003 Landlord: City of Denton Tenant: JVC Real Estate LLC Address: 4730 Lockheed Lane, Denton, Texas 76207 Assignor assigns to Assignee Tenant's interest in the lease. Assignee Agrees To: 1. Assume Tenant's Obligations under the Lease. 2. Accept the premises in their present "as is" condition. 3. Complete all obligations of purchase from Assignor prior to this Assignment becoming effective. Landlord consents to this assignment. Landlord agrees to notify Assignor within 30 days of any Assignee default. B. Assignor agrees that: 1. Assignor will remain liable on the Lease should Assignee default on the Lease. 2. Assignor will complete access taxiway curb cut and installation of concrete prior to this Assignment taking effect. P~OUS ASS!GNMENTS: None For~.~~I p~.~...__~l eal Es te LLC, John A. Vann, Manager, Assignor Dennis~}~. Frisbee, Assignee .Carla M. Frisbee, Assignee Attest: Jennifer Walters, City Secretary Michael A. Conduff, City Manager By: Approved as to Legal Form: Herbert ~omey By: STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the / 2005, by John a. Vann, President of JVC Real Estate, LLC, Company. My Comn'iia~lion Expires [~ STATE OF TEXAS couszv _ day of ~I4~t~-,:Z, , a Texas Limited Liability 6 taryavft;li-c, state 6 fTe£as 2005, by Dennis R. Frisbee, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes Ii t~,z A '~.~ el J, BELUE [SEAL] mary Public, Stat,_~ of Texas STATE OF TEXAS cou r This instmment was acknowledged before me on the I~'day of ~/~O3--c~ , 2005, by Carla M. Frisbee, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed ~,~. ~¥,, My Comrnlealon Exp[rae STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the ~ day of , 2005, by Michael A. ConduiT, City Manager on behalf the City of Denton, Texas, a municipal corporation. [SEAL] Notary Public, State of Texas S:\Our Documents~FORMS~Budget Amendment AIS.doc AGENDA INFORMATION SHEET AGENDA DATE: March 22, 2005 DEPARTMENT: Legal CM/DCM/ACM: Ed Snyder, Deputy City Attorney SUBJECT: Consider approval of an ordinance of the City of Denton, Texas amending the Fiscal Year 2004-2005 Budget and Annual Program of Services of the City of Denton to allow for an adjustment of six thousand five hundred dollars ($6,500) to provide for the payment of expenses incurred for the review of a Cable Television Franchise Application by University of North Texas; declaring an emergency; providing for publication of the ordinance; and providing an effective date. BACKGROUND: Pursuant to Section 8-31 of the Code of Ordinances of the City of Denton and Ordinance 'No. 2000-204 the University of North Texas ("U'NT") paid to the City a $5,000.00 nonrefundable application fee to cover costs of review, issuance and enforcement of a proposed cable television franchise. In addition pursuant to an agreement between the City and UNT, UNT has agreed to pay an additional sum of $1,500.00 to cover the costs of review of the franchise application which increased the total sum to $6,500.00. However,' the 2004-2005 budget did not provide for the expenditure of. the $6,500.00 to cover the costs of review of the Application because it was unforeseeable. The funds will be used to pay for consultant services provided by attorneys Clarence West and John Pestle. It is an emergency and a matter of grave public necessity that the budget be amended to allow the City to expend the $6,500.00 received from UNT to cover the franchise application review expenses. Failure to amend the budget to provide for this expenditure could result in substantial liability to the City. OPTIONS 1. The City Council may adopt the ordinance; or 2. The City Council may decline to adopt the ordinance FISCAL IMPACT There is no fiscal impact as the $6,500.00 expenditure is off-set by the $6,500.00 fees collected from UNT. Res~pec~ubn~d: Ed S~ Deputy ~t;//A~omey ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE FISCAL YEAR 2004-2005 BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE CITY OF DENTON TO ALLOW FOR AN ADJUSTMENT OF SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500) TO PROVIDE FOR THE PAYMENT OF EXPENSES INCURRED FOR THE REVIEW OF A CABLE TELEVISION FRANCHISE APPLICATION BY UNIVERSITY OF NORTH TEXAS; DECLARING AN EMERGENCY; PROVIDING FOR PUBLICATION OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2004-274, the City Council of the City of Denton, Texas approved the Fiscal Year 2005-2006 Budget and Annual Program for Services (the "Budget"); and WHEREAS, pursuant to Section 8-31 of the Code of Ordinances of the City of Denton and Ordinance No.2000-204 the University of.North Texas ("UNT") paid to the City a $5,000.00 nonrefundable application fee to cover costs of review, issuance and enforcement of a proposed cable television franchise which is being applied for by LINT (the "UNT Application"); and WHEREAS, in addition, pursuant to an agreement between the City and UNT, UNT has agreed to pay an additional sum of $1,500.00 to cover the costs of review of the franchise application, thereby increasing the total sum to $6,500.00; and WHEREAS, it has been many years since the City has received a cable television franchise application and therefore this expenditure was unforeseeable and could not by diligent thought and attention have been included when the Budget was adopted; and WHEREAS, the Budget did not provide for the expenditure of the $6,500.00 to cover the costs of review of the UNT Application because it was unforeseeable; and WHEREAS, it is an emergency and a matter of grave public necessity that the Budget be amended to allow the City to expend the $6,500.00 received from UNT to cover the franchise application review expenses; and WHEREAS, the City may expose itself to liability if expenditures are not authorized to professional consultants to assist the City in the franchise application review process, especially in light of the fact that and incumbent franchised cable television company has threatened litigation if the LINT franchise is granted; and WHEREAS, as required by Section 8.08 of the Denton City Charter, the City Council finds that a failure to make this expenditure creates a grave public necessity, requiring emergency expenditures to meet unusual and unforeseen conditions associated with the need to review the UNT Application; NOW, THEREFORE, THE coUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the above preamble to this ordinance are tree and correct, and are hereby adopted. SECTION 2. The Budget is hereby amended by the City Council to allow six thousand five hundred dollars ($6,500.00) in franchise application funds received from LINT to be allocated to the Legal Department's budget for consultant fee expenditures for the purpose of paying for professional consultant fees for the review of the UNT Application. SECTION 3. This ordinance shall be flied with the City Secretary, who is directed to attach a copy of this ordinance to the Budget and cause this amendment to be published once in the Denton Record-Chronicle. SECTION 4. This ordinance was approved by at least five members of the City Council, as required by Section 8.08 of the City Charter. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2005. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY P3q'TORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Tax Kathy DuBose SUBJECT Consider adoption of an ordinance of the City of Denton, Texas amending the fiscal year 2004- 2005 Budget and Annual Program of Services of the City of DeNon to allow for an adjustmeN of six thousand dollars ($6,000); declaring an emergency; approving the amendmeN of the CY 2005 Hotel Tax funding agreement with the Denton Chamber of Commerce; providing for publication of this ordinance; and providing an effective date. (The HOT Committee approved this item by a vote of 3-0). BACKGROUND Funding for the ConveNion and Visitor Bureau (CVB) of the DeNon Chamber of Commerce was originally funded for $410,283 during the City's annual budget process. The Chamber coordinated and developed a new promotional tool for the City's various evens. This new tool, Denton Live magazine, provides a comprehensive and professional overview of the evens Denton provides throughout the year. This is the initial year for this type of promotion for the benefit of Denton's events, which help support the local economy. Therefore, production, publication, and distribution costs for Denton Live were conservatively estimated at $80,000. The successful distribution of Denton Live is vital to the success of promoting the various events in Denton. To complete the successful distribution of this magazine, the CVB has requested an additional $6,000. PRIOR REVIEW The Hotel Occupancy Tax (HOT) Committee met on Tuesday, March 8, 2005, to review the request. They unanimously approved a recommendation to forward the item to City Council for approval. FISCAL INFORMATION The City's Annual Program of Services 2004-2005 includes a projected fund balance in the Tourist and ConveNion Fund of $119,610. This source provides funding for the $6,000 increase for the Convention and Visitor Bureau of the Denton Chamber of Commerce for distribution of the Denton Live publication. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE FISCAL YEAR 2004-2005 BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE CITY OF DENTON TO ALLOW FOR AN ADJUSTMENT OF SIX THOUSAND DOLLARS ($6,000); DECLARING AN EMERGENCY; APPROVING THE AMENDMENT OF THE CY 2005 HOTEL TAX FUNDING AGREEMENT WITH THE DENTON CHAMBER OF COMMERCE; PROVIDING FOR PUBLICATION OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance'No. 2004-274, the City Council of the City of Denton, Texas approved the Fiscal Year 2005-2006 Budget and Annual Program for Services (the "Budget"); and WHEREAS, for the first time ever, the City Council elected to allocate the majority of Hotel Tax revenues to the Denton Chamber of Commerce, Convention and Visitor Bureau, to be used for the production, publication, and distribution of the Denton Live magazine to promote tourism for a number of local events; and WHEREAS, in taking this unprecedented step, the Council diverted advertising funds which had previously been allocated directly to the individual organizations sponsoring their respective events, such that the success or failure of each of these events depends directly upon the success of the Denton Live publication, with no altemative source of funding for advertising to draw tourism; and WHEREAS, much of the local economy, particularly in travel industries, such as restaurants and lodging, but also in other non-travel businesses which benefit indirectly from tourism, depends directly upon the success of each of these events, and their ability to draw tourists into the community year after year; and WHEREAS, the impact upon the local economy if these tourism-focused events were to fail this year, or even cease to exist, as a consequence of inadequate advertising, could be devastating, causing losses of revenue in the private sector and the public sector as well, such that hotel occupancy and sales tax receipts could plummet, and revenues from ad valorem taxes might begin to reflect the reduced property value of a community recently deprived of local artistic and cultural events; and ~ WHEREAS, since the Budget was adopted, the Convention and Visitor Bureau of the Denton Chamber of Commerce reports that it needs an additional six thousand dollars ($6,000) for distribution of the Denton Live publication; and WHEREAS, surplus receipts to date from hotel occupancy taxes alone could satisfy this need ten times over, thereby avoiding the risk of economic calamity; and WHEREAS, as required by Section 8.08 of the Denton City Charter, the City Council finds that the potential and irreversible consequences of this funding shortfall for the distribution of this publication creates a grave public necessity, requiring emergency expenditures to meet unusual and unforeseen conditions associated with this previously untried form of advertising, which could not by diligent thought and attention be included in the Budget, such that a budget amendment is both necessary and appropriate; and WHEREAS, the Council finds that this budget anaendment also serves an important municipal purpose already contemplated as an eligible item for expenditure in the current Budget, consistent with §102.010 of the Texas Local Government Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the fmdings set forth in the above preamble to this ordinance are tree. and correct, and are hereby adopted. SECTION 2. That the Budget is hereby amended by the City Council to allow six thousand dollars ($6,000) in previously unallocated surplus hotel occupancy tax receipts for fiscal year 2004-05 to be reallocated to the Denton Chamber of Commerce Convention and Visitor Bureau, for the purpose of supplementing the distribution of the Denton Live magazine, to advertise local artistic and cultural events for the purpose of promoting tourism. SECTION 3. That this ordinance shall be flied with the City Secretary, who is directed to attach a copy of this ordinance to the Budget and cause this amendment to be published once in the Denton Record-Chronicle. SECTION 4. That this ordinance was approved by at least five members of the City Council, as required by Section 8.08 of the City Charter, SECTION 5. That the revised CY2005 hotel tax funding agreement with the Denton Chamber of Commerce is hereby approved, and the Mayor or City Manager are hereby authorized to execute this revised agreement, or such other instruments as may be approved by the City Attorney, to effect the purposes of this ordinance. SECTION 6 That this ordinance shall become effective immediately upon its passage and approval. : PASSED AND APPROVED this the day of ,2005. EULINEBROCK, MAYOR P~e2 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 3 REV ISEI) ~:5,(.,REE~ 1EN l BETWEEN T[I E CtT¥ 017 DENTON AND THE DENTON C~l ANI I~!:;R OF COSI~SIERCt~: (CO~N'VENTiON & VISITOR ~ R,EAU) ((Y-2005) PROVIDING FOR 3:1ii~]; PA¥5IENT :XND USE OF ItOT~:L T:~X RE¥"ENUE WHERE,AS, TN×:, TA× CoD~ ~351.101(a} a,;~i;holSzcs (21T¥ to t~se 'rexem:~e fl-on~ its m~ni. cipaI hotel occupancy tax l:o promote lot~rlS!q3 ;,!!Id the convc~q:lion :u~d ho, tel [~dt~stry by advertising ai:td coz'ld[lc!i~]~:., sot:ici m~.io~'~s a.~d p~o~ noiiorml [~ro.,=,O'l'81'tlS [0 attract !ca:fists and c<mvenlion de[egaies or 'regis:0'ants io tho munic;il~.alit> or ils v~ci:ruity'; umd Conven/iols a.t~d Visitor's Btir'ca.~;t: a.~d ¥2005: agreem¢i:~t, tbr ti'lo p'u. rposc o f' providi~g ~tddit:ional l."tttid h~g ;o a~ !.vel:~i se ¢'[igibte eventsi NOW, 7'~' .. " . ~ HEREFO'R.~,, i~] consid;orat:iori eli' thc pcrl'bm~iu:~ce of ~:he: mL:ltual coven:anis and i, ~.]OTEL TAX .... ':'N' { 1.1 Co:l:~.sideralion. For and i!~ co~si~:teratior~ of 0'~e activities 'to be perf~ormcd by BtJREAt.J t~r~der this A.green"~enK CITF¥ agrees t:a pz~y to Bt.. REALf a portion of the hor. e~ tax reveruue, collected i. Z A mount of l?aymea ts,. n:'~ear~i n gs: As tfsed in this ~&grcer~!e!!t, t:l~e iL=~l~:~xvi~xg t.c:rms sh~t?l have !he 6oilowing spoci:iic the p~ice paid fo~ a room in a hotel~ pursuam ilo Texas lax Code 635l~002 and City (]ii) The Lerm "~Cotlecti©n !sc~ic-,d" ~:ill mean the co!icci:ion period fi)r CIYY's :fiscal year. h w~]! include hotel ~ax rc~em.~e d~io ~o (]IT¥' Ii~r' die r,ei6vam lisca! year and ([ii) Thc term ~q)ase paymen[ amom-ml'~ shall mcan a net a'mom~l of money equal ~o d:te total hotel t:ax rc-cem~e cc, llccicd hy C]]'Y du:rfng a.n} relevant pod. od of ti'me (f,C;,, fiscal year or fiscal qt. taneS, k:ss (I) attorney and arrdifing cos!s inctu'ved durir~g such relevm~t period of hose Ibr costs of collection or a:udifim:~g of helot mxpa?'ers. Ai[omcy mx! auditing costs ~nclude fats paid to attorneys or agc.m:s not i:a the regt~[ar emp[o5 of CITY li'~r which attorneys or agents eJ].k'el corn:pi lance or collectioa of the hotel tax ~i:o.m taxpayers; a:~d {2} corox costs and o~her expenses immu:rred hs Ih[g:ation against or at~d~t[ng of such mxpayers. (iv) Thc [cnn "co!si/act qm~u~rter" si:tail ret;ar t:o ally quai:tcr of ibc calelxlm:' year Sc:ptembcr 30~r~, ~md Dcccm jet 51: el each cozn;tracl year, (b} In reruns :[br s:ttis~tcioi:? peribrmance of I:hc activi[ics sc[ (brth in this Agreement a~d a.~l a[tachmems hereto, CFI~Y sl.tail pay [o BU~REAU arm amount of money in each contract year equal m the lesser amount of Forty-Five and Sc~cm.y Eight One I~und.redd,~s percent: (45,78%) of the annual base payment amomu o~ thc ~ixcd cont'racl: amou. n~ of-Four ]~[,mdred S~xt:ee~ Thousand Two Hm~dred ami E~ghts.~Thrcc Do!Jars (S,$ld,2S3), Tiffs ammmt w~l be dRqdcd imo qLmr[erly paymel;~is equal to 25% of t:he amm.~d fixed con[tact ar!lot!ilL ~mless CITY can si'mw with rea.sormble c<,rtain~.y Ibm lilac mmual base payment amount will be less than oH;gmally esfimnaed fbr the I]scal year, ]'ho Iq;mr[h quarterly paymem, will represem 25% of the fixed contract ktlllOLt[ll or tile .lllpai¢[ remainder of 45.78% o:1" ~h.c base 'paymen[ amount, whichever is less, Each qu.a'r~.er!} I¢a3me:mu is sub. i,cca kJ m:cc:eipt of' tm'used I"unds t)'om []le pi-or comract period and the receipt of d:~e required quarterly repons. 1.3 Dates o:f Payments. (a) The term ~'qLmrtcrly paymcn~s' shal! mean paymcm.s by CITY to BL.!REAL of those amexm[s specified in Il. ,2, above, :..~s ¢[ete'rmilmd by *he hotel tax revenue co!looted. (b} Each qua.rter]y payment sl}al~ be paid upon receip[ of Il:to required rel)orts and: after thc 25m day ~bllow~ng [he last day of ~:l~e cms~:ract qtm.rtcn if the qua.rter~y financial roper[ is not received ~ ida:in thir[y (30) days of the end of ~l~c applicable comzact qu:me:~; thc rccipicn[ may bc held ~n breach al" m:his Agreement. ('TI'Y may ~,~tl:d.told d:~c ,qL[~rtc:rly payme~'~i{s) m'tt:i~ the appropria:tc rcpm~s arc rccciv,cd and approved, wlaich approval shalt m:m[ Lmrcasrmal~]y be widtheld, evb cY2©05 TiC)!' !:;"nad Contract {Revised) Page beyo:nd the c'!.~rrem co!1tracl period, .~a:~y l!L~t~re ~iH~¢}ip[.s is soiely al:~ !-espo~sib[]ity of [}Li. REALi. (b} ~t is expressly unde:rs{c.,od Ihaf: this corm:act i:n m'> ',say obligatcs dq,e CJenerai FLmd or any oi.l'~er mc, n:ies or credits of CITY'. expe ':xfi~:L~res deviate materiali> iTrom their 'approYed bud?. 11. L S E OF .[ !£ T LL TAX R EVE N U E 2.1 Use of Fumts, For and [[~, cor,.sideradon of the pass¥1cnt by CITY to BLREAU of [l}e ass'ced paymcms of bore] !ax ;fi!l~ds specified abme. BUREAU agrees lo use such hotel mx hinds only for adve~ising and cm~ducfing so!icitatioils ~md prmq'xotimla[ prograrr~s t<) attraci ~:eur'Jsts and cm~ven[ion delegates or registrants to the mtmicipali~y or i~s vich~ity as au. Lhori;r'ed by T'EX~ TAx CODE ,~351. ] 01 {a}, Ftmds ri'or arty calendar year which sre un~sed by midnigh~ December 31 oF that yea;r shaI] be reflmded to CWY wiihi~:~ sixty (6f}) days. '~ ~ Administrative Costs. Tl~e h,~ .,~ ',' .... t.c~== Ia,,;: fixfs rc,ccised Jkom Ci,tTY by BLREA[ may oc spezm: lior da?to-day opcra~ions, a,t]Sc:e su:pp}ies, salaries, travd expenses and od::tcr admh~Jsira:~R"c costs ?.~0 [ .10 ! fl),. only [[' thc), are dhrecdv armbutable to work <)n wlfich, promote: tou~sm and the hotel and comen¢ion indust!% and wi:~ich also promote at least one of d~.e six staiutor5 ~¢trq¢oses emm'~eratcd within TEX TAX CoDE ,}351, I. 2.3 Specific Reslriet. ions on Use {~t' I'unds. (a) BLI~AU agrees to denlOnStraae strict: compliance wfll~ the !'ccord keeping and appo~Jionment ]im:i. talions imposed by 'llx. Tax (7o[>F. ~35~.i. 01(B a:n.d ~35[..~08 (c) and (d). BUREAU shatl nm utilize 'l/mi, el :ax fi:rods Ibr any expenditure which has not bccn specifically docume, med [o sadsf? the purposes set fbrth in ~:2.1 and 22 above, (b) Hold tax (bads may not be spem: f?or~ travel tbr a person !o ~ttl:el:~d an event or conduct o,~ ~oca~ :ou~qsm and ac. livity [lie ]pri'maD~ p~l.!l¢ose o ~' x~ hich is dirccd, v relined to the promotion ~`'~" convent:ion :md hotel industry or d~e per'[bnqsmace: of l:he person's job i.n an cflicicm m~d pro~ssionaI mm'mcr: 1~' tIREMFNTS J:ll, R.ECOR[)KEEPiN('7; AND RI;PORTING Q 3.1 B ufiget (a) BUF,~AL sh. alI prepare and sL~bmit to the City Ma)mgm o:f CITY an ammal budget (see Exhibit ".A') as approved by l;l:,~e City Council 'lSw each calendar year. ibr S~lCh operafior~s of BLiREAU in which the hotd tax funds shall be used by BUREAU, This budget shall specifically identi~:fy' proposed expenditures of hotel ~ax :fimds by BiJR.kAU, In other words, CITY should be able to audit specifically where the i)~mds in tl:~e separate account relating to l:mte! tax flmds wSll be expended, Cll'Y shall ~ot pay lo BL.::P~.AU any hotel tax :revenues as sei [brth ir~ Section I of this CvB ( Y2(t(}5 HOT Fmx:! (.om:tact {.i~,e~.isedl Page 3 considered grom'~ds fiw tcrminatk.m of this AgreeI:rmnt as stated 0']'} ktLIREAL acknowledges d]at the approval of s!.]d] 'bud~cl by the Denton CTity apprc, ved by CITY. [,~LREAL~ shatI maim:ain any h:~¢i [ZL:< timds paid. ~:o ~UREAU by 3.2 Separate Accom~ts, ' ' ~ CITY in a separai;e chackin~ aCCOLmt or Wi[h sea~l:egated alnd aCCOi.lnl.:in~,, SL!;CI'i that ail)reasonable psrsoll c;,i~l, review the reveiltte source of anx', =.p'ivcl:l.. cxpenditttre. 3.3 Financial Records. B[TREAU sha!l inainiah~ c:omp!etc and accurate linancial records of each expcnditm:c of t:hc hotel tax Kinds m~xk by B'[?REAiJ. l'hes~ ikmds are required io be c!ass~fied a~ t'cstfictcd t'Ll. ildS ~q:~r audited fina[~c~al purposes, and may no~ be used Ibr con. lracted wr'kten request of the Denton Cily Com'~cil, t]:~c City Manager or designate, m- any other BUREAU shalI mz'/,;.e sucl] fina'ncJa[ 1:2cords ;wai!able i:br inspection ;.md re~'iew by d'te party making the reques!. I'~LIREALJ understands a:~d accepls that ali a~ch :fimmciai records, and any other records re~aeJng to this A.~reemer]t $1:~a]] bc sub. focl to ~]]e Public '[n/:ommtion Ac't, Ti;x, CODE, cb. 552, as hereafter amended, 3.4. Quaner!y Rel]oris, .:\ilar hlitial receipi, oF'ibc hotel tax JiLl:Ids, al!d w'i{]l;[11 i]l~l~:y days after ~he end :o F e cry conm~c[: quaTct', B L..; REAr.? siqa ~ [5im~:J sh ~o CF]W: ([) a c omtJ leted financial rep ort, (2) a list o:(the expen, d:itures made or copies of'lbo invoice or rccdpts wi!h reaa;d to i~otei lax amnds purstmnt to TEX, TAX COgE 6'~fi I.. 101 icl and (3)a cop5' o:lTaH '.tSnanchd records Ce.e, copies of !-toni and back cleared checks or ban!< a:atcmcnts, and other :rele'~:mt doctLW~Cntam:m), BL~REAU shal. l prepare and de:liver al! reporis in a :fbn'r'~ m;td manner approved by ~:]:~c Cily Manager or designate. B'[?RTEAU sba. l] respond promptly to any FOLIL~C:Ei [?O1TI [~2e City Manager ,al'CITY. or desigTm, te, i'br additional in[bm~afion :reh:tt.h~g to the activities per':onT~a:~ under tl:~is ..'~8rccmcnt. Noi:ice ol'Meei:ing~. BLREAL shall aivc the City Manager of CITY reasonable advance v, ri. tten notice of the time and place of ail mcct:ings oF B'(.'SREAU's Board of Di.rcctors~ as well as other meeting of any cm~sfim:uency of BL REAL' aL wi:rich this Agreement or any matter subject ~:his Agreement shah be co~sidcrcd. TERM tND TI~RMINAT1ON 4. i Term, The 'term of this Agreen~en~ shall common.cc on jal,lklLii~' l, 2(](1'5 a}ld t:er'n'dnat:e at midni~t~t., on ,[antLar'~. . 3'~, 2ri06 .... [:towe5 e:r.. the I:)Fogtam period sh:a~l commem:~ce, on .!a;ntm,rv_ 1..?005 and rem]hml:e a~ m~dnight OFm Doc:ember 31.2m)05. Only Lhose expe:nditures at~'th.c~:rized by Cl'mpter 35t of the 'Texas "lTax Code and ii:~e p]:mog, l:[:l.[ll g~idelines, which are aCkl, al ly im:~currcd during progran'~ period, ibr evenls and acti',itks tak:ir~g place wifhin ~he pl'ogrmn period, are e[ig:ib]e :fbr CVB L '~ ~:;(,r, ]'[OT ]:lind Con[r~cl t R.c','is, ed) -- P::~ge 4 flu:Mh~S under Ibis eSrcCl'lmrlt~ and any' inc[isib[c cxp~mdffurcs or unspeni fimds s]m]l be [orf~itcd to C'FFY upon tcmfina:fion o f thu A,gr¢.en~¢nt 4.2 Termination Wiibout Cause. Ca) This Agreement may be tcrminaied by chhc:r party, with or whhouI cause, by giving tl:':,e otlter parr.}., sixty (60) days adwmcc ~,,, ri[ica rmtice, Cb) M Lhc c~ c:nt this contraci is Icmlina~ed by either t.mrW purstmnL tO Sect:ion 4~2{a), CITY agrees to reimburse B[:: 1{15~AU tbr any con[ractua~ oblig:.~:do~s o:l-BI. REAL underu~kcn by dnat were approved by dm Council i:hro~gh thc budgcL as noi;ed ~l~ ~;S,I. Z]l~$ rehnburscmem is co'rMition,cd upon sucin con'[fac[ual ob~Jga:tkms imving 'been ~nct, rrcd arid entered into h:~ tlm good Gi~'l;h perfbmmncc cfi:hose set'does contemplated in ~'2. [ .and 2,2 above, and fi~rd~er condk[oncd upon sucB contn~ciua~ obligaions havh~g a tcrn'~ no~ ex:cecding thc .fitI1 lcrm cfi' rh:is Ag'teem. tnt. Nolwhhstand~ng any provision hereof to. thc con[rs.fy, [he obl~gafio:n of CITY ~o reimburse ;BUREAU or to assume the pe:rfbrmancc of' ally con~:ractua~ obligations o,f BUR.hAU fbr or under curt-cra qu.~rl:erly paymenL ~ '~'~) BLR. EAI~7 w~l provide CITY: W i~hi~ [0 bush~c'ss days [?om the I,e]f]l~Batio~l llOl~Ca[iOll, a shori-lt'z-r~l budge~ of probablc expendil;ures for thc remain ng 60 day period bctwcc~ [em~inalion noti~ca[on and contrac[ tcmzi:m~adon, Tiffs budget wi!! be presell(ed to CoL~'lcil ~br approval withi~ [ 0 business day's after receipt by CITY. I[/bnnal approva~ is not given within 10 business days and ihe budget docs [~o~: contah::t any expenditures ~ha~, would be prol'fibi, i. ed hy !he ']'<':x:as Tax Cod. c, and is whhSn; current conm.ic~:ua[ period approved hudgcl; d:,c budget x~iii be considered approvcd; Z} Wifl'fin 30 days., a f}t][ aCCOL~lti:l:tg Of ail exper]dir[trlt"cs r~,:,t prc'~,iou, s]2,, au,Ji~ed by CITY; 3)Wilhin 5 bus[ncss days of a ret[LieS! [rol~] CITY, a listing of expendim::m-es that have, occurred since fl)e :requked reporting period; 4) r[ f~nal accou, nti~g ~:x!'" all expe:ncfitures and tax funds on ~hc day tcrmh:m, don. BUREAU will be obligated to rett~m any il'llused Rinds or f~nds de[ermined to t[scd hr~properly, A:mny use of rcmaLnh]g grads by Bt..JRmIS. AL) after nod:ficadon of ten]:]ina:tk-m is conditioned upo:[] such contractual obligations having been i.m:~currcd and entered i'~to [:mi, !he good fi'li(h perfo.mnnmncc of thc, sc: aery:ices ccmten~p~:]:Jted ill 2, I an;d 2,2 aboxe, and 1ira:her conditioned LtpOll: SUCh con.[rac;tt~ai obligat:ion~ ha'~ lng a ~en!;~ not cxcccdi.ng d'~c full term of ibis Agreement, 4.3 Automatic Termi~mden. '[his Agrccm¢l-tl shall ~mtomaica!ly [em]ina:re OCCt:IITC:lCC of an?' o,[ Ibc £o~Iov,:ir::.¢. eyelets; Thc h:tsoI'~,Clicy oi' B(?REA[.L ihe fili:[~g of a ped't:iou ]:i:~ I~ankruprcy? eilhcr volLmtarJI5 or irrvoi,¥mi;~r:i'~y, or an assignment by Bl.'q:¢,klA L: fhr !he, bent[it of crcditors: {c) Thc cot~dnuadon si- a breaci~ o£ any of thc Icnns or condil.,ions of th:is Agreemenl by either CITY or BUREAU' [bt more i.han thirty (30) daFs after ~,s th'men ~mficc of such breach is givcri lo the breacl:fing party by the other party; or CVB ("Y20()5 ffOT Fund Con[mci (Re* iscd) ~- Page 5 4,4 Right to lmmedia!e Termination Upon Litigation, N:otwit]~stan,:li!:-~g any other provisi(m o[' th~s Agreement, to mitiga~:e damages and [o prese~c evidcnce ~and issues lbr judicial [e thc other pm-ty i'~s: the evem: d'mr any pe'rson has ~:BS~:[Ldl:Cd ]ifigatkm concern:i ng fhe activities of tl~c non-tem]inafing pm%q and Ibc tc:rm[na[[ng par!y re ~sc nably believes r.lml: such acfivSt[cs arc req. u. ired u,,r prohJN[ed under '2'tis Agreemen!. ]n the event that [his Agree!1:!eili is term. inatc:d pLn:Sunni ro ~'4~3 or 4.4 ~BI REAU agrees to any and al~ m]t~sed fimds, or :rituals determined by CiTY to have been. ~sed improperl, y, 30' (lays after temlim!a~o!t of th.is Agrccmcn[. \:, GENEILkL PROVISIONS 5. I Sub¢orttraet 'for Performance o,f Services. Notlaing in ti6s Ag'reen:~ent shall pmhibh, nor be co'l:~s~/n.~ed tc:~ prohib[L ~.]~c a~reemen~, b}: ]3L. REA['; ~,~il:h :.moiher private cnlSly, person or o:rgm~izat~on I'br thc per:lbm:mnc~: of d]osc scr~,~ccs duscfil:~ed in ~2,1 above, h~ r]~¢ e,;cm tlmt BUREAU enters ~1l!.O ail}': arral:~gcment~ cont'racmaI or o'therwisc~ with .such other ent~ly, person or to, amj be sul::oect to a/ii provisions, tennis, and co[Kl.kions of Il:tis Agreement and to 'TI;:X. T.,sX CODI.:. ch, 351, il:lcltKJii).g rcpoMhq:g requJreraenls,, se~:x'trate ~:L.I.1IC~S ~IU)~BtOt].B[iCC, amnd ~!11i!;:iI:[ol'ls 8lid prol:rdbi't:ions pertainhng ,to expenditure of the agrccd pass~Ten~s ', '~ 5.2 lndepe~dent Contractor. !;iL, REAL shadI opcrale as an independent c(mt~Taclor as to alt services; 't,o be pcrfbnned under' ~hJs .Agrecmcn:t and nm. as 2:[~ officer, agora, scrvanL or employee CFFY. BUREAU shal have excaus:ivc contro} of' its operations axi per'!'on'na:~cc: of services hereunder, and such persons, entities, or m-ganizatiolss I:>cr.lbnning ~.]~e same a'nd BUREAI. 7 shall be so~ely responsibic .[br lhc acts and omissions of its direciors, ~n'=~= fn~,,~s, cmplosccs, agen[s, and st:[boon:tractors. BUREAU s!~MI no1 be considered a parmer or join~ vent:urcr witl'~ CITY, nor shall BL REAU be considered nor in a. n5 roamer hold itself om as an agent or o:rlScia[ representative of CITY. 53 Indemnificatiom BUREAL' AGRE!;S TO IND, EMNI~"~ HOiA) HARMI.,ESS, AND DEFEND C1T¥, ITS OFFICERS, AGENI'S, AND EMP!..OYEES FR@M AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES. DAMAGE. LOSS. OR LIABILITY OF W!!ATEVER KIND OR CHARACTF. R. ARISING O[T OF OR 1N CONNECTION WFI'It THE PEI:.D:OI. kMANC'E BY BtTREA{~ OR THOSE SERVICES CONq1!;MPLATED BY 1'HIS AGREEMENT, INCLUDING A!J. S L CH CLAIMS O,R CAt;SES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY I~AW, OR BASED, IN 'WHOLE OR IN PART, UPON A!A, EGATIONS OF NEGLIGENT OR INTENTIONAL ACI?S OF BUREAU, ITS OFF1CERS~ EhlPI.OYEES, AGENTS~ SUBCONTRAC17ORS, L ! CENSEES ANiD IN VtTEES, $..4 AssJgnmen/!:, B[jREAi,..i shah no~ assign Ibis Agreement ',viLhol~ fil"s~ Obl. air!i!sg t].le v?ritien consent of CIi~ ail rei:'un~ i'eceipt rcqucsted, or by hand-.delivery addressed to thc rcspecii,,e pm:Ties as :ll:~] !ows: BtJREAL City' of Derl!.on 2 [ 5 iE. McKinney DcnDr. t, TX 7620! Dent o n Clmmb er o f' Co mm el:ce [)enlo'rt Convent[on & Visitor: Bm'can Ki'm Phiilips Vice President ILO. ~}ox: [)rawer P Demon... Texas 762.02- ~719 5,6 I~mremeni. ']'his Ag;rccmcn[ a~Id each previsio;n, hereoF, m~d each. and every right, duty, ot)ligatio~L and liaLMBty sc:i; :i~bl'l:[] bercir~ shalI be binclim'~3 tipo!'t and inure lo title I]enelSt and. obliga[ion of CITY and BLTR EALJ and their' rcspeclivc st.~cccssors artd assigns. 5.? Appli~:aiio~ of Laws. Al! te!'~nss, con=di'!Scms, arid provisions of ti;ds Agrccmen[ are s~.~bject tt'~ ::dl a~pi:icable Jk:deral laws, sla~:e laws, thc: ("~' , ~ _narl. cr of' tl:~c Ciiy ,:If :De:riton, aC] ordinances passed puTsuant tl~crcto, and ali judicial deten]Mnations rciarive thereto. 5,8 iE×elasive Agreement, This Agreement contains ihe erttizc underslandhxg torte:! const/ttites the en'lSre agreemem: bccwecn ~l~c parLies !~ere~o concerning the subiect matter' contained ]~e:rein. There are I'10 repl'esentad, or~s, a~rc:cwl:lc[i[s, ali;!rlSjT<:lilel'l;tS, OF t!iidc:rstand, in:,gs, Ol:',ll or 'WF}i'tiCl'I~ exp:ress or implied, bet:ween or amo~:g d~c parties he:re~o., relat:iJ'tg t:o thc, s[~bj:ec!:: matter' of dtis Agree~]e~i, v,.-hid~ are not [hl~y expressed lnerein. The re.runs a.rtd conditions of this Agreement si'iai! pr,ex'ail l:~otwithstandir:g any va~da:nce in this Agreement fix~n't d'~e terms and conditions of any' other doctlmen[ rcl,aS'r~g to this ~ransaction or tl~csc' transactions. 5.9 l)uplicate Originals. This Agrcemcm is executed in duplicate ol"igil:~aJs, Headings. Tt~c headings and su'bl'~,e:aiings of ti~e various sections and par:.~grapl~s of Ag:mement are inserled merely ti:,r tl:~e ptn-l~OSC', o.[7 con~'c'nicn, cc a:n~t dr~ not express or imply any limitaiiom dclSr~i[ion, or cxtcnsicm of the speci:lSc iem]s of'the section and paragrapl'~ sa des/gnated~ 5,11 Se'~,erabili~y, If amy section, subsection, paragraph, sentcr~ce, c!ati.se, phrase or xv:mx~ in this Agreement, or appiication thereof !o any perso:n or cLrcmns[av, oc is held in¥'a!i~[ I? ;my cot!ri, of competent ,jt~fisdict:ion. si.ich holding; shall not a'ff:ect the valid.:itb~' of the rema:inhlg po'~i/ions of this Agreernenl., ml.d the parties h. er~'.by declare they wo~lci have on. acted aLi.ell remaining po~:-tio]]s despile any si.tct~ invalidity. CVt3 (7Y2005 HOT Fmw! Co~itact (f~evised) Pa.ge 7 (.. [ ~ must be I~amcd as an .add'ii:ional hlSL~:i:'ed o'n al;] po]lc~¢s (e×c:¢pt V, od<ers' Co:rnper, sation,'~ and pro of o f covm"agc slm[[ be st~bmitted p ri or Lo :~n } p',;L';,'na ent I:)y C ITY EXECUTED this ............... d.'.{> or ,2005. '[liE: CITY OF DEN'TON, TEXAS ATTEST: By:: JEN:N U:ER WALTERS, CITY SECRETARY By: El.I.,l ~E BROCK. MAYOR ATTEST: President APPR(3VED AS TO I:F Cj A.L FORM Sect,:em["y HOT F': ,:]4 C:ol::~trac::iRL-~:scd) .... Pa,:~e g Denton Chamber of Commerce Convention and ViSitor Bureau Adve~ising Print Advertising Convention Advertising Tourism Promotion Material Brochures Trave! Shows Tourism Services Special Projects "Event" Magazine "Event" Magazine Distribution Administration Administration S,a~ades Retirement Ca r Aiiowance Accounting Salsw Payroll Taxes Hca!th ~nsurance Liabi!ity Insurance Travel & Training Computer Equipment Copy Machine Warehouse ,StoraBe Destop Copier Lease Office Supplies Telephone Memberships Printi:ng Postage Or, ce Rent SPORTS ADVERTISING Convention & Trade Shows SPORTS ADM~N}ST~,T]ON Sales Manager' Sa!aG/ Car Allowance Health !nsumnce Payrol! Taxes PostaBe Travel & Traini;ng Membemhips Printin:g $ 37,350 2,500 5,000 10,000 2,500 11,000 2:,000 80,000 6,000 58,350 $ !06,518 2 5,500 5,603 !; 5,000 11,800 800 5,000 6,000 7OO 750, 1,500, 7,500 2,100 1 ,ooo 3,500 14,055 90,,626 $ 7,500 $ 44,350 1,800 6,157 3,000 5O0 4,000 1,000 1,000 $ 61,807 Exhibi}t A Teta! Budget $ 418,283 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: March 22, 2005 City Manager's Office Mike Conduff, City Manager SUBJECT An ordinance of the City of Demon, Texas declaring that upon the City Secretary's certification, that the candidates for District 2 and 4-Pete Kamp and Perry McNeill-are unopposed and are elected to office; requiring the City Secretary to post an order of cancellation in both English and Spanish; and declaring an effective date. BACKGROUND In 1995, the Texas Legislature amended the Election Code to permit the cancellation of an election under certain circumstances. Those circumstances include each candidate whose name is to appear on the ballot in a single-member district is unopposed including any write-in candidates and no proposition is to appear on the ballot. As the person responsible for preparing the official ballot, I hereby certify, as indicated by the attached Certification of Unopposed Candidates, that District Two candidate Pete Kamp and District Four candidate Perry McNeill are unopposed for the May 7, 2005 election. Respectfully submitted: Jennifer Walters City Secretary suhdiVisldd oilier Ihltd ii I:ouflty Itt which write-10 tole! mdy i~ ii' f ,~t~, 2.024. (.',:~rchm AlmlnM Cnndldncy I'r. Mhiled. c¢10nted only roi' .ltiilheg appearing on a list o1' write-lit candidate.4 ~ tit which:: . , i. ~ :: la) A person commhn nn oflren~e ir hy intimidnlion or by (I) e~lch I:atKtldate ~,hb.~ tlahte is t~J dpl~m od the ~1i0t unop~s~, ex,pt aS provided by Sobs~iton ih); ~)l{t{cnl mo~ivlmlOfl'{ }oveml.{ ~y ,~ elected ~{n H.I unite ~uCh a{ tingle- ~m~r dlstHct~, this ~t,~hapler ,ppi(cs to the election Iff d ~ieul~ left.rial Ual( If e~h' c.~ldate who~ fl~ le to up.at uti the ~all~ iff te~lurial unit Is u~p~sed dad flu nl-lnr~e pro~illud opposed ut- large ~ce is to ap~at on the bdloL su~hnptet applies lo tiff Uflup~ nt-{a~e r~ id ~uch afl' electio, ~8~lesm of W~lhcr afl oppo~d r~c {s to ap~af the hal{at Iff d p~{col~ te.{tofla{ on{t. (Added hy Acts I~, 74ih ~8.. ch. 667, ~ 1, eft. {09~. Amc,~ by Acts 1997. 7~th l~g., ch. i349. ~ 3. eft. Sept. 1, 1~7: Acts 2(X)i~ 77th 1~8., ch, 17. ~ {, eft. 2(X)2; Acts 2~,. 7Rib 1~8., ch. 13{6, ~ ~ eft. Se~. Sec. 2.05:L Cet'tlfledtlofl Ut Lllt,Jppo~d ~talus. (~) ~e ,uIh~rily te~dmlhle fm h~vin~ the o~c{fll p~pa~d ~hall cefllry iff ~riti,8 that e c~didatc i~ for elect(od tO ~ omce If: (I) odly one eaMidale'a nnme ts to he placed ~n th~ bdll~ for Ihai omee Ofl~r ~eclion 52.~3; add (2) no eandiddie'~ flame I¢ to he placed on a list of en~idatee for that o~ee under applicable law, (h) 1%e ce~flcdilofl ~hall ~ cldlve~d h, the paresis8 ~y I)f the ~lttlcal ~0~llvlslofl as et~n ns l~)s~lble nBcr the Illin8 deadlines For placement on the bMIot a~ Iisi of wflte-i~ ' ea~idates. (Added by Acts lOgS, 74th Lea., ch. 667, 9 I. eft. 8u~. ~afls of c(x:lciol) thc per,on Jill]assess or flltcnll)t~ e~ a per~on lo not file fin nprliunlion for n place on lac hnlh,T declaration of write-in candidacy ill 811 election thai subject to this mtl~-hnplt'r. S~lion 1.07, Penni (~) ~n offt'fl~e .n(h'r thi~ ~(.cli(m i~ il ('{;Iq~ ~ ini<(h'mcnnor bnlcmm t~ {allnlii{.lion or ('o('rci(.~ i~ n threat fn ct.moil fehmy. Iff which eve.t il i~ a fehmy ,d the third (k-~cc (~dded by Acts 19~, 74th Ix'g. ch. 667. 9 I. ell'. S,:ld. l. 1~5) ~;~. 2.059. SI)Stihl F. leclhm Iii Fill Yncnncy I. I.e[l~l.l.re. ca~lidnte ulecled h) lill n v.c.ncv in the legiqlnlmc if: { I ) each cnltdidnh' wh,,:c nnmc is to nppe,r uflopp,:~ed: (2) ~o proposition i~ lo ,pi:ear on the bulhd: nnd (3) aa cnndidflte'~ unme i~ h) be pl~ced on n li~l of write-i, ~andld,h..~ for lhnl ollice re,Icc S~hn~i('r !). Chaplet 146. (1:1 l[ n decln)nfio, lq mn, lc osier Suh~ectinn fa). the Cleclion day nt each pollin~ l,{:~c,' d~nl would hove been · e election. (c) ~e ~ecretn~ of ~tnle qhnll i~ue n ceflificflte hi each cnndJdnle in fha ~:llne manner e~ndidnle elected nt Iht ch. clio,. (Added By Act~ 2(~)1.77th l.c~., ch. 17. ~ 2. Sec. 2.056. Unolu)o~rd (/nt.lhlnle r.r la) la Ihh ~eclJOfl: (I) "~ertifyin~ n.lh(,rify" n)ennq: {A) lite ~ec~laty of nlnte, for n ~tntewide or district olficc: {~) the eodnly clerk, for n eotmty or precinct office. (2j "()~ee of the ~hiie {a) t)n i'ecetpt of the terrific,lion, the governing {+,ody of omcc described by .qcc-lio,t 52.1r~2(a)¢2) or thc political subdivlsiqfl by or, Jet bt ocdlnn,Ce {nay declare (bt '~hi.~ section applies only Ii) the geocral clecli.)n t(,il each unopposed eandldaie eiectcd to lite omce. ,i. · ~taie ,Ad county officers. ................. ' ............. ~... lc} A cedlrylng a,thodtv may declare a cnndidalc ~Rt~ ~fl electWfl ua~ at each ~lllfl8 pipes that WOUlO fl ~,' ;~ ..... ' ~en Um~ in I~ eiecliofl ,~ fl~M Off the ~flnol Ibc thai orlicc: nu(, ' · ' {2) tlo cnnd{dntc'~ nnme iq ~. ~ p{nced on n l}~l of write-in (c) A ced{fle~le uf election shall ~ {ms.cd to e~ch cn,dl. / c~tdates lot Ihnl oflicc ,oder Su~hnpler B. ('h,plc~ 14O. dale In Ihe S,,~ manner d,d al Ihe sdl~ lime tis ~ovlt~d ~t : o ca~idnte el~{~ al Ihe election. ~ candidate ~uml qenllty L:"~: ~ Id) Ir a deetnrnliofl iq re,de under Suhqeetion for Ihe olflce la the ~e ~aflfler h~ pmvldc~ r~, camlidate (It tile elccdo. Ibc that ollicc iq not held: taxi uleeled al ~e eleciiofl. (21 the nnme of lhe cnndi(hde i~ li~ted .n the l~,ilot (Added by Act~ !~. ~4th I~8., ch. 667, ~ I, ell. Se~. I, elects! to Ibc o[lice ~ urovi,h'd hy Ihim 19~. A~n~d by Acts 2(X)~, 78th I~g.. ch. 1~16. ! 42 eft,, (et ~l~e oflice~ nnd nnmc~ of nny cnndidnk'q declared ~ept. i~ 2(~37 elated osier thiq ~ct'lion ~hnll ~. Ii,lcd ~epnrntcly ,ftcr turtle,led rnce~ in lhe elecllon m~der the h,:ndi.~ "1 ~eiy ca,dltlale Ia qeall[y Id a, el~tio~ f~r thai ~mc~ Inke~ effecl. If Candidnte~ {)eclnred I~lccte(I." 'l~e cnndidule~ ~hnll ~' th~ll amend~nt i~ flt~ a~mved by ~e valero, ihi~ Act hn~ ~ e~l.. ~ing to Iheir tr~pective political pn~y nflHintion~ S:\O~c Docc~'r~\O~'dinmme~\O~Order of Cancell~tic.0 doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, DECLARING THAT UPON THE CITY SECRETARY'S CERTIFICATION THAT THE CANDDATES FOR DISTRICTS 2 AND 4 - PETE KAMP AND PERRY MCNEI-LL - ARE UNOPPOSED AND ARE ELECTED TO OFFICE; REQUIRING THE CITY SECRETARY TO POST AN ORDER OF CANCELLATION- IN BOTH ENGLISH AND SPANISH; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Secretary, in accordance with Section 2.052 as the person responsible for having the official ballot prepared for the May 7, 2005 City Council elections, has certified in writing that Pete Kamp, the candidate for District 2, and Perry McNeill, the candidate for District 4, are unopposed for election to office and that only one candidate's name is to be placed on the ballot for District 2 and 4 and that no candidate's name has been placed on a list of write-in candidates for that office under applicable law; and WHEREAS, upon receipt of the certification, the City Council wishes to declare the candidate for District 2, Pete Kamp, and District 4, Perry McNeill, elected to office; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The f'mdings set forth in thc preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Council of the City of Denton, Texas, hereby cancels the election scheduled to be held on May 7, 2005, in District 2 and 4 in accordance with Section 2.053(a) of the Texas Election Code and upon receipt of the City Secretary's certification as set forth above declares that the following candidates have been certified as unopposed and are hereby elected as follows: Candidate Office Sought Pete Kamp District 2 Perry McNeill District 4 SECTION 3. The City Secretary is hereby directed to place a copy of the Order of Cancellation which is attached to and made a part of this Ordinance for all purposes, on Election Day, May 7, 2005, at each polling place that would have been used in the election for the District 2 and District 4 City Council Election and to issue a certificate of election to Pete Kamp and Perry McNeill in the same manner as if she/he had been elected at that election in accordance with Section 2.053(a) and other applicable provisions of the Election Code. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. S:\Our Documents\Ordinance&OS~Ord~r of Cancellation.doc PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 ORDER OF CANCELLATION EJEMPLO DE ORDEN DE C.4NCELACI~N The City Council of the City of Denton, Texas, hereby cancels the election scheduled to be held on May 7, 2005 in accordance with Section 2.053(a) of the Texas Election Code. The following candidates have been certified as unopposed and are hereby elected as follows: El Consejo de ciudad de la ciudad de Denton, Texas por Ia presente cancela la elecci6n que, de Io contrario, se hubiera celebrado el De mayo el 7 de 2005 de conformidad, con la Secci6n 2.053(a) del C6digo de Elecciones de Texas. Los siguientes candidatos hah sido certificados como candidatos gnicos y por la presente quedan elegidos como se haya indicado a eontinuaci6n: Candidate (Candidate) Pete Kamp Perry McNeili Office Sought (Cargo al que presenta candidature) District 2 District 4 A copy of this order will be posted on Election Day at each polling place that would have been used in the election. El Dia de las Elecciones se exhibird una copia de esta orden en todas las mesas electorales que se hubieran utilizado en la elecci6n. Mayor (Alcalde) City Secretary (Secretario de ciudad) (seal) (sello) Date of adoption (Fecha de adopci6n) S:\Our Documents~FORMS\ORDER OF CANCELLATION.doc Prescribed by Secretary of State Section 2.051 - 2.053, Texas Election Code 5/02 CERTIFICATION OF UNOPPOSED CANDIDATES CERTIFICACION DE CANDID,4 TOS 1)NICOS To: Presiding Officer of Governing Body Al: Presidente de la entidad gobernante As the authority responsible for having the official ballot prepared, I hereby certify that the following candidates are unopposed for election to office for the election scheduled to be held on MaY ?~ 2005 Como autoridad a cargo de la preparacidn de la boleta de votacidn oficial, por la presente certifico que los siguientes candidatos son candidatos ~tnicos para eleccidn para un cargo en la eleccidn que se llevard a cabo el 7de Mayo,; 200~ List offices and names of candidates: Lista de cargos y nombres de los candidatos: Office(s) Cargo(s) Candidate(s) Candidato(s) District Two District Four Pete Kamp Perry McNeill Jennifer ~alters Printed name (Nombre en letra de molde) City Secretary Title (Puesto) Dat~o[ signi]~g O~e~a defirma) (Seal) (sello) See reverse side for instructions (lnstrucciones en el reverso) AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA iNFORMATION SHEET March 22, 2005 Legal Department Ed Snyder, Deputy City Attorney SUBJECT: AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING SETTLEMENT OF AN EMINENT DOMAIN ACTION STYLED CITY OF DENTON, TEXAS V. ED WOLSKI, TRUSTEE, ETAL, CAUSE NO. ED-2003-01177, FILED IN THE PROBATE COURT OF DENTON COUNTY; 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; AUTHOR/ZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE. BACKGROUND: On October 19, 2004, the City Council passed Ordinance No. 2004-328, authorizing the City to deposit the Special Commissioners' Award ($126,600.00) into the registry of the court. The defendants appealed the Award thereby converting the eminent domain action into a civil trial. Defendants have offered to settle this action for the sum of $133, 070.00 which $6,470.00 above the amount of the Award. OPTIONS: Agree to the settlement or proceed to litigate the matter as a civil trial. RECOMMENDATION: The Legal Department recommends that the settlement offer be accepted. PRIOR ACTION/REVIEW: Based on Ordinance No. 2004-328 the City deposited the $126,600.00 Special Commissioners' Award into the registry of the court on November 18, 2004. FISCAL INFORMATION: $133,070.00. Ed Snyd_e[. ~, / ~ Deputy C~ty ~7t~ey 830~r Bootme~lvli,c ellaneo~ s~5~tg*adlt infm'mafi~l ~e~q-Wolr&i-$ ae~ea doe Om INANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING SETTLEMENT OF AN EMINENT DOMAIN ACTION STYLED CITY OF DENTON, TEXAS V. ED WO£SKI, TRUSTEE, ET AZ, CAUSE NO. ED-2003-01177,.. FILED iN THE PROBATE COURT OF DENTON COUNTY; 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; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance .No. 2004-328, the City Council authorized the deposit into the registry of the court of the Special Commissioners' Award in the sum of $126,600.00 (the "Award") for the acquisition of certain real property in an eminent domain action styled City of Denton, Texas v. Ed Wolski Trustee, et al, Cause No. ED-2003-01177, filed in the Probate Court of Denton County, Texas (the "Eminent Domain Action"); and WHEREAS, the City has deposited the Award into the registry of the court; and WHEREAS, defendants appealed the Award thereby converting the Eminent Domain Action into a civil trial; and WHEREAS, defendants have offered to settle the Eminent Domain Action for the total sum of $133,070.00 which is $6,470.00 above the Award; and WHEREAS, the City Council of the City of Denton, Texas hereby finds that the settlement amount of $133,070.00 is appropriate and in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION t. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Council hereby approves the settlement of the Eminent Domain Action for the amount of $133,070.00 (the "Settlement Amount"). SECTION 3. The City Manager, or his designee, and the City's Attorneys are hereby authorized to act on the City's behalf in approving and executing any and ail documents, and to take other actions necessary, to fmalize the settlement. SECTION 4. The City Manager, or his designee is hereby authorized to expend the funds in accordance with the settlement, which includes the Settlement Amount, court costs, closing costs, and other incidental costs necessary to consummate the settlement. SSOur Doeuments\Ordinatees~55Wolski Settlement Ordinance.doc SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FOR3dI: HERBER~ ~ORNEY. r_.-~/~ Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Utilities Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City of DeNon abandoning and vacating a 0.08 acre Public Utility easemem, recorded in Volume 974, Page 156, Deed Records of DeNon County, Texas, a 0.07 acre Public Utility easemem, recorded in Volume 974, Page 152, Deed Records of DeNon County, Texas, and a 16' public utility easemem tract, recorded in Volume 974, Page 154, Deed Records of Denton County, Texas; and providing an effective date. BACKGROUND The DeNon Affordable Housing Corporation has requested that the City of DeNon abandon its utility easemem imerests in conjunction with the pending developmem activity known as Nevada Court Addition. The existing sewer line, water main and fire hydram that necessitated the subject easemems are slated to be taken out of service within the scope of construction of the public improvements for the Nevada Court Addition. Staff performs an analysis on requests for easement abandonment as follows: · Is the property tracts requested for abandonmem considered "excess public utility easemem"? · Do the property tracts requested for abandonmem have a cominued public use? · Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? · Would the graining of this request establish a precedem for public utility easemem abandonment for future requests? Staff findings on this analysis are as follows: 1. The public utility easement tracts requested fit the criteria of excess public utility easement. Excess public utility easemem is defined as: Property acquired or used by the City for public utilities and subsequemly declared excess (not needed for the Project, utilities or facilities). 2. There are public facilities installed in the proposed abandonment tracts; However they are slated to be physically abandoned within the scope of construction of the public improvemems for Nevada Court Addition, therefore there is no future public use for the existing utilities. All evidence suggests that the existing water and sewer lines were installed in 1979 to serve two residemial structures. Those residemial structures have since been removed from the property, in concert with the anticipated development of the proposed residential subdivision. In a present assessment of such a situation, one might conclude the public facilities were actually functioning as "super-sized" service lines, except for the placemem of a fire hydram within the property, presumably for the benefit of the prior residemial structures. 3. Abandonment is in the public interest because the area for subject abandonment no longer has a compelling future public use. 4. This abandonment does set a precedent because the above three standards have been met. OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the ordinance. ESTIMATED PROJECT SCHEDULE Spring 2005 PRIOR ACTION/REVIEW Development Review Committee approval FISCAL INFORMATION Application fee of $150.00 EXHIBITS 1. Vicinity map 2. Draft ordinance Prepared by: Mark A. Laird Real Estate & Capital Support Technical Assistant Respectfully submitted: Jim Coulter, Director Utilities Department VICINITY MAP AUDRA HOLLAND LACE EE LEM ~U PAl Z LLI FEMA NORTH N.T.S. EXHIBIT 1 ORDINANCE AN ORDINANCE OF THE Cii;Y OF DENTON .ABANDONING AND VACATING A 0,08 ACRE PUB.LiC UTtLITY EASEMENT. RFiCORDED ?N VOLUME 974., PAGE I56, OF THE REAL PROPERTY RECORDS OF DENTON COUNT'f, TEXAS, A 0,07 ACRE PUBLIC UTII.II'Y EASEMENT? RECORDED IN VOLUME 974, PAGE 152, OF THE REAL PROPERTY RECORDS OF ~)ENTON CO[.NTY, TEXAS, AND A i6' PUBLIC' UTILITY EASEMENT TRACT, RECORDED fN VOi.,[_?ME 974_ PAGE I54~ OF THE REAL PROPER. TY RECORDS OF DENTON COUNTY, TEXAS'. AND PROVIDING AN EFFEC1'IVE DATE.: WHEREAS, the City: of Dent:on has received a toques: from the underlying .[k::,c simple County. Texas, a 0~07 acre public 't~J!]ii}' casclx~onL recorded iai volume 974, page 152 of the ~Real 'voltltl'~C 97& paae 154 of lhe Real Properiy Records of Der~on Cotmty~ Texas {coiIectiveiy called the '~Aha~doned EaSC[llCilr[s"), are gener'a~ly depicted hn: Exhibits '~A", "B", and "C~* attached hem~o aBd made a pa:ri hereof by re~*erence; Iii'id. WHEREAS, sia.:~'t' Inas reviewed ibc requested ab:u:~dol~rner~[ and detem~incd that that the Abandoned Easeme~ls are no longer needed and thereibre recommends approval of abandmm'tent; and, WHEREAS, thc City Council of ihe City of Demon, Texas lms determined l.l'mt i!; is in the puL4ic im'eres[ to abandon the AI0andolm~en.~ E. ascmcn[ and the Cily's imeresl therein to I:.]Lle undcrlyh.~g l;::e owner, fine Demon AtTordab[c Housing Corporation ("Owner"); NO'W, THEREFORE~ '[']',IE COUNCIL OF THTE CITY OF DENTON. TEXAS, HEREBY' ORDAINS: S;ECT]ON ~. '['he !-ecil:atiol'~£ and findings contained in !;:h.e preamble oF th. is ordinance are incorporated herein by ref'ereBce, SECTION 27 The Abandonme:~t Easements are hereby abandoned with ail o~' the City's right, title ami hl. terests in and to the AbaBdollflle[)~. Easements being released and qnh c~aimed to. thc Owner. This abm~donmen~, only affects lhe abandonment of lhe A. bandonmet~t Eas.k}lxlc.[l.{s and does not aff~'ct an abandonment of any oilier rights the City may have in and to the areas being abandoned by virtue of other easeme~[s or street righl<xlLway' thai may cross or overlap the Abandonmen!; Easements. A certified copy of this ordinance may be recorded in the, Real Properly Recr)rds of Denton Con'at:y, Texas lo evidence this abandonment. This abandomncnl abandoned EXHIBIT 2 A~, ?RC,\, ED ~i'~i:s d'~e .................. day of' 2005. EUL!NE BROEK. MAYOR .,:,,-FTEST: ,I ENNiFER WALTERS. CITY APPROVED .,AS TO [~EGA [.. FORM: .HE~,ERT L, PROU'TY, CITY ATJ'ORNE'T P~tge 2 EXHI8,~T A AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT - SI04-0042 Hold a public hearing and consider adoption of an ordinance of the City of DeNon, Texas, providing for a zoning change to create an overlay district consisting of a historic conservation overlay district being generally located on the east and west sides of Bell Avenue, south of Sherman Drive and north of University Drive; amending Chapter 35, Subchapter 7 of the City of DeNon Code of Ordinances, "DeNon Developmem Code," "Special purpose and overlay districts" to add section 35.7.7 "Bell Avenue Historic Conservation District" providing for the creation of Bell Avenue Historic Conservation Overlay District and regulation; such overlay district establishes different regulations to help conserve the historic, architectural, and cultural attributes of the district; providing for a severability clause; providing for a penalty in the maximum amoum of $2,000.00 for violations thereof; and providing a severability clause and an effective date. The Historic Landmark Commission recommended approval (5-0). The Planning and Zoning Commission recommended approval (6-0). BACKGROUND Applicam: Bell Avenue Neighborhood Association DeNon, TX The applicant requests creating a historic conservation overlay zoning district to the existing zoning. Pursuant to Sec. 35.7.7.4 of the Denton Development Code, there must be a finding that more than 50% of the owners within the proposed historic conservation district who collectively own more than 50% of the land area within the proposed historic conservation district are so requesting. The area consists of 29 lots with 31 structures with 31 owners. The requirements of Section 35.7.7.4 of the Code are met by this application, with 21 owners owning 76% of the area, agreeing to the application. Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has received six written responses from property owners within 200 feet of the subject site and 18 written responses from property owners within the proposed district. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Historic Landmark Commission recommends approval (5-0). The Planning and Zoning Commission recommends approval (6-0). PRIOR ACTION/REVIEW The following is a chronology of SI04-0042: 1995--City of Demon hires Knight and Associates to conduct a historic resource survey. The report recommended that the Bell Avenue and Locust/ Austin Street areas be considered for historic conservation district (HCD) status. April 10, 2000--HLC discusses organizational meetings for proposed HCDs for Austin/Locust Street area and Bell Avenue area. May 22, 200--First Austin/Locust Street area neighborhood meeting to discuss possible conservation district. June 12, 2000--First Bell Avenue neighborhood meeting to discuss possible conservation district. December 10, 2001--HLC recommends an ordinance allowing the creation of conservation ordinances to P&Z. Motion carried 7-0. June 12, 2002--Planning and Zoning make s recommendation to City Council concerning the ordinance to add a Conservation district. Motion carried 5-1, Commissioner Bill Keith opposed July 16, 2002--City Council Public Hearing on conservation districts ordinance. Council postponed action and requests more information from staff July 23, 2002--City Council Work Session on ordinance September 17, 2002-- City Council adds section 35.7.6 to Chapter 35, subchapter 7 of the City of Demon Code of Ordinances. 2000-2004--HLC received reports from Bell Avenue area group on a regular basis regarding the neighborhood's work on building consensus and design guidelines. March 8, 2004--Bell Avenue submits application for HCD status. HLC recommends approval of the application to P&Z staff. July 29, 2004--Bell Avenue Design Guidelines Neighborhood Meeting, City Hall Council Chambers. August 23, 2004--Design Guidelines Neighborhood Meeting, Trinity Presbyterian Church October 27, 2004--Planning & Zoning Commission work session on Bell Avenue HCD. December 1, 2004--Second Planning & Zoning Commission work session on Bell Avenue HCD. February 22, 2005--City Council work session on Bell Avenue HCD. ATTACHMENTS 1. Staff Analysis 2. Overlay Map 3. Public Notification (Property Owner Notification Map) 4. Ordinance 5. Minutes 6. Proposed design guidelines from Bell Avenue Neighborhood Association 7. Amended design guidelines from staff (Legal, Historic Preservation Officer, Planning staff) Prepared by: Julie Glover Main Street Coordinator Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The applicam requests adding a historic conservation overlay zoning to the existing Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial 4 (NR-4) zoning districts. After reviewing the application, information, and public hearing comments, the Historic Landmark Commission (HLC) recommended a creation of a Historic Conservation District (HCD) for the area outline in the original application. The HLC believes the area designated meets the requirements of the statute. The proposed district must meet criteria to be considered for Historic Conservation District pursuant to Sec. 35.7.6.3 of the Denton Development Code. The criteria is as follows: a. Must include buildings, structures, or sites which are 50 years of age or be of historic significance. This criteria is met as 24 buildings and structures are 50 years of age or more. b. Must include buildings, structures, or sites that have common character defining features and be of common form. The proposed district includes a mixture of several distinctive styles which are to be preserved. Some of the styles presem are colonial revival, Tudor revival, ranch and craftsman bungalow. c. Must include buildings, structures, or sites which are similar in size, massing and scale and/or have a common streetscape and/or have similar spatial relationships and/or contain common visual qualities such as vegetation, vistas, orientation, set back, spacing, site coverage, exterior features, or materials. d. Must express a local idemity as recognizable combinations of qualities common throughout an idemifiable geographical area. The proposed area shown in the application fits this criteria. The area proposed has the mixture of styles, spacing, and size and that distinguish it from other areas in the City. The proposed Bell Avenue Historic Conservation District contains homes with the type of unique architectural features that need to be conserved. The area represents the history of DeNon and its loss would be a blow to the historic and cultural soul of the City. The preservation of this area through a Historic Conservation District will help preserve and maintain an important part of the historical heritage of the City, without hurting the future economic developmem of the City. Existing Condition of Property The subject property is platted and developed. Adjacem Zoning North: Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial Mixed Use 12 (NRMU- 12) zoning districts South: Dowmown Commercial General (DC-G) zoning district East: Neighborhood Residemial 3 (NR-3) zoning district West: Neighborhood Residemial 3 (NR-3) and Neighborhood Residemial Mixed Use 12 (NRMU- 12) zoning districts Comprehensive Plan Analysis The creation of a Bell Avenue Conservation District is a specified strategy within the Denton Plan. As per the plan: "The Historic Landmark Commission and city preservation officer will identify and recommend areas within the city limits that qualify for conservation district designation." (The Denton Plan, pg. 96.) Enacting appropriate historic and conservation districts preserves the unique quality of neighborhoods within the city and achieves land use and historic preservation goals of protecting the integrity of existing neighborhoods. Recommendation After reviewing the application and requested information, the staff has determined that the proposed Bell Avenue Historic Conservation District meets the requirements of the Denton Development Code and is in compliance with the intent of the Denton Plan. It is our recommendation that the proposed district is eligible for consideration for Historic Conservation District status. The Historic Landmark Commission recommended approval (5-0). The Planning and Zoning Commission recommended approval (6-0). ATTACHMENT 2 Conservation District Overlay Map WOODI-&N D RQ BERTS wOODLAND MILLEI~, MOPELLE B HALPEI'IHI , DOH~LD D ATTACHMENT 3 Notification Map 200 FOOT BUFFER T FOR / 'OODLAI UNI tD VER '- ' \ D m 500 FOOT BUFFER Public Notification Date: December 28, 2004 200' Legal Notices* sent via Certified Mail: 62 Number of responses to 200' Legal Notice: [] In Opposition: 3 [] In Favor: 17 [] Neutral: 4 Those property owners in opposition represent 0.50% Attachment 4 Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE TO CREATE AN OVERLAY DISTRICT CONSISTING OF A HISTORIC CONSERVATION OVERLAY DISTRICT BEING GENERALLY LOCATED THE EAST AND WEST SIDES OF BELL AVENUE, SOUTH OF SHERMAN DRIVE AND NORTH OF UNIVERSITY DRIVE; AMENDING CHAPTER 35, SUBCHAPTER 7 OF THE CITY OF DENTON CODE OF ORDINANCES, "DENTON DEVELOPMENT CODE", .... SPECIAL PURPOSE AND OVERLAY DISTRICTS" TO ADD SECTION 35.7.7 "BELL AVENUE HISTORIC CONSERVATION DISTRICT" PROVIDING FOR THE CREATION OF BELL AVENUE HISTORIC CONSERVATION OVERLAY DISTRICT AND REGULATION; SUCH OVERLAY DISTRICT ESTABLISHES DIFFERENT REGULATIONS TO HELP CONSERVE THE HISTORIC, ARCHITECTURAL, AND CULTURAL ATTRIBUTES OF THE DISTRICT; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. WHEREAS, the City Council finds that there are areas of the city which reflect elements of the city's cultural, social, economic, political, architectural or archeological history which should be conserved and protected; and WHEREAS, the City Council finds that by allowing the creation of historic conservation districts that it will provide flexibility in protecting the particular cultural, social, economic, political, architectural or archeological history of these areas; and WHEREAS, the City Council has received recommendations from the Historic Landmark Commission and the Planning and Zoning Commission, after giving the required notices and required public hearings recommending that the city should allow the creation of the Bell Avenue Historic Conservation District to protect the city's architectural and cultural attributes; and WHEREAS, the City Council finds that allowing the establishment of such historic conservation districts serves a public purpose; WHEREAS, the Historic Landmark Commission recommended the change in zoning to create the Bell Avenue Historic Conservation District; WHEREAS, the Bell Avenue Historic Overlay District area is more particularly described in Attachment "A" attached hereto and made a part hereof by reference; and WHEREAS, on January 12, 2005, the Planning and Zoning Commission concluded a public hearing as required by law, and unanimously recommended approval of the requested change in zoning; and S:\Our Documents\Ordinances\05\Bell Avenue Conservation District.doc 1 WHEREAS, the City Council makes the following findings: ao co The change in zoning creating the overlay district, is consistent with the Comprehensive Plan; and The overlay district will protect and enhance the Property and surrounding area which are distinct from 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 imerests by preserving the imegrity of the neighborhood surrounding the overlay district while offering protection to the unique architectural and cultural attributes of the overlay district; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations comained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The zoning for the tract described in Exhibit "A" is rezoned to create the Bell Avenue Historic Conservation District. SECTION 3. The City's official zoning map is amended to show the change in zoning district classification. SECTION 4. The following amendmem to Chapter 35 will be the applicable regulations to the overlay district. Chapter 35, Subchapter 7 "Denton Development Code", "Special Purpose and Overlay Districts", Code of Ordinance, City of DeNon Texas is hereby amended by adding Section 35.7.7, Bell Avenue Historic Conservation District to read as follows: 35. 7. 7 Bell Avenue Historic Conservation District 35.7.7.1 Purpose The purpose of establisNng the Bell Avenue Historic Conservation District is to: A. Safeguard the heritage of the City of Denton by preserving the Bell Avenue area of the city wh/ch contain landmarks, buildings, and/or sites which reflect elements of the city's cultural, social, economic, political or architectural or archeolo~cal h/story; B. Stabilize and improve property values; C. Ensure compatibility of new construction and structural alterations with the existing scale and characteristics of surrounding properties; D. Foster civic pride in the beauty and accomplishments of the past; E. Identify and promote the use of h/storic resources for the education, pleasure, and welfare of citizens of the City of Denton. 35.7.7.2 Definitions The following xvords, terms and phrases, xvhen used in th/s Subchapter, shall have the meaaings ascribed to them in th/s section, except where the context clearly indicates a different meaning: S:\Our Documents\Ordinances\05\Bell Avenue Conservation District.doc 2 HPO: The Historic Preservation Officer for the City of Denton (HPO). Landmark: Any building, structure, site, district, area or land of arcNtectural, Nstorical, archaeological or cultural importance or value xvNch the city council determines shall be protected, enhanced and preserved in the interest of the culture, prosperity, education and general xvelfare of the people. Landmark Commission: The City of Denton Historic Landmark Commission (Landmark Commission). Site: The location of a sigrfificant event, a preNstoric or Nstoric occupation or activity, xvNch may include open spaces, or a building or structure, xvhether standing, ruined, or varfished, xvhere the location itself possesses historic, cultural, or archeolo~cal value regardless of the value of any existing structure. 35.7.7.3 Application of Regulations A. It shall be unlaxvful for any person to do, or alloxv or cause any other person to do, any of the folloxving acts on any property located xvitNn the District xvithout first applying for and receiving a certificate of appropriateness from the Landmark Commission. 1. Constructing a nexv building or making an addition to an existing building. 2. Reconstructing, altering, changing, or restoring the exterior fagade of any existing building. 3. Placing or locating any building. 4. Performing any act for xvNch a certificate of appropriateness is required by this subchapter. B. Any construction, alteration, or improvement made on any property xvitNn the District xvNch xvould not require a certificate of appropriateness by reason of it not being visible from any public street as provided in this subchapter, shall be submitted to the HPO, prior to the beginrfing of the xvork, for Ns/her determination of xvhether the improvement xvould be visible from a public street. C. Other regulations applicable to the District as contained in part of the Code of Ordinances shall continue to apply to the District, except as specifically modified herein. D. If any provision of tNs subchapter conflicts xvith any other provision of the Code of Ordinances, the provisions of tNs subchapter sh~Jl govern and control. E. Where any provision of tNs subchapter modifies any provision of any other ordinance applicable to the District, the xvords used herein shall have the mearfing defined in the provisions of the ordinance modified, unless the defirfition is other~vise provided herein. 35.7.7.4 A. Approval Procedures The requirements and procedures for certificate of appropriateness shall be the same as those provided for in subchapter 35.6.9 of the Code of Ordinances. 35.7.7.5 Architectural Regulations Architectural requirements in the Bell Avenue Conservation District shall be as follows: (1) (2) (3) (4) Main Building. Main buildings must be compatible in scale with structure existing in the district. Accessory Buildings. Accessory buildings which are visible from any public street, other than an alley, must be compatible with the scale, shape, roof form, materials, detailing and color of the main building. Architectural Detail. Materials, colors, structural and decoration elements and the manner in which they are used, applied or joined together must be compatible with nearby and adjacent structures. Additions. All additions to a building must be compatible with the dominant horizontal or vertical characteristics, scale, shape, roof form, materials, detailing and color of the existing building. Color. Colors of all structures must be complementary to each other and the overall character of the main building. S:\Our Documents\Ordinances\05\Bell Avenue Conservation District.doc 3 (6) (7) (8) Facade Materials. The only permitted facade materials will be brick, wood siding, wood, stone and stucco. Artificial facsimiles of these materials will have to be considered on a case by case basis. Historic architectural elements of the facade are to be preserved if they are still historically accurate at the time of the creation of the district. Roof Material and Colors. Roof materials and colors must complement the style and overall scheme of the structure. 35.7.7.6 Existing Construction A. Repairs shall be made in a manner that preserves or prolongs the structural integrity of the character defining features of a property. Repairs shall be executed in a manner consistent xvith the design guidelines established by each individual Nstoric conservation district. B. Repairs to structures that are deemed not to contribute to the character defining features of the district xvill not have to comply xvith the design guidelines as long as the repairs are consistent xvith current architecture of the structures. 35.7.7.7 A. 35.7.7.8 A. Alterations to Existing Construction Exterior structural alterations along the street frontage of h/storic buildings or structures should be avoided and shall be kept to a miaimum. B. Design for structural alterations to existing buildings or structures in the Nstoric conservation district shall conform to the design guidelines established by each individual Nstoric conservation district. The design sh~Jl be compatible xvith the character defiaing features of the majority of surrounding properties and exNbit similar size, massing and scale as nearby contributing buildings or structures. C. The design guidelines xvill not apply to structures that are deemed not to contribute to the character defining features of the district as long as the alterations match the existing exterior structure~ New construction; Structural Enlargement or Reduction When ne~v buildings or structures are proposed ~vith/n the Bell Avenue Historic Conservation District, their design shall be compatible with the h/storic, cultural, or architectural character of the area. The design shall promote the existing spatial and visual qualities in the h/storic conservation district, including height and scale of buildings or structures, orientation, set back, spacing, site coverage, and exterior features. Design for nexv construction shall conform to the design guidelines established by each individual Nstoric conservation district and a certificate of appropriateness shall be required under the same process as in section 35.7.6.9. TNs section shall not apply to nexv construction to replace a building that xvas deemed not to contribute to the character defiaing features of the district. The nexv construction must match the height, scale, orientation, set back, spacing, site cover%e and exterior features of the building xvNch it is replacing. Nexv construction must meet the provisions of subsections A and B herein if a building permit is not applied for xvitNn six months and construction does not be~n xvitNn i2 months of the damage, or destruction of the structure. 35.7.7.9 Design Guidelines Design guidelines are attached as Appendix A of this subchapter. The design guidelines are to help guide the HLC, residents, and developers in determining conforn~ty xvith the conservation of the Nstoric and architectural heritage of the Bell Avenue Conservation District. SECTION 5. If any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. S:\Our Documents\Ordinances\05\Bell Avenue Conservation District.doc 4 SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. That this ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Demon Record-Chronicle, the official newspaper of the City of Demon, Texas within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Ordinances\05\Bell Avenue Conservation District.doc 5 Exhibit A ~OOD I~N D ,~ [,1[~ U EFIL. STE,; EIt O ~3 I~l? ~ J~ 191~ ~1917 1927 1'9(J3 //I H'~, J D E H. 6 ?, F: i 51iCJ r,l~, ~ i~,~ LL. T!;i D B NiB ROBERTS 1926 S[,I FrH, RKHAPD6 1920 WOODLAND f~llL LE P~, f,1Ol~ ELLE B HALPEI~I~I¥, DOII,~LD D 1816 1812 J EI~I/,Xd~ & L~ CHHEa, D J B'IIX,I~ & E~CHHE~ D Appendix A, Subchapter 37.7.7 Bell Avenue Conservation District Guidelines Like Historic Districts, Conservation District status is a form of overlay zoning which adds a level of protection to selected neighborhoods. These guidelines will help to ensure sensible and harmonious design in terms of massing, fenestration and scale for cases involving new construction or developments that include infill construction within established neighborhoods. In terms of proposed exterior rehabilitation or maintenance of existing structures, the guidelines will provide property owners with solutions that respect the traditional design and intention of the built and natural environments. In addition to these guidelines, development is also subject to the requirements in the Denton Development Code as they relate to building height, lot size, setbacks and parking. The Bell Avenue Conservation District consists of the area facing Bell Avenue between University Drive (Highway 380) and Sherman Drive (FM 428). The purpose of these guidelines is to prevent the loss of the District's historic buildings, and to serve as a guide for rehabilitation of existing buildings, construction of new buildings, and additions and relocation of buildings so as to preserve the historic and cultural character and the visual identity of the District. EXISTING BUILDINGS/STREETSCAPES Faqade Treatments Conservation Districts seek to preserve the faCade(s) of existing structures visible from the public right of way or street. The crucial aspects involve the appearance of the faCade(s) and the fenestration (e.g., placement of openings) of windows, doors and related trim. 1) Materials a) Original Materials 1) Brick or stone that was originally unpainted should remain so, since irreversible damage can result from attempts to remove paint by methods such as sandblasting. Painting or covering original brick or stone is discouraged. 2) Retain significant character defining wooden or metal faCade elements. Examples include cornice brackets, gingerbread, decorative trim elements, ornamental barge/fascia board, and soffit. 2 b) Maimenance 1) The United States Department of the Imerior's publication, Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings indicates that light detergems and water are the only acceptable methods for cleaning masonry. However, certain chemical stripping agents are safe to use on masonry surfaces within controlled environments, and are acceptable to use. Upon request, the Texas Historic Commission (512-463-6092) or the City of DeNon Preservation Officer (940-349-8529) can provide details as to these cleaning agents. 2) Sandblasting and other methods that utilize harsh abrasives/chemicals, or contents under high pressure are not permitted. 3) When repoiming masonry, every effort must be made to duplicate the original strength and color of the original mortar, so as not to damage the brick or stone face due to spalling and to help the repair blend in with the original work. 2) Roofs a) Existing roofs that are visible from the public right of way should retain their profile as it relates to shape and slope. Appropriate roof treatments in Conservation Districts include dimensional shingles, real or synthetic slate shingles or standing seam metal. b) Historic systems that are imegral to the roof, such as flashing, and leader/conductor boxes, built-in gutters, downspouts or snow guards, should be retained and maintained on a regular basis, as these types of systems often were crafted of heavy gauge, resiliem materials such as copper or zinc and generally outperform modem materials, as well as retain a patina and contribute to the appearance of the structure. c) Buildings that incorporate a sloped roof, such as a gable and/or hipped roof, often feature decorative elements that should be retained, including but not limited to, roof cresting, ridge caps and finials. 3) Doors a) Replacement doors should be sized to fit in the existing opening. The opening should not be altered so as to accept either a smaller door (e.g., filling in excess space with material such as lumber, bricks or cement blocks) or to facilitate a larger door or doors (e.g., knocking out part of the surrounding wall and reframing the opening). 4) Windows a) Window openings should not be altered to accommodate replacement windows (e.g., "blocking down" or "blocking in" the opening). b) Replacement windows should relate to and be appropriate for the age and architectural style of the structure. c) In situations where original windows remain, every effort should be made to repair such windows, rather than replace them outright. d) Certificate of Appropriateness review will be required for any window repair or change due to code and safety regulations. 5) Porches a) Character defining details, such as decorative wooden or metal trim, turned wooden or cast iron columns, sections of the balustrade (e.g., spindles, newel posts and hand/top railings), and skirting should be retained. Every effort should be made to repair damaged portions of original materials. b) Porch roofs and their original character defining features, such as shed roofs commonly found on rowhouses or gabled roofs specified on semi-detached twins or detached homes, should be retained. 4 c) Original porch flooring or ceiling materials, such as tongue and groove planks, also known as center matched strip flooring (also used as a ceiling material), should be preserved and retained wherever possible, or replaced in kind. Building Materials, Proportion and Profile Materials to be used for repairs to, or new additions to, existing buildings should harmonize with existing materials. Appropriate wall materials shall include, but not be limited to, brick, stone, stucco, natural wood or cementious siding. Any side, front or rear addition that is visible from the primary street, and which increases the footprint of the main building, would be reviewed. 1) Roofs: a) For new construction, the principal roofline should be consistent with the adjacent streetscape. b) New additions must respect the existing building's roof profile and, if visible from the primary street, be in harmony with it in terms of form, texture and color. c) Appropriate roofing materials, when visible from the public right of way, should consist of dimensional shingles, real or artificial slate, wooden shakes or standing seam metal. 2) Doors: a) For new construction, principal facades facing the street shall contain an entry door. 1) For corner properties, either fagade facing the street can qualify as 'primary,' and thus be eligible for placement of the entry door. 3) Porches: a) Residential new construction should incorporate a front or side porch, if a porch exists on the immediately adjacent properties within the block face. 4) PaiN: a) Certain colors prohibited Fluorescem, metallic colors are not permitted on the exterior of any structure in the district 5) Windows: a) Primary windows should be harmonious with adjacem properties and generally reflect vertical proportions (e.g., taller than they are wide). Accessory or ornamemal windows such as gable windows, sidelights and transom windows are allowed. 6) Utilities: a) Utilities, such as gas and electric meters, should not be placed on or along the primary faCade of new residemial or commercial structures, when possible. b) Where visibility of utilities is an issue, they should be: 1) pained so as to blend imo the background. 2) screened with vegetation so as to minimize the impact on the facade. 3) placed at or near ground level. c) HVAC equipmem should be placed on or along the rear facade or rear half of secondary facades and be screened from view by vegetation or fencing as referenced below. d) Cable and satellite television accessories, such as dishes and amennae, should be located on the rear half of the side facades or rear half of the roof, out of plain view where possible. 7) Fencing: a) All matters regarding fencing to be located in the from yard, or from and side yards of a corner property, shall fall under the jurisdiction of the amended portion of Section 35.13.9 of the City of Demon Developmem Code 8) Topography: a) The site for new construction which is within view of the public right of way shall be in harmony with existing topographical features typical of the neighborhood. REVIEW PROCESS All exterior changes require a Certificate of Appropriateness (CEA) prior to beginning work. The CeA should be filed with the Historic Preservation Officer (HPe). All existing timelines will be followed. Things that require a CeA include: 1. Constructing a new building or making an addition to an existing building 2. Reconstructing, altering changing or restoring the exterior faCade of an existing building 3. Placing or relocating a building 4. Removing or demolishing exterior architectural features 5. Constructing, repairing or erecting a permanent improvement (fence, driveway, etc.) Any ordinary maimenance or repair shall be submitted on a CeA to the HPe prior to the beginning of the work to determine whether the work jeopardizes the character of the building or district. Examples of routine maimenance would include: 1. Paint 2. Repairing the structure using like materials (wood with new wood, composition shingles with new composition shingles, etc.) 3. Replacing windows or doors with like materials of the same size If the HPe determines that the work should be reviewed by the HLC, they will place it on the next agenda and notify the applicant of the time and date of the public hearing. If the HLC denies the CeA, the applicant may appeal their decision to the DeNon City Council. DEFINITIONS 1. Addition: A construction project physically connected to the exterior of building. 2. Alteration: Any change affecting the exterior appearance of an existing improvement by additions, reconstruction, remodeling, or maintenance involving changes in form, texture, or materials. 3. COA: Certificate of Appropriateness; a form which must be filled out and turned in to the Historic Preservation Officer prior to beginning exterior work on a structure. 4. Demolition: The act or process of wrecking, destroying, or removing any building or any part thereof. Demolition includes, but is not limited to, the removal of a building from its site, or the removal or destruction of a faCade or surface. 5. Design Guidelines: Written criteria, supplemented by graphic illustrations as appropriate, illustrating architectural considerations, which will affect the graining of building permits within the urban conservation district. 6. Facade: Any of the exterior faces ora building. 7. HLC: The City of Demon Historic Landmark Commission. 8. HPO: The City of Demon Historic Preservation Officer. 9. Improvement: Any building, structure, fence, gate, wall, walkway, parking facility, light fixture, bench, foumain, sign, work of art, earthworks, or other man-made objects constituting a physical bettermem of real property, or any part of such betterment. 10. Infill: Descriptive of buildings that have been designed and built to replace missing structures or otherwise fill gaps in the streetscape. Infill architecture shall be compatible in such elemems as height, proportion, and materials. 11. Ordinary Maintenance or Repair: The process of conserving a site, building, structure or object over time to prevent deterioration as opposed to restoration or rehabilitation; may include inspection and planning as well as housekeeping, minor repairs, and paiming. 12. Preservation: The act or process of applying measures to sustain the existing form, imegrity, and material of a building or structure and the existing form and vegetative cover of a site. It may include initial stabilization work where necessary, as well as ongoing maintenance of the building materials and vegetation. 13. Primary Facade: The from wall of a building, or the wall in which the principal building emrance is located. 14. Public Right-of-Way: Any designated public street, sidewalk, or alley. 15. Rehabilitation: The act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features, which convey its historical, cultural, or architectural values. 16. Restoration: The act or process of accurately recovering the form, features and character of a property as it appeared at a particular period of time, which may involve the removal of later additions or alterations, or the replacement of missing features. Secreta~ of the Interior's Standards For Rehabilitation 1. A property shall be used for its historic purpose or be placed in a new use that requires minimal change to the defining characteristics of the building and its site and environment. 2. The historic character of a property shall be retained and preserved. The removal of historic materials or alteration of features and spaces that characterize a property shall be avoided. 3. Each property shall be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or architectural elements from other buildings, shall not be undertaken. 4. Most properties change over time; those changes that have acquired historic significance in their own right shall be retained and preserved. 5. Distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize a historic property shall be preserved. 6. Deteriorated historic features shall be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Replacement of missing features shall be substantiated by documentary, physical, or pictorial evidence. 7. Chemical or physical treatments, such as sandblasting, that cause damage to historic materials shall not be used. The surface cleaning of structures, if appropriate, shall be undertaken using the gentlest means possible. 8. Significant archeological resources affected by a project shall be protected and preserved. If such resources must be disturbed, mitigation measures shall be undertaken. 9. New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment. 10. New additions and adjacent or related new construction shall be undertaken in such a manner that if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired. 10 Prevalent architectural styles in the Bell Avenue Historic Conservation District Example of a Ranch Style House, 1815 Bell Growing out of the Modern style, but owing as much to the earlier Bungalow, Prairie and Cottage styles, is the much-maligned American Ranch Style home (1932 to present). The criticism usually comes from a generation that grew up in suburbs of ranch houses, but who is not yet distant enough in time to look objectively at the fifties styles. Although some say Ranch Style homes have no style at all, this is not true; there was a very conscious attempt to emphasize the horizontal and to create an open floor plan. Large ranch homes may sprawl 2000-3000 square feet with rooms and hallways flowing into one another, and sliding glass doors opening the interior of the house into the back patio. The formal dining room is more of an extension of the kitchen and living room than a separate room. The quality of construction in even modest fifties ranch houses is usually better than in houses from the 1970's. The floors are of oak even when covered with a carpet, the exterior is of solid brick rather than cheap composite siding, bathroom tile work is common. Ranch style houses have many of these features: · Single story · Low pitched gable roof · Deep-set eaves 11 · Horizontal, rambling layout: Long, narrow, and low to the ground · Rectangular, L-shaped, or U-shaped design · Asymmetrical · Large windows: double-hung, sliding, and picture · Sliding glass doors leading out to patio · Attached garage · Simple floor plans · Emphasis on openness (few interior walls) and efficient use of space · Built from natural materials: Oak floors, wood or brick exterior · Lack decorative detailing, aside from decorative shutters and porch-roof supports Example of a Bungalow, 2016 Bell The Craftsman Bungalow (1905-1930) is an all American housing style, but it has its spiritual roots in India. Native houses in the province of Bengal were called bangla or bangala. British colonists adapted these one-story thatch-roofed huts to use as summer homes. For their comfortable bangla, the British arranged dining rooms, bedrooms, kitchens, and bathrooms around central living rooms. This efficient floor plan became the prototype for America's Craftsman Bungalows. The first American house to be called a bungalow was designed in 1879 by William Gibbons Preston. Two California architects, Charles Sumner Greene and Henry Mather Greene, are often credited with inspiring America to build simple one-and-a-half story bungalows. Homes designed by the Greenes were publicized in magazines, and a flood of pattern books followed. 12 Architectural purists say that true Bungalows represent structural simplicity, efficient use of space, and understated style. Most of the living area is placed on the ground floor. Seventy-five years after Bungalows took America by storm, the style remains a popular favorite. These comfortable and elegant little houses are prevalent in the Bell Avenue area. Craftsman style bungalows usually have these features: Low-pitched roof Wide eaves with exposed roof rafters Decorative braces Porch with square columns One or one and a half stories Built-in cabinets, shelves, and seating Many Craftsman bungalows also have: · Stone chimneys · Gabled dormers · Sloping foundation Example of a Colonial Revival House, 1816 Bell Colonial Revival became a popular American house style after it appeared at the 1876 the US Centennial Exposition. Reflecting American patriotism and a desire for simplicity, the Colonial Revival house style remained popular until the mid-1950s. Between World War I and II, Colonial Revival was the most popular historic revival house style in the United States. Some architectural historians say that Colonial Revival is a Victorian style; others believe that the Colonial Revival style marked the end of the Victorian period in architecture. The Colonial Revival style is based loosely on Federal and Georgian house styles, and a 13 clear reaction against excessively elaborate Victorian Queen Anne architecture. Eventually, the simple, symmetrical Colonial Revival style became incorporated into the Foursquare and Bungalow house styles of the early 20th century. Colonial Revival houses have many of these features: · Symmetrical faCade · Rectangular · 2to 3 stories · Gable roof · Overhanging upper story · Pillars and columns · Multi-pane, double-hung windows with shutters · Dormers · Temple-like entrance: porticos topped by pediment · Paneled doors with sidelights and topped with rectangular transoms or fanlights · Center entry-hall floor plan · Entertaining rooms on first floor and bedrooms on upper floors · Fireplaces · Made of brick orwood · Simple, classical detailing Subtypes of the Colonial Revival House Style · Dutch Colonial Two-story house made of clapboard or shingles with a gambrel roof, flared eaves, and a side-entry floor plan. · Spanish Colonial Revival Low-pitched ceramic tile roof, stucco walls, eaves with little or no overhang, wrought iron, and windows and doorways with round arches. 14 Example of a Tudor style house, 2009 Bell The name Tudor suggests that these houses imitate English architecture from the early 16th century. However, most Tudor style homes were inspired by building techniques from an earlier time. Some Tudor houses mimic humble medieval cottages -- They may even include a false thatched roof. Other Tudor homes borrow ideas from late medieval palaces. They may have overlapping gables, parapets, and beautifully patterned brick or stonework. These historic details combine with Victorian or Craftsman flourishes. As in many Queen Anne and Stick style homes, Tudor style houses often feature striking decorative timbers. These timbers hint at -- but do not duplicate -- Medieval building techniques. In Medieval houses, the timber framing was integral with the structure. Modem Tudor houses, however, merely suggest the structural framework with false half- timbering. This decorative woodwork comes in many different designs, with stucco or patterned brick between the timbers. In the United States, Tudor styling takes on a variety of forms ranging from elaborate mansions to modest suburban homes with mock masonry veneers. The style became enormously popular in the 1920s and 1930s, and modified versions became fashionable in the 1970s and 1980s. Tudor style homes usually have these features: · Decorative half-timbering · Steeply pitched roof · Prominent cross gables · Tall, narrow windows · Small window panes · Massive chimneys, often topped with decorative chimney pots 15 ATTACHMENT 5 Planning and Zoning Commission Minutes, 1-12-2005 Con~rll~l~TM 23 [? ~2 J 2719 L~',>N~;] ~n~. 14 2 ~¢ ;aa ~rp,dL~l~ ~ ha~' now ;~iv~ 21 m~pons~, ~6 a~ P~c 46 22 P¢~gc 48 ;]is~C~ ~ttx~t, ~%,~kt l:~ I~.aplW m aa:¢~ any q~e~tic~*: y<m ~ight ~z~ f~,r 8 9 i2 14 [ 5 2] fJ~.~,; A~4 J~ I~ *b~~ ~sk,~. ~ ~,~ ~ !¢4, ~l~t ~mS in ~., 1~ wa~ o~iginMly a farn'~>u:;¢ on j23 PLANING AND ZONING MJ'~,YrES JANUARY 12. 2005 Page 45 * Page 48 6 i 3 J4 !7 ]g ~9 22 23 J ~3 5 ~7 ~0 Page 49 pm~bly f~lLar wi~ it ~:m'~k T~q~. aad hke I ~y, and s~zh a~ that, g~t aO~r t ~a;~' wh~t ~e get,pie ante:rea. So ] ~hi:d~ thai~a pro~B]? all, [ v~d q:o m dinqrf~t in ~na, We doMve a kd~io'ri~ di.s~Mct ~ OM HickorL We will have nd.~23orh~ pride with; district. We wilt ~;ave ~;~ ~ui~lit~s wi~h CNs da.cart, P%m 5O 1 8 9 17 23 Page; ~ m~ of m~o m~n~s. You h~ ~hal:, So ihat ~ okay bk D~rv~$. i:s u~ heal Ar~d Ani~n P~¢ 52 that Nk. l'Ird~my w.aa: ~alkbkg abouL TI~; arl~'r ~,¢~ of in ~_~ 1940~ And :hm'~ 96 ~cent of ~1,:: houses ~ivu b, ~ ~u~ b aborn 70 }mrs old ~ only ~i~a:f fl~re p~shi~g six ~mr.s, I':lr, just: il t]~re. WL w~H ~t ~ o'~d ~iL Ea,¥ra~ o~y, Tiffs: is a [939 9 I1 ~2 a6 ~? ~8 ~9 Davis, Ms, C~n, >x~'m ~m, And foLlO:~'bg Ms. C.c~wcn will I~ Jam~ Kbkpa~ik. m. rowan; ~y aau~ ~:~ ~t~.~e am kx~ ~a al~2~ B,~ and 1 ~ fl~l ~ I 1'~c wiE~ Jcssm Hmn~t~ in 1909 2O 2! 22 23 25 PLANNING AND ZO~G JA~ARY 12, 2005 Page 49 ~ Page 52 J 4 5 [3 16 ]7 19 20 21 25 24 MIL KI~KP ~I?RIC~ P~e 54I d~si:rkt, w~ $6fl ~t Hk~ w¢c¢ ia ~ n~i¢~N:,,~o,,M W~ a;~ w'itki~ nb~ 2L~ m 5~) 1~:~ Iku~t fbr ~spons~ aL'd I ~et ~hat ] d~dn"t mm m~ t~fo~a~ics~ your ¢~;ideratJ~;I ] app~a~ ~ ~h~., ~o~ wJ~'; ~ ~ak? O~y, Wmfld ye< 13 ~U~ b~k ~ Aaa I say, ~[I, :[%~ 1~ in c~m for { 5 ~u~ m'y ~o~'~ fe~ ta~k~ng Pab~ 56 2 cna~m~ ~% &~ ~a~ ~ls ol7 p~vpk who aec present who 6 l['ncx~ i~ ~ o~. cbs ~o ~p~k~ [ ~4)1 I !, d{~6 ~ 6~t cica? Okay, ~ is i~ Fa~%~, but did ~. wisk ~ 4 C~im~aa, I w~d ~ke {,~ move t7 sta~emea~ ~C I ~ a 25 ~i¢,~ I b,l~ h~ tl~ wom]ei~[ tim~ Of ¢.njc, ying IhJs PLANN NG AND ZO'~NG M{NUTES SALARY ! 2, 2005 Page 53- P~ge 56 3 a4 20 23 25 i [:2 [7 2; 22 Page 5 7 l 3 Pa~ 59 fu:v~ of iL And l Mve a cuup~ ~q~sfions ab~ the i4 a5 17 :2:1 24 Page 58 ,;;onm~rci~[ zon~a~, if this. ~ss~ an~ iL g~ ~o, Coun~l bac~:up and {i:m a{~.* Xir~ o~ ~lm~ you sam '~igbt ~ So 5~¢:'~? aobg ~> ¢;~b[,h ~i&lim and ? 8 9 !4 a? 19 2L 24 ~r~k had ~' don't v~sla~i~g any pm~-isian ~f O!is o~(lio~m~ sba!S be sum o;r ~ wot e~qi~r:8 PLANNING AND ZO~G S JANUARY 1.2, 2005 Page 57 - Page 60 ~n~ltTM 6 3 ~4 J? 19 22 ~4 Page 63 have ~ ~rm to do it, h~- am ~ B~¢~ ~. '~" bow a~e ~e Pag~ 62 ~ Hi~'~ie~l, L,nadma~k 8 nc:i¢'&orh~d, and e~U~l~Hy l[m n~gbN~s 9 n:.,~J,~? to f{~ Ills porc~ Dui, you kn~:~', ~,nd -~ha]~ b; Aad I !aw a ~:n~cra and ! !~ b~,, Suy¢kc -- ;~m~J)c~c un~l~ 3'~ .TZ..,A, ~he one ~flol ss>'~, ~,i~mlng 1 6 7 8 Page 64 about t~a~ L~ngu~ ,~ PLANNING AND ZONilqO $ SA~J'AR¥ [2, 2005 28 il t;2 i4 15 Page 6i -P~e 64 Cond~ltTM ? ~6 a d~ o~J~aaau:c~ ~,"~ b~ looked a; a~g: tim's And ]i~ ] say. Fm rl~is anmmi~ and it 1 ? il 21 2.4 25 P'~¢ 67 MR MART~N: '~'¢[L ] d~m~" q:,,fi~c ~.krs~and I~r~ M}o ~[d flit ~l:t ~ ~:d:L~icate ami say ]'m MS. Gt.r'}V~A: Tt~: ~eighbru~ c~)u[dfl ~t s;~y yc~u l:~ave to, paim: ~-~ bng~g¢ ~ M~e~ t~ ow[~ m~ue~s the ~ay~hkng widnou't a C~aificme of Appropriateness. ba,,~ to 80 th~,ugh !he C~*ti,~[,u of ApprOprria~c~em 1 2 9 9 10 12 [5 i? 2i 23 24 P~ 66, i~j~t n~,ds ~c be c~r iha~ no 1 4 5 ig 2O 2~ Page 68 this ordM.ancc stingy say Mit, ,N~RDN: iu,*1[ 'bake' 111.¢ wor~:~ "mahitain ~qu. Ded, R wiil, jus~: say ~hat any n~airs &~ne to thc N)u~ shall t~ tak~ l~a~ whole ~tc~ out abo,,l~ existing stm!l main~ain~? PLANING AN'D ZO~NG MINUTES JANUARY 12, 2005 Pa:ge 65 - Page 6,8 !? 24 Page 69 any r~arm Ia ¢~l~.nt worclg tl~ e~pai:rs t 2 3 4 6 ? 9 ]7 [9 ~3 5 6 ~0 Page: l~g~gg (m ~[4i~CcJ4Z. 4 read back_ 8 MS. GLOV~R: Any r~a~',rs m~]¢ t0 [m~y 9 22 25 PL.A~iNG AND ZONING SA~J^RY 12, 2005 Page 6'9 - Page 72 ATTACHMENT 6 Bell Avenue Historic Conservation District Proposed Guidelines I. Purpose of the Bell Avenue Historic Conservation District II. The purpose of these guidelines is to prevent the loss of the District's historic buildings, and to serve as a guide for rehabilitation of existing buildings, construction of new buildings, and additions and relocation of buildings so as to preserve the historic and cultural character and the visual identity of the District. The building(s) and District character is comprised of the sum of its form(s) and materials. The purpose of design review is to ensure that the overall integrity of the buildings and District is preserved. Design review will focus on front facades and sides because they are most important in preserving the integrity of the District. Design review will encourage the repair or maintenance of original material in all instances, whether restoration, renovation, relocation or addition. Material(s) used in new building is also important and should reflect District character. Additionally, the purpose of the District is to ensure the protection of trees and topography within the district and to preserve the building settings within the area. A vote on the historic overlay shall also include a vote on these guidelines. Upon adoption of the historic overlay in the District, these guidelines shall likewise be adopted and apply to all buildings and sites in the District. These guidelines serve as our District Preservation Plan. Upon enactment, all existing buildings in. the District will be adopted as they exist and remain subject to all applicable ordinances of the City of Denton. In addition, these guidelines and the Secretary of the Interior's Standards of Rehabilitation shall apply to an existing building in the District at such times as a change in materials, design, configuration or outward appearance, visible from a public right-of-way, is proposed or made. Upon adoption, these guidelines, all applicable ordinances of the City of Denton and the Secretary of Interior's Standards for Rehabilitation shall apply to all new construction, additions, relocations and demolition, both residential and commercial, in the District. Boundaries and Description iii. iV. · The district is located approximately 2 miles northeast of the historic Denton County Courthouse and less than one block north of Texas Women's University. (See Attachment 1 for map of area included) · The area is heavily treed, primarily with old growth oak and pecan trees, and the topography consists of both fiat and gently rolling terrain down the side streets. The district includes some architectural diversity due to its periodic residential development from 1910 - 1960. The most common building types present in the district are one to one and a half story cottages, bungalows and ranch houses. Notably, the bungalow is defined as a one to one and a half story house that is usually small. Few buildings in the District exceed one and a half story. The oldest structure in the district was built in 1878 and remodeled in 1927. Since the 191 Os, construction has been ongoing with the largest concentration in the 1940s. Few homes have been built in any given decade past the 1950s. (See Attachment 2 for building over decades) More than 50% of the buildings are over 50 years old and 100% is residential. Structures reflect the style and taste of the era in which they were constructed. Many have retained the original appearance and elements, thereby contributing to the historical character of the district. (See Attachment 3 and 4 for pictures of buildings and list of contributing properties ) Local designers and architects have played an influential role in the diversity of the district. (See Attachment 4 for listing of architect built houses) Definitions · Commission means the historic landmark commission authorized by the Historic Preservation and Historic Districts Ordinance. · District means the area encompassed in the Bell Area Historic Conservation District as established by and described in the Ordinance passed by the City. · Historic Preservation Officer or HPO is the City staff liaison for the Historic Landmark Commission. Applicability, conflicts with other provisions Other regulations applicable to the BAHCD as contained in any other section of this chapter or Code shall continue to apply to the district, except as specifically modified in this division. If any provision of this division conflicts with any other provision of this Code, the provisions of this division shall govern and control. go Where any provision, of this division modifies any provision of any other ordinance applicable to the district, the words used in this division shall have the meaning as defined in the provisions of the ordinance modified, unless the definition is otherwise provided for in this division. Certificate of Appropriateness It shall be unlawful for any person to do or allow or cause any other person to do any of the following acts on any property located within the Bell Area Historic Conservation District (BAHCD) without first applying for and receiving a certificate of appropriateness from the historic landmark commission: 1. Constructing a new building or making an addition to an existing o building; Reconstructing, altering, changing or restoring the exterior facade of any existing building; Placing or locating any building; o Remove or demolish any exterior architectural feature; Performing any act for which a certificate of appropriateness is required by this article; Constructing or erecting a fence, driveway, wall sign or other permanent improvement that is subject to regulation by this District. Any routine maintenance made within the district which would not require a. certificate of appropriateness by reason of it being considered routine shall be submitted to the HPO prior to the beginning of the work for its determination of whether the routine maintenance jeopardizes any character of the landmark or group of landmarks in the historic conservation district. 1. If the applicant is seeking a certificate of appropriateness to authorize only routine maintenance, the HPO shall review the application to determine whether the proposed work complies with the regulations contained in this section and all applicable ordinances and approve or deny the application within five (5) days of its receipt. 2. If no action is taken within five (5) working days a certificate of appropriateness is deemed approved. The applicant may appeal the HPO decision to deny by submitting to the HPO a written request for appeal within ten (10) days of the decision. The written request for appeal starts the standard certificate of appropriateness review procedure by the historic landmark commission. The requirements and procedures of section 35-219 under the Historic Landmark Preservation ordinance providing for application and issuance of certificates of appropriateness shall apply and be for any certificate of appropriateness required in this District for other exterior alterations. The only variance from section 35-219 relates to changes in color. Color changes on any architectural detail or structure shall refer to these design guidelines. VI. All buildings, structures sites, areas or lands located within the District are subject to these regulations. No person shall construct, alter, change, restore, remove or demolish in any way the exterior features of such building, structure or site, area or land until a permit has been granted by the building official of the city. Furthermore, no public improvemems, including but not limited to street construction, signs, lighting, sidewalk construction, parking facilities and traffic system changes, except traffic control signs and devices, shall be made within or affecting the District without approval of the city council after recommendation has been submitted by the historic landmark commission and appropriate city departmems. Architectural requirements - Existing Construction, Restoration/Renovation Restoration of existing structures is strongly encouraged. Degree of permanence and use of original materials shall be considered in the case of each repair, restoration, or renovation that impacts the front or side visible elevations. Permanent alterations should be kept to a minimum. Minimal additions and exterior alterations shall conform to the front elevation and shall reflect design elemems, proportions and materials already presem in the structure. Any augmentation of a design element or architectural detail shall blend with the from elevation and the nearby buildings in the manner they are used, applied or joined together. The two primary building materials used in the District are masonry and wood. Masonry includes brick, stone, terra cotta, concrete, tile, mortar and stucco. Materials should be the same as those present on the existing main structure. Aluminum or vinyl siding, fiberboard, artificial stone, artificial brick veneer and other similar materials shall not be imroduced on the from exterior of the building. Original materials shall be maimained, retained, repaired and/or reused when possible. When necessary, original materials shall be replaced with same or similar materials that convey the same visual appearance. Renovations, repair or replacement of areas away from the public facade shall be compatible with the character defining features and sympathetic to the existing structure. Total building(s) to lot size ratio shall be sympathetic to the majority of the surrounding properties and shall not exceed 25%. Building mass and scale shall be sympathetic to the majority of surrounding properties. Additions which impact the from elevation of the main building may be made if little room remains in the rear of the house for expansion or the building to lot ratio is equal or greater than 17%. Otherwise, the front elevation of the house should be maimained. Examples of allowable elevation changes include shed or gable dormers when compatible to the house and neighboring buildings. They shall not exceed the original roof-ridge line. Second story additions are permissible when building to lot ratio is equal or greater than 17% and no attic expansion space is available. All additions to a building or any accessory buildings which are visible from any public street other than an alley shall remain or be compatible with the dominant horizontal or vertical characteristics, scale, shape, roof form and be set 20 feet back from from elevation. Materials should match the main building. No building shall exceed two stories or 30' with an upper story addition. All additions should be made under the premise that the entire structure will remain sympathetic to the neighborhood in scale, site plan and architectural detail requirements. Roof form and material play an important role in character definition of buildings in this District. The existing form and the architectural features that give the roof its essential character shall be preserved. Distinctive features such. as chimneys and dormers shall be retained. Existing roof material shall be replaced with the same type of roofing materials or a previously used material. Skylights, solar panels or attic fans/turbines may be allowed if placed on a side or rear roof away from the from elevation view. All chimneys must be compatible with the style of the building. Chimneys must be constructed of brick, stucco, stone or other masonry material matching the texture and style of the main building. Paiming of any brick or stone surface is prohibited if it has not been previously painted. Efforts to restore painted brick or stone to unpainted condition are encouraged. In addition, fluorescent, luminescent, iridescent, opalescent, or like paint shall not be used to paint the exterior of any building in the District. Front entrances, porches and open patios are often primary focal points of District buildings and help define the style of the building. Therefore, enclosure is discouraged and shall be kept to a minimum. From porches under the primary roof may be enclosed provided the enclosure is easily removable, does not conceal or obscure any architectural features present in the front elevation, or restores the porch to an earlier appearance. Wooden or plastic decks shall not be constructed on the main facade of the primary building. Carpeting and turf are not permitted as a porch floor or step covering. Windows and doors contribute significantly to the overall character of a building. Original windows and doors shall be repaired, reused and/or retained when possible and shall be replaced only when necessary. Energy efficiency can be achieved by placing storm windows over original windows. All replacement windows shall be compatible with the character of the primary building. They shall match the existing opening, fit securely and maimain the proportions of the previous/original window or door or be a better reflection of the building characteristics. Metal, storm or other energy- efficiem windows and doors shall be pained. Sidelights must be compatible with the door. Shutters and awnings must be reflective of the style and period of the building and appear to be installed in a manner to perform their imended function. Security and omamemal bars are only permitted on the exterior of an accessory building, the rear faCade of the main building and the imerior of the building. Metal and corrugated awnings are permitted on accessory buildings or the rear facade of the main building if not visible from any public street. Other awnings must be typical of the existing or proposed structure and the character of the main building. Exterior lighting fixtures should be appropriate to the style and period of the main building and not obscure or conflict with significant architectural details of the building. Exterior lighting shall provide an even illumination level. Flood lights, bright, flashing, pulsating, glaring and similar lighting shall not be permitted. Exterior lighting shall highlight building elemems or other distinctive features rather than attract attention to the light fixture itself. Fences must be maintained in a vertical position, uphold the site line of the neighborhood and. be architecturally compatible with the primary and adjacem buildings. Existing stone and masonry retaining walls presem throughout the District shall be maintained. Permissible materials include, cast metal, wrought iron, wood, stone, brick, patterned concrete or stucco. If large expanses of fencing are visible, efforts to soften the impact with landscaping of shrubs, vines, trees or other foliage is encouraged. Garages and carports shall be maimained and preserved in condition and placemem on property. Restoration to original condition is encouraged (i.e. replacemem of porte de cochere). Alterations, additions, or replacemem shall maintain this orientation and remain subordinate to the primary and adjacent buildings in mass and scale. Materials shall be consistem with those of similar period buildings. All visible parking must be on existing driveways or designed and delineated additional parking areas. No parking shall be permitted in from landscaping (i.e. grass, gardens, under trees). Driveway and parking shall be subordinate to from landscaping. Circular drives and turnouts are permitted. Permeable driveway material is preferred, however, solid concrete or parallel paving, gravel or dirt/gravel mix is allowable for new or updated driveways. · Signs shall be developed with the overall context of the building and the area in mind. Design, materials used, size, proportion and placement shall reflect the character of the building style and the neighborhood quality of the area. Signs shall not obscure any architectural details, be placed higher than the first story, be flashing or animated, or cause any permanent damage to a visible facade. Monumem signs shall be permitted and shall be appropriately sized in relation to placement on the lot in proportion to the building. Satellite dishes less than. 3 feet in total size are permitted in the area. Placemem on the side or rear of the building only is allowed. Satellite dishes and radio towers shall not be visible from the from elevation. Radio and amennae towers cannot exceed the roof-line of the adjacem buildings. VII. Trees and Topography It is recommended that mature trees and shrubs, which are heavily prevalent in the neighborhood, continue in abundance and concentration. To maintain the character of the district, the number of trees with diameters in excess of 12 inches shall be preserved. It is recommended that mature trees be removed only if they are dead, diseased, interfere with the existing structure foundation, or intrude upon existing fencing or retaining walls. · No significant changes to the topography shall be allowed for the purpose of development or renovation. VIII. New Construction - New Construction or Relocations In addition to the above guidelines, the following design guidelines shall apply specifically to all new construction in the district. The overall rhythm established by the similar setbacks and spacing prevalem in the District shall be respected. Relocations and new construction of primary buildings shall have a setback within 10% of the average setback distance from the street of the existing buildings on the block. Likewise, spacing shall be within 10% of the average distance between existing buildings on the block. New construction shall orient its facade in the same direction as existing buildings on the block. Site oriemation for garages and storage buildings has historically been at the rear and to the side of the property lot lines. This configuration shall continue to be appropriate for new buildings in the district. Garage doors shall be setback at least 20 feet from the front elevation. New construction and relocations shall respect the scale and mass of existing adjacent buildings. No total building ratio shall exceed 25% of the lot size. Buildings should reflect the one to one and half-story make up of the neighborhood and shall not exceed 30 feet in height. The building design shall be compatible with the existing and surrounding buildings on the site or block and shall not detract from the character or appearance of the district. New building shall be distinguishable from the authentic historic styles present in the existing buildings and/or the district and shall not directly copy a period style. Creativity is encouraged. Elements of period design may be incorporated to ensure compatibility to the site or district. Materials remain significant in new building as well as those remodeled. The two primary building materials for new construction shall be masonry and wood. Masonry includes brick, stone, terra cotta, tile, mortar and stucco. Aluminum or vinyl siding, fiberboard, artificial stone, artificial brick veneer and other similar materials shall not be used on the exterior of new construction. Painting of any brick or stone surface shall be reflective of compatibility requirements only. In addition, fluorescent, luminescent, iridescent, opalescent, or like paint shall not be used to paint the exterior of any building in the District. In general, the roof pitch of historic buildings is an important and highly visible architectural feature. The character of roof types and pitches on buildings on the block and district shall be respected. Roof design, materials, textures and orientation of new building shall be consistent with existing buildings in the district. Roofing materials shall be visually compatible with those used on the block. Window patterns in terms of rhythm and ratio of walls to windows and doors shall relate to and blend with existing buildings on the block. The size and proportion (ratio of width to height) of window and door openings of the primary building shall be similar and compatible with those visible on the block. Windows and door styles shall blend with existing buildings on the block and be reflective of the style of new construction. Metal, storm and energy-efficient windows and doors shall be painted. IX. Commercial Construction and Rehabilitation of Existing Buildings In addition to all the above guideline, commercial buildings shall follow these specific guidelines. Commercial building or renovation for commercial purposes shall remain sensitive to the predominantly residential character of the district. Commercial presence in the District shall not detract from the neighborhood appearance of the block or district. Xo No additional thoroughfares shall be permitted or expanded to augmem commercial development or redevelopment within the residential portion of the district. All mechanical equipment, loading and service entrances, trash containers, energy systems, rooftop equipmem, utility connections and service boxes shall be oriemed in the rear or concealed in such a way to minimize the visual impact on the public right of way and adjacem properties. The residemial nature of the block shall be maimained despite additional needs for parking. New parking when necessary shall be located to the side or back of the building. Landscaping of parking is encouraged to maimain residemial character of the district. No historic building shall be demolished to provide areas for parking. Permeable material for parking areas is preferred. Imensity and glare produced by parking lighting shall not be obtrusive to the surrounding residemial buildings. Demolition When a building is demolished, it is gone forever. It cannot be exactly replicated. The demolition of a building that contributes historically or architecturally to the character of the district shall be avoided. Demolition shall not be permitted under the following circumstances: 1. The building proposed for demolition is historically significam or is of architectural or historic interest 2. The building contributes significantly to the historic character of the district and demolition would create a detrimemal view or adversely affect the existing buildings on the block 3. The building is of an old, unusual or uncommon design that could not be reproduced without great difficulty or expense 4. The demolition of the building would be detrimemal to the public interest 5. The proposed replacement would not have a positive visual effect or be compatible with existing buildings on the block and would not respect the district character and site orientation of the existing buildings on the block. Demolition shall be permitted is such demolition has been ordered by the appropriate departmem of the City of DeNon for reasons of public health and safety. Under consideration of the Landmark Commission, demolition can be allowed under the following conditions: XI. XII. 1. The demolition request is for a garage, addition or building that is not the primary building, the said accessory building does not contribute to the character of the district and whereby demolition of the accessory building will not adversely affect the primary facade 2. The demolition is for the purpose of returning (restoring) the structure to some previous historically documented state.. 3. The building has lost most of its original architectural integrity or does not preserve or contribute to the historic character of the district. Benign neglect shall be discouraged as a basis for demolition. 4. The primary building was built after 1965 and it detracts from the overall architectural character of the district and the replacement building will contribute more significantly to the architectural character of the block. New building shall follow new construction guidelines. Building Relocation Building relocation shall be minimized to preserve the architectural and site location of a structure. Relocation shall be allowed when no alternative remains for a building's preservation, integrity and structural soundness can be maintained, compatibility will be reflected in the new site, removal from original site does not create detrimental view or loss of integrity, and the proposed replacement on the original site will have a more positive visual impact. Any relocated building in the district shall be rehabilitated, repaired or remodeled in accordance with the applicable sections of these guidelines so as to preserve the original character of the building. All applicable guidelines, including site orientation of the block of the new location shall apply to such relocation and rehabilitation. Amendment of Guidelines Once adopted by the district, these guidelines shall not be amended, changed or revised in any manner without the affirmative vote of the 66-2/3 percent of the owners of land in the district. 10 ATTACHMENT 7 Staff Amended Bell Avenue Conservation District Guidelines Like Historic Districts, Conservation District status is a form of overlay zoning which adds a level of protection to selected neighborhoods. These guidelines will help to ensure sensible and harmonious design in terms of massing, fenestration and scale for cases involving new construction or developments that include infill construction within established neighborhoods. In terms of proposed exterior rehabilitation or maintenance of existing structures, the guidelines will provide property owners with solutions that respect the traditional design and intention of the built and natural environments. In addition to these guidelines, development is also subject to the requirements in the Denton Development Code as they relate to building height, lot size, setbacks and parking. The Bell Avenue Conservation District consists of the area facing Bell Avenue between University Drive (Highway 380) and Sherman Drive (FM 428). The purpose of these guidelines is to prevent the loss of the District's historic buildings, and to serve as a guide for rehabilitation of existing buildings, construction of new buildings, and additions and relocation of buildings so as to preserve the historic and cultural character and the visual identity of the District. EXISTING BUILDINGS/STREETSCAPES Faqade Treatments Conservation Districts seek to preserve the faCade(s) of existing structures visible from the public right of way or street. The crucial aspects involve the appearance of the faCade(s) and the fenestration (e.g., placement of openings) of windows, doors and related trim. 1) Materials a) Original Materials 1) Brick or stone that was originally unpainted should remain so, since irreversible damage can result from attempts to remove paint by methods such as sandblasting. Painting or covering original brick or stone is discouraged. 2) Retain significant character defining wooden or metal faCade elements. Examples include cornice brackets, gingerbread, decorative trim elements, ornamental barge/fascia board, and soffit. b) Maimenance 1) The United States Department of the Imerior's publication, Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings indicates that light detergems and water are the only acceptable methods for cleaning masonry. However, certain chemical stripping agents are safe to use on masonry surfaces within controlled environments, and are acceptable to use. Upon request, the Texas Historic Commission (512-463-6092) or the City of DeNon Preservation Officer (940-349-8529) can provide details as to these cleaning agents. 2) Sandblasting and other methods that utilize harsh abrasives/chemicals, or contents under high pressure are not permitted. 3) When repoiming masonry, every effort must be made to duplicate the original strength and color of the original mortar, so as not to damage the brick or stone face due to spalling and to help the repair blend in with the original work. 2) Roofs a) Existing roofs that are visible from the public right of way should retain their profile as it relates to shape and slope. Appropriate roof treatments in Conservation Districts include dimensional shingles, real or synthetic slate shingles or standing seam metal. b) Historic systems that are imegral to the roof, such as flashing, and leader/conductor boxes, built-in gutters, downspouts or snow guards, should be retained and maintained on a regular basis, as these types of systems often were crafted of heavy gauge, resiliem materials such as copper or zinc and generally outperform modem materials, as well as retain a patina and contribute to the appearance of the structure. c) Buildings that incorporate a sloped roof, such as a gable and/or hipped roof, often feature decorative elements that should be retained, including but not limited to, roof cresting, ridge caps and finials. 3) Doors a) Replacement doors should be sized to fit in the existing opening. The opening should not be altered so as to accept either a smaller door (e.g., filling in excess space with material such as lumber, bricks or cement blocks) or to facilitate a larger door or doors (e.g., knocking out part of the surrounding wall and reframing the opening). 4) Windows a) Window openings should not be altered to accommodate replacement windows (e.g., "blocking down" or "blocking in" the opening). b) Replacement windows should relate to and be appropriate for the age and architectural style of the structure. c) In situations where original windows remain, every effort should be made to repair such windows, rather than replace them outright. d) Certificate of Appropriateness review will be required for any window repair or change due to code and safety regulations. 5) Porches a) Character defining details, such as decorative wooden or metal trim, turned wooden or cast iron columns, sections of the balustrade (e.g., spindles, newel posts and hand/top railings), and skirting should be retained. Every effort should be made to repair damaged portions of original materials. b) Porch roofs and their original character defining features, such as shed roofs commonly found on rowhouses or gabled roofs specified on semi-detached twins or detached homes, should be retained. c) Original porch flooring or ceiling materials, such as tongue and groove planks, also known as center matched strip flooring (also used as a ceiling material), should be preserved and retained wherever possible, or replaced in kind. Building Materials, Proportion and Profile Materials to be used for repairs to, or new additions to, existing buildings should harmonize with existing materials. Appropriate wall materials shall include, but not be limited to, brick, stone, stucco, natural wood or cementious siding. Any side, front or rear addition that is visible from the primary street, and which increases the footprint of the main building, would be reviewed. 1) Roofs: a) For new construction, the principal roofline should be consistent with the adjacent streetscape. b) New additions must respect the existing building's roof profile and, if visible from the primary street, be in harmony with it in terms of form, texture and color. c) Appropriate roofing materials, when visible from the public right of way, should consist of dimensional shingles, real or artificial slate, wooden shakes or standing seam metal. 2) Doors: a) For new construction, principal facades facing the street shall contain an entry door. 1) For corner properties, either fagade facing the street can qualify as 'primary,' and thus be eligible for placement of the entry door. 3) Porches: a) Residential new construction should incorporate a front or side porch, if a porch exists on the immediately adjacent properties within the block face. 4) PaiN: a) Certain colors prohibited Fluorescem, metallic colors are not permitted on the exterior of any structure in the district 5) Windows: a) Primary windows should be harmonious with adjacem properties and generally reflect vertical proportions (e.g., taller than they are wide). Accessory or ornamemal windows such as gable windows, sidelights and transom windows are allowed. 6) Utilities: a) Utilities, such as gas and electric meters, should not be placed on or along the primary faCade of new residemial or commercial structures, when possible. b) Where visibility of utilities is an issue, they should be: 1) pained so as to blend imo the background. 2) screened with vegetation so as to minimize the impact on the facade. 3) placed at or near ground level. c) HVAC equipmem should be placed on or along the rear facade or rear half of secondary facades and be screened from view by vegetation or fencing as referenced below. d) Cable and satellite television accessories, such as dishes and amennae, should be located on the rear half of the side facades or rear half of the roof, out of plain view where possible. 7) Fencing: a) All matters regarding fencing to be located in the from yard, or from and side yards of a corner property, shall fall under the jurisdiction of the amended portion of Section 35.13.9 of the City of Demon Developmem Code 8) Topography: a) The site for new construction which is within view of the public right of way shall be in harmony with existing topographical features typical of the neighborhood. REVIEW PROCESS All exterior changes require a Certificate of Appropriateness (CEA) prior to beginning work. The CeA should be filed with the Historic Preservation Officer (HPe). All existing timelines will be followed. Things that require a CeA include: 1. Constructing a new building or making an addition to an existing building 2. Reconstructing, altering changing or restoring the exterior faCade of an existing building 3. Placing or relocating a building 4. Removing or demolishing exterior architectural features 5. Constructing, repairing or erecting a permanent improvement (fence, driveway, etc.) Any ordinary maimenance or repair shall be submitted on a CeA to the HPe prior to the beginning of the work to determine whether the work jeopardizes the character of the building or district. Examples of routine maimenance would include: 1. Paint 2. Repairing the structure using like materials (wood with new wood, composition shingles with new composition shingles, etc.) 3. Replacing windows or doors with like materials of the same size If the HPe determines that the work should be reviewed by the HLC, they will place it on the next agenda and notify the applicant of the time and date of the public hearing. If the HLC denies the CeA, the applicant may appeal their decision to the DeNon City Council. DEFINITIONS 1. Addition: A construction project physically connected to the exterior of building. 2. Alteration: Any change affecting the exterior appearance of an existing improvement by additions, reconstruction, remodeling, or maintenance involving changes in form, texture, or materials. 3. COA: Certificate of Appropriateness; a form which must be filled out and turned in to the Historic Preservation Officer prior to beginning exterior work on a structure. 4. Demolition: The act or process of wrecking, destroying, or removing any building or any part thereof. Demolition includes, but is not limited to, the removal of a building from its site, or the removal or destruction of a faCade or surface. 5. Design Guidelines: Written criteria, supplemented by graphic illustrations as appropriate, illustrating architectural considerations, which will affect the graining of building permits within the urban conservation district. 6. Facade: Any of the exterior faces ora building. 7. HLC: The City of Demon Historic Landmark Commission. 8. HPO: The City of Demon Historic Preservation Officer. 9. Improvement: Any building, structure, fence, gate, wall, walkway, parking facility, light fixture, bench, foumain, sign, work of art, earthworks, or other man-made objects constituting a physical bettermem of real property, or any part of such betterment. 10. Infill: Descriptive of buildings that have been designed and built to replace missing structures or otherwise fill gaps in the streetscape. Infill architecture shall be compatible in such elemems as height, proportion, and materials. 11. Ordinary Maintenance or Repair: The process of conserving a site, building, structure or object over time to prevent deterioration as opposed to restoration or rehabilitation; may include inspection and planning as well as housekeeping, minor repairs, and paiming. 12. Preservation: The act or process of applying measures to sustain the existing form, imegrity, and material of a building or structure and the existing form and vegetative cover of a site. It may include initial stabilization work where necessary, as well as ongoing maintenance of the building materials and vegetation. 13. Primary Facade: The from wall of a building, or the wall in which the principal building emrance is located. 14. Public Right-of-Way: Any designated public street, sidewalk, or alley. 15. Rehabilitation: The act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features, which convey its historical, cultural, or architectural values. 16. Restoration: The act or process of accurately recovering the form, features and character of a property as it appeared at a particular period of time, which may involve the removal of later additions or alterations, or the replacement of missing features. Secreta~ of the Interior's Standards For Rehabilitation 1. A property shall be used for its historic purpose or be placed in a new use that requires minimal change to the defining characteristics of the building and its site and environment. 2. The historic character of a property shall be retained and preserved. The removal of historic materials or alteration of features and spaces that characterize a property shall be avoided. 3. Each property shall be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or architectural elements from other buildings, shall not be undertaken. 4. Most properties change over time; those changes that have acquired historic significance in their own right shall be retained and preserved. 5. Distinctive features, finishes, and construction techniques or examples of craftsmanship that characterize a historic property shall be preserved. 6. Deteriorated historic features shall be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, color, texture, and other visual qualities and, where possible, materials. Replacement of missing features shall be substantiated by documentary, physical, or pictorial evidence. 7. Chemical or physical treatments, such as sandblasting, that cause damage to historic materials shall not be used. The surface cleaning of structures, if appropriate, shall be undertaken using the gentlest means possible. 8. Significant archeological resources affected by a project shall be protected and preserved. If such resources must be disturbed, mitigation measures shall be undertaken. 9. New additions, exterior alterations, or related new construction shall not destroy historic materials that characterize the property. The new work shall be differentiated from the old and shall be compatible with the massing, size, scale, and architectural features to protect the historic integrity of the property and its environment. 10. New additions and adjacent or related new construction shall be undertaken in such a manner that if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired. Prevalent architectural styles in the Bell Avenue Historic Conservation District Example of a Ranch Style House, 1815 Bell Growing out of the Modern style, but owing as much to the earlier Bungalow, Prairie and Cottage styles, is the much-maligned American Ranch Style home (1932 to present). The criticism usually comes from a generation that grew up in suburbs of ranch houses, but who is not yet distant enough in time to look objectively at the fifties styles. Although some say Ranch Style homes have no style at all, this is not true; there was a very conscious attempt to emphasize the horizontal and to create an open floor plan. Large ranch homes may sprawl 2000-3000 square feet with rooms and hallways flowing into one another, and sliding glass doors opening the interior of the house into the back patio. The formal dining room is more of an extension of the kitchen and living room than a separate room. 10 The quality of construction in even modest fifties ranch houses is usually better than in houses from the 1970's. The floors are of oak even when covered with a carpet, the exterior is of solid brick rather than cheap composite siding, bathroom tile work is common. Ranch style houses have many of these features: · Single story · Low pitched gable roof · Deep-set eaves · Horizontal, rambling layout: Long, narrow, and low to the ground · Rectangular, L-shaped, or U-shaped design · Asymmetrical · Large windows: double-hung, sliding, and picture · Sliding glass doors leading out to patio · Attached garage · Simple floor plans · Emphasis on openness (few interior walls) and efficient use of space · Built from natural materials: Oak floors, wood or brick exterior · Lack decorative detailing, aside from decorative shutters and porch-roof supports Example of a Bungalow, 2016 Bell The Craftsman Bungalow (1905-1930) is an all American housing style, but it has its spiritual roots in India. Native houses in the province of Bengal were called bangla or bangala. British colonists adapted these one-story thatch-roofed huts to use as summer homes. For their comfortable bangla, the British arranged dining rooms, bedrooms, 11 kitchens, and bathrooms around central living rooms. This efficient floor plan became the prototype for America's Craftsman Bungalows. The first American house to be called a bungalow was designed in 1879 by William Gibbons Preston. Two California architects, Charles Sumner Greene and Henry Mather Greene, are often credited with inspiring America to build simple one-and-a-half story bungalows. Homes designed by the Greenes were publicized in magazines, and a flood of pattern books followed. Architectural purists say that true Bungalows represent structural simplicity, efficient use of space, and understated style. Most of the living area is placed on the ground floor. Seventy-five years after Bungalows took America by storm, the style remains a popular favorite. These comfortable and elegant little houses are prevalent in the Bell Avenue area. Craftsman style bungalows usually have these features: Low-pitched roof Wide eaves with exposed roof rafters Decorative braces Porch with square columns One or one and a half stories Built-in cabinets, shelves, and seating Many Craftsman bungalows also have: · Stone chimneys · Gabled dormers · Sloping foundation Example of a Colonial Revival House, 1816 Bell 12 Colonial Revival became a popular American house style after it appeared at the 1876 the US Centennial Exposition. Reflecting American patriotism and a desire for simplicity, the Colonial Revival house style remained popular until the mid-1950s. Between World War I and II, Colonial Revival was the most popular historic revival house style in the United States. Some architectural historians say that Colonial Revival is a Victorian style; others believe that the Colonial Revival style marked the end of the Victorian period in architecture. The Colonial Revival style is based loosely on Federal and Georgian house styles, and a clear reaction against excessively elaborate Victorian Queen Anne architecture. Eventually, the simple, symmetrical Colonial Revival style became incorporated into the Foursquare and Bungalow house styles of the early 20th century. Colonial Revival houses have many of these features: · Symmetrical faCade · Rectangular · 2to 3 stories · Gable roof · Overhanging upper story · Pillars and columns · Multi-pane, double-hung windows with shutters · Dormers · Temple-like entrance: porticos topped by pediment · Paneled doors with sidelights and topped with rectangular transoms or fanlights · Center entry-hall floor plan · Entertaining rooms on first floor and bedrooms on upper floors · Fireplaces · Made of brick orwood · Simple, classical detailing Subtypes of the Colonial Revival House Style · Dutch Colonial Two-story house made of clapboard or shingles with a gambrel roof, flared eaves, and a side-entry floor plan. · Spanish Colonial Revival Low-pitched ceramic tile roof, stucco walls, eaves with little or no overhang, wrought iron, and windows and doorways with round arches. 13 Example of a Tudor style house, 2009 Bell The name Tudor suggests that these houses imitate English architecture from the early 16th century. However, most Tudor style homes were inspired by building techniques from an earlier time. Some Tudor houses mimic humble medieval cottages -- They may even include a false thatched roof. Other Tudor homes borrow ideas from late medieval palaces. They may have overlapping gables, parapets, and beautifully patterned brick or stonework. These historic details combine with Victorian or Craftsman flourishes. As in many Queen Anne and Stick stylele homes, Tudor style houses often feature striking decorative timbers. These timbers hint at -- but do not duplicate -- Medieval building techniques. In Medieval houses, the timber framing was integral with the structure. Modem Tudor houses, however, merely suggest the structural framework with false half- timbering. This decorative woodwork comes in many different designs, with stucco or patterned brick between the timbers. In the United States, Tudor styling takes on a variety of forms ranging from elaborate mansions to modest suburban homes with mock masonry veneers. The style became enormously popular in the 1920s and 1930s, and modified versions became fashionable in the 1970s and 1980s. Tudor style homes usually have these features: · Decorative half-timbering · Steeply pitched roof · Prominent cross gables · Tall, narrow windows · Small window panes · Massive chimneys, often topped with decorative chimney pots 14 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT: DCA05-0001 (Convenience Sales) Hold a public hearing and consider an ordinance to amend the DeNon Developmem Code related to retail, drive-through and restaurant uses associated with quick vehicle servicing in the industrial Cemer Employmem (lC-E), industrial Cemer General (lC-G) and Employmem Cemers industrial (EC-i) zoning districts. The Planning and Zoning Commission recommends approval (5-1). BACKGROUND: Applicam: City of DeNon, DeNon TX Retail Sales and Services, Restauram or Private Clubs and Drive-through Facility uses are not allowed in the industrial Cemer Employmem (lC-E), industrial Cemer General (lC-G) and Employmem Cemers industrial (EC-i) zoning districts. The table for EC-1 (page 5-32) lists Restaurant, Private Clubs and Drive Through Facilities as permitted in EC-1. The proposed amendments would allow those uses through a new limitation proposed in association with the Quick Vehicle Servicing use. Staff is proposing changes to these districts in response to public comments received for the December 15, 2004 Quarterly Review of the Developmem Code. Mike Carey, QuikTrip Corporation (Attachmem 2), raised the issue of retail uses not being permitted in the lC-E, iC-G and EC-i zoning districts although the Denton Plan states that both Industrial and Employment Cemers should support convenience shopping (page 50). PRIOR ACTION/REVIEW (Council, Boards, Commissions) Dec. 15, 2004 - Quarterly Review of the Development Code Jan. 25, 2005 - Planning and Zoning Commission Work Session Feb. 9, 2005 - Planning and Zoning Commission Work Session Feb. 9, 2005 - Planning and Zoning Commission Public Hearing FISCAL INFORMATION None available. OPTIONS 1. Approve as submitted. 2. Approve with conditions 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning conditions (Attachment 1) Commission recommends approval (5-1, Strange opposed) with ATTACHMENTS 1. Staff Analysis 2. Correspondence 3. February 9, 2005 P&Z minutes 4. Draft Ordinance Prepared by: ~: Reic ~:~rt, ASLfA, AI~ 4[ssistant Director of Planning and Development Respectfully submitted: Kelly Carpenter, AICt/ Director of Planning and Development 2 Attachment 1 STAFF ANALYSIS: Retail Sale and Services, Restaurant or Private Clubs and Drive-through Facility uses are currently limited or not allowed in the Industrial Center Employment (lC-E), Industrial Center General (lC-G) and Employment Centers Industrial (EC-I) zoning districts. Quick Vehicle Servicing (Gas Stations) is permitted in those districts. Restaurant or Private Club P P L(14) N Drive-through Facility P P N N ~J~ ~J~!~ ~J~J~ P L(14) = Uses are limited to no more than l 0,000 square feet of gross floor area. Quick Vehicle Servicing is defined as: A business providing service to the motoring public. Such uses can include gasoline sales, light repair, tune-ups, oil changes, transmission or drive train repairs to automobiles or light trucks. No outside storage of any automobiles or materials such as tires, auto parts, etc., is allowable. The sale of motor vehicles shall be prohibited. The Denton Plan states: "The role of commercial activity in the city is to provide convenient and available retail services, and office opportunities to residents of the Denton market area." (page 41) The Denton Plan further states that Industrial Centers should accommodate complementary uses such as convenience shopping and Employment Centers are also intended to accommodate secondary uses such as restaurants and convenience shopping. (page 50) As stated above, gas stations are currently permitted in the EC-I, IC-E and IC-C zoning district. Gas Stations are no longer "just" a place to refuel or for minor automotive repairs. Most, if not all, new gas stations offer a wide variety of services including, convenience shopping and restaurant or food services. Recent convenient stores, in Denton, have been between 1,275 sq. ft. and 4,570 sq. ft. Given the trend of new gas stations and the intent of the Denton Plan, staff believes that the Development Code should be amended to allow retail, restaurant and drive- through for restaurants when those uses are in association with quick vehicle servicing. In order to maintain the complementary use of a restaurant, the size should be limited. Staff Recommendation: 1. Amend Sub-Chapter 5 of the Development Code to include the following L18 and L(22) limitations: L(18) = L(22): Uses are limited to no more than 5,000 square feet of gross floor area and only in association with Gas Stations. Limited to no more than 50 seats and only in association with Gas Stations. 2. Amend Use Table in Sub-Chapter 5 of the Development Code be amended as follows: Retail Sales and Service P L(18)N L(18)N L(18)N Restaurant or Private Club P P L(14) L(22)N Drive-through Facility P P L(14)N L(14)N Quick Vehicle Servicing P P P P Amend Sub-Chapter 23 (Definitions) to include: Gas Stations: A facility limited to retail sales to the public of gasoline, motor oil, automobile lubricants, motor fuels, travel aids, and minor automobile accessories. The Planning and Zoning Commission recommends approval with the following amendments: 1. Amend Sub-Chapter 5 of the Development Code to include the following L18 and L(22) limitations: L(18) = Uses are permitted only in association with Gas Stations and are limited to no more than 5,000 square feet of gross floor area except adjacent to 1-35 then uses are limited to 10,000 square feet of gross floor area. L(22) = Uses are permitted only in association with Gas Stations and are limited to no more than 50 25 seats except adjacent to 1-35 then the number of seats is limited to 50. Additionally, staff believes that the definition of Gas Stations should be revised (as noted below). The words "limited to" are too restrictive and might imply that other permitted retail uses would have to be located in a different building. Gas Stations: A facility that provides limited to retail sales to the public of gasoline, motor oil, automobile lubricants, motor fuels, travel aids, and minor automobile accessories. The Draft Ordinance (Attachment 4) contains the amendments as recommended by the Planning and Zoning Commission and staff. 4 Attachment 2 E-mail received 12/07/04 Larry: It is our understanding that the Denton Development Code is up for its quarterly review starting next week with the work session of the Commission. As such, we respectfully request that you consider the following: Retail Sales and Services are not allowed uses in the Industrial Center- Employment Districts; however, the land use designation as described in The Denton Plan for Industrial Centers support uses such as convenience shopping. In other words, retail uses are supported via the comprehensive plan but are not allowed in accordance with the zoning ordinance. Understandably so, certain retail uses probably should not be allowed in certain areas of Industrial districts. However, limitations of retail uses of 10,000 square feet or less and if located at the intersection of a primary arterial and Interstate Highway is probably desirable as they are considered "complimentary and supporting uses" under The Denton Plan. Please let us know if this will be considered at next week's work session of the Planning and Zoning Commission. Thank you for your consideration. IVlike Carey QuikTrip Corporation 14450 Trinity Blvd., Ste. 300 Ft. Worth, TX 76155 (817) 358-7695 office (817) 821-8630 mobile (817) 858-0213 fax mcarey@quiktrip.com The information in this e-mail is confidential and may be legally privileged. It is intended solely for the addressee. Access to this e-mail by anyone else is unauthorized. If you are not the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing or copying is strictly prohibited. If you receive this e-mail in error, please immediately notify the sender via reply e-mail and delete this communication. QuikTrip Corporation CondcnscltTM 1 2 3 4 5 6 7 8 9 10 11 12 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 77 COMMISSIONER STRANGE: MOVe OB. tO Item No. 7B, which is an amenchnent to the Denton Development Code relating to retail drive-lb_rough and restaurant uses associated with quick vehicle servicing in the industrial center mnployment, industrial center general, and employment centers industrial zoning districts. Mr. Rcichhart. MR. REICHHART: Thank you. This is a follow-up of our Work Session item that we had two weeks ago. I did notice on our staff report, we were thinking this back for another work session, but, obviously, we didn't do that. You can see our reconunendation is to amend Subchapter 5 to allow commercial sales associated with quick vehicle servicing specifically gas stations in the icE, and ICe and ECl zoning districts. The one caveat and I'm embarrassed to say where we said the uses are limited to no more than 5,000 square feet for the commercial uses, I failed to go back and read the applicant's letter that started this whole thing and they're proposing a 10,000 square foot commercial associated with a gas station. What I'd like to do is amend that to say uses are limited to no more than 5,000 square feet unless the lot is adjacent to tile interstate and then that use could be expanded to 10,000 square feet. We feel that if Page 78 you have a gas station, a larger convenient store right adjacent to the interstate, that's typically where you'll see the little bit bigger ones, but then as you get into the industrial areas, they should decrease in size, if tbat nlakes sense. COMMISSIONER STRANGE: Mr. Roy, COMMISSIONER ROY: DO we have any example? I'm trying to think about what 10,000 square feet looks like. That seems like a pretty good sized restaurant. MR. REICHHART: It iS. It's -- I think some of the Quik Trips have been about ahnost 5,000 square feet, so it would be doubling the size of what you would see on 380, you know, the one next to the Home Depot. I don't recall what size that is or down on Eagle, you know, the newer gas stations, it would be twice that size. COMMISSIONER ROY: That's very large. MR, REICHHART: It iS -- well, I mean, the intended use it to have a larger facility adjacent to the interstate. That's what facililated this whole discussion is on 380 right next to 1-35, they're looking at a site that's one of the industrial zoning districts. I can't remmnber which one, quite honestly, which allows the gas station again, but not any conuI~ercial uses associated with the gas station. So being more of a next to the Interstate, having a little bit bigger facility, it somns 1 2 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PLANNING AND ZONING MINUTES FEBRUARY Page 79 to make sense to staff. COMMISSIONER STRANGE: MS. Carpenter. MS. CARPENTER: Mr. Re[chhart, then is the limitation only along 1-35, the 10,000 square feet? MR. REICFIHART: Yes. MS. CARPEmER: specifically? MR. REICHHART: specifically we would say adjacent to Interstate 35. It's not Loop 288. It's not University. It's specifically adjacent to 1-35 and in the zoning districts. And there's a lot of intersections where you wouId have one of these. I mcan, wc are somewlmt limiting it to the major intersections. COMMISSIONER STRANGE: And to clarity the size Of the entire building is 10~000 feet, not the -- or is thc use of thc space 10,000 feet? MR. REICHHART: well, it's gross floor area, so it would be the use -- typically, it's tile building. I mean, I would calculate it as the building unless you -- MR. SNYDER: The point is the way it's worded, it says could you have more than one use, two uses and then you'd have 20,000. MR. REICHHART: we'll limit ii -- we'll change the wording to no more than a 10,000 square foot building insmad of the use. Page 80 COMMISSIONER STRANGE: Gross area. MR. REICHHART: Thafs very easy to do~ I mean, because you could have a restaurant because we talked about the restaurants. We were talking about the restaurant use, the colmncrcial use, everything within 10,000 square feet, adjacent, otherwise, it's 5,000 square COMMISSIONER STI'L6.NOE: Mr. Roy. COMMISSIONER ROY: NOW, we're talking 1-35E and 1-35W, I guess. MR, REICHHART: That's correct. COMMISSIONER STRANGE: Dr. Thibodeaux. MR. RE[CHHART: But the only place there's industrial zoning is really 1-35W, I guess it is. It's over by Univesity, Loop 288. COMMISSIONER THIBODEAUX: That ahnost answered my question, but the person that sthuulated this discussion didn't have any specific location in mind. MR. REICHHART: They're looking at -- it's on University adjacent to 1-35. It would be the northwest comer -- southwest, I'm sorry, yeah, southwest. You know where the Rayzor property is? COMMISSIONER THIBODEAUX: Yes. MR. REICHHART: It's on the other side of the interstate from that which is also, I believe, Rayzor 9,2005 Page 77 - Page 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2o 21 22 23 24 25 CondcnscItTM Page 81 property. COMMISSIONER STRANGE: Mrs. Holt. COMMISSIONER HOLT: Yes. I wanted to ask about the limit of 50 seats. I thought the object of these little restaurants were to run in, grab your food and get back on the highway and not a single stop restam'ant, like I'm going to the service station. And it seems like that's an awful lot of seating, and that would just encourage that. MR. RE~CHH~gX: well, I think the majority of the users do that and eat in their car, but I know on long trips, I'd rather get out and stretch my legs and sit down and eat and then get up and go again. So, I mcan, again, that number was created from half of what we do for -- in the neighborhood centers, which is 100 seats. And that's simply where that nmnber came from. COMMISSIONER HOLT: which ones am 100 seats possibly. MR. REICHHART: In the NRMU zoning districts. COMMISSIONER HOLT: I mean, can you give me wtmt -- something in town that's I00 seats? MR. RE[CHHART: There are -- the Applebee's may be very close to 100 scats. Applcbce's are typically smalIer than Chili's and I believe - Page 82 COMMISSIONER HOLT: IS there anything that's 50 scats. MR. REICHHART: I bet, you know, maybe like a Taco Bueno or nmybe some of the Wendy's might be around 50 seats. Chic-filet or I'm not sure of the name of it, but, you know, I think more -- some of the fast food type restaurants axe in the 50 scat range. COMMISSIONER HOLT: Well, that's what I'm asking. Is this what we're trying -- to put in a ~estam'ant here? I mean, that's basically what we're doing. We're putting in a little restaurant in these Quick Stops or are they going to be quick stops where you quickly stop or are ttxey going to be places you get gas and eat dinner? I mean, tliose are two different things to me. It doesn't -- a Quick Stop is quick in and out whe~cas a restaurant in there with 50 seats makes you want to sit there and eat. And I don't if that's -- I can see out on the highway on 35, I have no problem with that. But back in town, I kind of do. COMMISSIONER STRANGE: tsn't the only place we're going to have these is on 1-357 MR. REICHHART: I'm sorry? I was looking at that. COMMISSIONER STRANGE: Isn't tile restriction on it is on 35, but the general category -- 1 2 3 4 5 6 7 8 9 10 11 12 :13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 .13 14 15 16 17 18 19 20 21 22 23 24 25 Page 83 MR. REICHHART: We can add the -- I mean, the limitation on the size of the restaurant, we can add that 50 seat to 1-35, too. And as you get into outside from that, you can still have the convenience sa[es and walk in and get, you know, a donut and that -- COMMISSIONER HOLT: well, you know, if they had ten seats. MR. REICHHART: --and they wouldn't have any seats. Typically, you know, most convenient stores don't have seats. COMMISSIONER HOLT: Right. MR. REICHHART: SO tO limit it adjacent to 1-35 would be appropriate, too. It goes with the size issue. And that -- I mean, I think that's probably a good solution to limit it adjacent to 1-35. COMMISSIONER HOLT: I would like to sec thc 50 seats on 1-35 and then limit it to 10 to 15 inside the City. MR. REICHHART: Adjacent to 1-35. COMMISSIONER STRANGE: Mrs. Carpenter. MS. CARPENTER: This was where I was going with my discussion so I don't have anything else to add. COMMISSIONER STRANGE: Okay. Ms. Holt, are you finished? COMMISSIONER HOLT: I'nl finished. Thank Page 84 you. COMMISSIONER STRANGE: Anyone else have any -- Mr. Roy. COMMISSIONER ROY: I'm trying to understand the area of concern here. And just coming up with a number of ten off the top of om' head, I wonder if this is something you need to think more about or maybe ten is fine. And if it needs to be changed later, we can do it again, but I'm laying to -- what is the main concern? Fm trying to figure out. MR. REICHHART: ^ga[n, it was raised at a -- the quarterly review that within these districts you can have a gas station, but you can't have a convenience -- the retail sales were not allowed. COMMISSIONER ROY: NO. Excuse me. I'm trying to understand -- MR. REICHHART: But the 10,000 square foot came from the applicant's original request is what they are looking to do. COMMISSIONER ROY: rm trying to understand Coimnissioner Holt's point, the concern that she has. I'm struggling to understand why we're concerned about the number of seats, so maybe you can help me. COMMISSIONER HOLT: Maybe it's just me. I just think we're -- if ifs a quick service station, the PLANNING AND ZONING MINUTES FEBRUARY 9, 2005 Page 81 - Page 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 t9 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CondensoltTM Page 85 purpose of a quick service station is to get in and out. But if they have a 50 seat restaurant attached to it, then they've got a restaurant that people are going to drive up and go in and eat dinner and stay longer and there*s more traffic. There's just inore of a lot of things going on. And I think inside the City, I think a quick thing, that's wily you go to them. Thg'y'ro quick. But if you start having people parking there going to a 50 place restaurant, it's going to slow everything down. Maybe I'm just -- I don't know. It just deesn't seem -- they don't seem to go together to me. Now, I can sm a quick -- MR. REICHFIART: The restaurant use canoe from our discussions at the Work Session, the ability that, you know, a lot of these places have the little Subway shop or something like that. Talking to thc applicant regarding this site, regarding the proposal, you know. the size of the restam'ant, they don't do that type of tiling. So it's just their convenient sales. I mean, we can start out al ten. We can start out at 15. We can just eliminate the restaurant use. COMMISSIONER STRANGE: Mrs. Carpenter. MS. CARPENTER: Mr. Chairman, just for the sake of discussion, if we assmne that each table sat four people, if you limit it to 25, that's six tables. So I 1 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 87 appropriate. COMMISSIONER STRANGE: This is a -- oh, Mr. Roy. COMMISSIONER ROY: oh, I was just going to say. There is an example of what I think we're talking about, and I don't know if you visited it, but in Corinth at Swisher Road, there's an Exxon station and' I think a Wendy's. I'm not sure. MR. REICHHART: That might even be McDonalds. COMMISSIONER STRANGE: McDonalds. COMMISSIONER ROY: Btlt there's something together. There's a gas stat[on, quick vehicle servicing by your definition, which I still struggle with, but there's a gas station and built into the gas station you walk through the -- you know, there's an opening and there's a fast food restaurant, and I'm going to guess it has maybe ten tables or something like that. And that's what I visualize, but that is nowhere near in my mind 10,000 square feet of a building, but maybe that station is not as big. MR. REICHHART: oh, I bet the combination of the two is. I really believe it probably would be. Very -- 8,000 plus anyways. MR. SNYDER: I've seen these types of Page 86 mean, that might give you a mental picture of what you're talking about. COMMISSIONER STRANGE: Bllt again, we're talking about this tn an industrial center, an employment center, industrial zoning. So this is not going to be all over town. MR. REICHHART: correct. COMMISSIONER STRANGE: SO it's not going to be at the comer of North Locust and University? MR. REICHHART: That is correct. We're typically west of 1-35, north of the airport is where the vacant areas. Some out on University further out by the copper plant, there's some property that might be able to benefit from this, but most of that is employment center, not industrial. COMMISSIONER STRANGE: And to me if, again, we can get around to some other things, that -- if it's in an industrial area might be where you would have people that would go to sit down to have something to eat, so I think limiting it too small could be -- is detrimental the other way. MR. REICHHART: I mean, it's not place, but limiting it to 25 seats, which is about six tables, five, six tables, you know, is basically what you see at the Subway shops and those type of places, so it might be 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 88 facilities further south on 1-35. I can't remember the colmnunity but going down towards Austin where they've actually had three or four different fast food restaurants and a gas station like a little food mall all in one facility. COMMISS£ONER ROY: And I flfink what I hear Vicki saying that's not what we want in the town, but maybe on the higbway it's appropriate~ And if we can -- -- and I believe your proposal is to limit this to a major mad like 1-35E or W. COMMISSIONER STRANGE: And it's also limited to the Industrial Districts, which -- MR. REICHHART: Right. COMMISSIONER STRANGE: I mean, that to me, is the limiting thing. That moves it completely out of town. MR. REICHHART: ^nd the applicant or tile person who raised tiffs issue, they mentioned the 10,000 square feet, but they did not mention tile nmnber of seats. MR. REICHHART: They did not - well, they're not proposing a restaurant. I mean, fl~cy're just looking at 10,000 square feet convenient sales. They're not looking at any restaurant use~ The restaurant use came out of our talk at the work session that we've seen restaurants at these type of places before. PLANNING AND ZONING MINUTES FEBRUARY 9, 2005 Page 85 - Page 88 Condcns~ItTM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ~8 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 i9 20 21 22 23 24 25 Page 89 So the applicant, you know -- I mean, file person that raised the issue -- the restaurant portion is not their issue. It's our internal straggle that we're trying to deal with. COMMISSIONER STRANGE: okay. Let me make one conunent. We are - this is a public hearing. So far we've only had staff. We may have an applicant here who would like to speak and might could enlighten us. Before we interrupt you totally, Mr. Reictdmrt, I would like to ask is tile applicant here and would they llke to speak. MR. REICHHART: I think the applicant's representatives are here. COMMISSIONER STRANGE: would they like to speak? I'm not trying to cut you off, I was just wanting to make sure they - maybe had some questions since we kept referring to the applicant, let's sm what the applicant says. MS. MIXCUEt. t.: Hi, Mr. Chair, members of the Planning and Zoning Commission. Karen Mitchell, Mitcchll Planning Cn'oup, 7823 Nine Mile Bridge Road in FolX Worth. There's really no applicant, so to speak. We've not made application on anything at this tiine. As you can see from your backup information, you-all know that I do a lot of work with Quick Trip Corporation and they are looking at another piece of property here in Page 90 Denton. And so that's really kind of what this is about. But in visiting with Kelly and Larry in the Industrial District and kind of looking at the whole big picture of things. When you have the comp plan, it says, you know, that you have the industrial employment type core areas, but also encourage supporting retail sales and things such as that. That's where this kind of all stenuned from and they were kind enough to say, you know, that this was something that they agreed with, that they thought they could bring forward to y'atl. So a lot of the stuff that they wanted to look at and I agree completely on this, they can't look at it just being what we're, you know, what we're coming in with. But you have to look at the whole big picttrre and how it's going to affect everybody that's in that district. And so I think that may be partially where the restaurant part came from. You-all have ali been in a -- hopefully, you've all been in a Quick Trip and see that they don't -- they have the hotdog sales just like the other kind of things, but there's typically not a -- any restaurant, Subway, or anything like that associated with them. COMMISSIONER STRANGE: okay. Thank you. This being a public hearing, is there anyone else who would llke to speak? If you would come down and please 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 1i 12 13 14 16 17 18 19 20 21 22 23 24 25 Page 91 give us your name and address. MR. PRICE: My name is Gene Price, 725 Chism Trail. I'd just like to address what Ms. Holt was saying about the restaurants and them being non quick. If you'll think about, we do have a Rudy's in town that does have a restaurant and gas station. And you have some choices there. You can run in and get it and get out or you can stay there. I'm not sure how many seats they have. But I'd say at least 100 probably. But I would say that it's very quick. I mcan, you can get in there and get out or stay because they have -- the way they've arranged their parking, it's very easy to get ia and out. As far as thc 10,000 square feet, if that's what the property owner that pays his taxes and has purchased the property with his own money and pays his social security and Medicare taxes and all of the other taxes he pays, you know, he should be able to put 10,000 square feet in there. We need to be careful that we don't become like homeowner's associations and get too restrictive. We have run other businesses out of town where we could have had -- of course, we don't even have a Chic-filet anymore. They moved down south to Corinth. Wal-Mart's warehouse because of thc way we treated thmn when they wanted to build a small market store down on Teasley, we listened to Page 92 the neighbors and they moved and took their jobs and warehouse up to Sanger. So we need to be very, very careful when we make these zoning decisions for these properties and businesses, that we don't throw out the jobs with these environmentalists and others that are concerned about things. In fact, there was a lady when Wal-Mart came that said she was very concerned about her children by people coining out of that small market Wal-Mart. The problem I saw with that -- I never said anything. But I'll say it now. I would put that Wal-Mart or any Wal-Mart or any store up against the schools at 3:00 o'clock in the afternoon for a kid getting killed or injured because those are worse than any store you would ever hope to see. But we're not going to shut down the schools. We're not going to zone them out, so we nod to be very, very careful when we tell businesses, well, you can't come here because of this or that. Thank you. COMMISSIONER STRANGE: Thank you for your conunents. Do we have anyone else who wishes to speak? The crowd grows larger. MR. BUSSELL: ^llen BusseI1. I live at 1668 Amanda Court in Ponder. Just real quick as a guy who lives in an industrial type area, that's where I live and work both. We have a little convenient store right next PLANNING AND ZONING MINUTES FEBRUARY 9, 2005 Page 89 - Page 92 CondcnseltTM Page 93 Page 95 1 to it. It has -- I don't know, about ten seats in it, but 1 2 it' s full at lunch. I think the goal of creating a mixed 2 3 use environment especially as we look at the mobilfity plan 3 4 and Western Boulevard gets built and the new cie, if we 4 5 can have tile ability to have some of fllese restaurants in 5 6 these -- in the light industrial areas, you can reduce 6 7 trips by people going to lunch, getting on the roads, by 7 8 using gasoline at lunch, and -- when they don't have to. 8 9 Wc should be able to have those uses in this district. 9 10 So I would recommend leaving the restaurant use in there. 10 1 Thanks. 11 2 COMMISSIONER sTRANGE: Thank you for your 12 13 colmncnts. Is there anyone else who wishes to speak? I 13 14 think one of the cameramen has left. If there is no one 14 15 else who wishes to speak, I'll close die public hearing. 15 16 Do we have a motion on this i~n7 Mrs. Holt. 16 17 COMMISSIONER HOLT: Imove approval. 17 l 8 COMMISSIONER STRANGE: DO we have a second? 18 19 Mr. Roy. 19 20 COMMISSIONER ROY: I assume that the motion 20 21 includes the changes offered by staff tonight -- 21 22 22 COMMISSIONER HOLT: Yes. 23 COMMISSIONER ROY: -- regarding the 23 24 limitations -- limitations to 1-35E and 1-35W. 24 25 COMMISSIONER STRANGE: [ think it would be 25 Page 94 1 appropriate for staff to clarify exactly what the motion 2 is. 3 MR. REICHHART: I know we agreed that -- or 4 I believe we have to tile -- for limitation 18. That would 5 also allow 10,000 square foot building area adjacent to 6 1-35. I'm not sure where we are with tile restaurant 7 seating though. I believe we cut it to 25 feet -- or 25 8 seats, but not Ill,ting it adjacent to 1-35, but I may be 9 wrong. Maybe we're doing 50 scats and not doing anything 10 with it. 1 COMMISSIONER UOL~: i'd like to limit it to 2 25 seats by 1-35. 13 MR. RE[CHHART: okay. Just so you can have 14 25 seats -- you can lmve a restaurant just adjacent to 15 1-35. The rest of it would just be typical convenient 16 stores. 17 COMMiSSiONER HOLT: NO. Wait a minute. 8 I've got it confused. 50 seats by 1-35, limited to 25 in 19 tile City. 20 MR. REICHHART: okay. 21 COMMISSIONER SlRANOE: DO we have a second? 22 COMMISSIONER ROY: I would like to second 23 that, but I have a question. The 10,000 square feet was 24 1-35. We're we going to allow 10,000 square feet, Larry, MR. REICHHART: Every place else would be 5,000 square feet. COMMISSIONER ROY: okay. That's outside of 35. MR. REICHHART: ^nd thc 5,000 square feet did come from surveying, recently approved gas station convenient stores, and they're anywhere from, you know, 1,200 square feet, but, typically, in tile 45 to 4,900 square feet range, so that's where the 5,000. COMMISSIONER ROY: SO with the amendment to the motion, that the outside of 1-35 area, that it be 5,000 square feet, I second that Outside of 35, 5,000 square feet, and on 1-35, 10,000 square feet and I second the nrotion. COMMISSIONER sTRANOE: okay. Any discussion? I would like to -- just to say that I would hate for us to limit the seating on these not knowing what the prototypes are for the people who are coming here. You know, if there was a piece of property along 35 north by the Loop or somewhm~:, if it was an industrial classification, and Rudy's wanted to build another restaurant, I would hate to limit them to the fact that they could only have 50 seats. I can also see as Western Center Boulevard develops and hopefully we'll have a lot of jobs there that if someone wanted to put one of these Page 96 i in and there happened to be a Wendy's or a McDonalds or a 2 Whataburger or whatever, that if workers would want to go 3 sit and have a place to eat, I would hate to limit that to 4 25 seats. 5 I have somewhat of a problenl with the 6 limitation on tile seats. It would seem to me that the 7 people who build those know better what they want to put 8 there titan we do. So I would have a problem voting for 9 this with limitations. Mr. Roy. l0 COMMISSIONER ROY: My uuderstanding is that 11 this is a restaurant associated with a gas station. Now, 12 I don't associate Rudy's as a restaurant associated with a 13 gas station. To me that's a gas station associateA with a 14 restaurant. 15 MR. REICHHART: I guess it's how you look 16 at it, but the other thing to think about tt~rough this is 17 that we are, again, talking about the industrial zones. lg And right now you -- we are limiting -- you can't have a 19 restaurant in the industrial zones. We want industrial 20 uses, however, if you do on one of the corners have a gas 21 station, we think it's a good idea to have the convenient 22 sales associated with the gas station and what we're 23 saying is and oh, by the way, you can have a little diner, 24 a little deli. 25 everywhere as well, or is that a done deal akeady anyway. 25 PLANNING AND ZONING MINUTES FEBRUARY 9, 2005 You could have a few seats to support that Page 93 - Page 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 Condens¢ItTM Page 97 use. So I mean, that's the idea of limiting the seats. You're right. We don't want restaurants in the industrial area. We want industrial uses. But to support the workers and have some use out there -- if we're saying if you have a gas station, then you could have a convenient store, and oh, by the way, we've seen small restaurants in the gas station. So that's the intent behind limiting it. But you've right it's just associated with a gas station. COMMISSIONER ROY: One more question if I may. COMMISSIONER STRANGE: Yes, sir. Mr. Roy. COMMISSIONER ROY: If SOUlO unforeseen situation came in and they wanted to build a gas station with a restaurant with 75 seats, is them a mechanism -- MR. REICHHART: The SUP process. COMMISSIONER ROY: So they could come to us with one of these mega deals? MR. RetCUU~drl': Right. COMMISSIONER ROY: yeah, okay. MR. REICHHART: NOW, that we're allowing it but limiting it, the sue could be used to expand it. I mean, before they couldn't even come in and get the sue if they had a gas station. COMMISSIONER STRANGE: Any other discussion? Okay. Like I say I'm going to clarify my 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 98 position with a limitation them not knowing who the people would be that would operate these, I would not want to preclude their use of their property, so Itll be voting against it. Any other discussion? If not, please vote. And the vote passes 4-1. (COMM£SS[ONER STRANGE VOTING IN OPPOSITION.) COMMISSIONER STRANGE: IS 0.lerO any other business to come before the Co~mnission tonight? Any future Agenda items? Seeing none, we will adjourn at 8:40,. ?LANNING AND ZONING MINIJTES FEBRUARY 9, 2005 Page 97 - Page 98 S:\Our Documents\Orclinances\05~DCA05~001 Ordinance .do~ ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF SUBCHAPTER 5 AND SUBCHAPTER 23 OF THE DENTON DEVELOPMENT CODE PERTAINING TO RETAIL AND RESTAURANT USES ASSOCIATED WITH QUICK VEHICLE SERVICING IN THE INDUSTRIAL CENTER EMPLOYMENT (IC-E), INDUSTRIAL CENTER GENERAL (lC-G) AND EMPLOYMENT CENTERS INDUSTRIAL (EC-1) ZONING DISTRICTS; PROVIDING FOR A PENALTY CLAUSE WITH A MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (DCA05-0001) WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, after providing notice and atter conducting a public hearing as required by law on February 9, 2004, the Planning and Z~ning Commission recommended approval of certain changes to Subchapters 5 and 23 pertaining to retail and restaurant uses associated with Quick Vehicle Servicing in the Industrial Center Employment (IC-E), Industrial Center General (IC-G) and Employment Centers Industrial (EC4) zoning districts; and WHEREAS, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Comprehensive Plan and are in the public interest; NOW, THEREFORE THE COUNCIL OF THE C1TY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. Subchapter 5 of the Development Code is hereby amended in part as particularly described in Exhibit "A" attached hereto and made part hereof by reference. All other provisions of subchapter 5 not inconsistent with this amendment shall remain in full force and effect. SECTION 3. Subchapter 23 of the Development Code is hereby amended in part as particularly described in Exhibit "B" attached hereto and made part hereof by reference. Ali other provisions of subchapter 23 not inconsistent with this amendment shall remain in full force and effect. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. If any section, subsection, paragraph, sentence, phrase or. word in this ordinance, or application there of to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not effect the validity of the remaining portions of this PAGE 1 S:\Our Documents\Ordinances\05\DCA05-001 Ordinance .doc ordinance, and City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. 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 ., 2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 2 S:\Our Documents\Ordinances\05\DCA05-001 Ordinance .doc Exhibit A Amend Sub-Chapter 5 of the Development Code to include the following L18 and L(22) limitations: L(18) = L(22) = Uses are pen-nit-ted only in association with Gas Stations and axe limited to no more than 5,000 squaze feet of gross floor area except adjacent to 1-35 then uses axe limited to I0,000 square feet of gross floor area. Uses are permitted only in association with Gas Stations and are limited to no more than 25 seats except adjacent to 1-35 then the number of seats is limited to 50. 2. Amend Use Table in Sub-Chapter 5 of the Development Code be amended as follows: Drive-through Facility P P ,?;!:~:~',i!'.~! '..7~':~ ::' i Quick Vehicle Servicing P P p p PAGE 3 S:\Our Documents~,Ordinances\05\DCA05_001 Ordinance .doc EXlBIT B Amend Sub-Chapter 23 (Definitions) to include: Gas Stations: A facility that provides retail sales to the public of gasoline, motor oil, automobile lubricants, motor fuels, travel aids, and minor automobile accessories. PAGE 4 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 22, 2005 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT -Z04-0047 (Church's Chicken, SUP AmendmenO Hold a public hearing to consider an ordinance to amend a Specific Use Permit (SUP) for a drive-through facility for Church's Chicken. The property is in a Neighborhood Residemial Mixed Use (NRMU) zoning district and is located south of McKinney Street approximately 900 feet west of Loop 288. The Planning and Zoning Commission recommends approval (5-0). BACKGROUND Applicam: Mitchell Planning Group, L.L.C. DeNon, TX The City Council approved an SUP for the site on July 20, 2004 (Attachmem 6) including the following condition of approval: "An access easement for the connection to the property and the driveway to the east must be provided prior to final plat approval." The applicam has not been able to acquire an easemem from the adjacem property and is therefore requesting the amendment to the SUP to remove that condition (Attachment 7). Public notification and property owner responses are provided in Attachmem 3. As of this writing, staff has not received written responses from property owners within 200 ft. of the subject property. PRIOR ACTION/REVIEW (Council, Boards, Commissions) June 23, 2004 - Planning and Zoning Commission approve a variance from driveway separation requiremems (V04-0018). July 20, 2004 - July 20, 2004 - Feb. 23, 2005 City Council approves zoning from Neighborhood residemial 4 (NR-4) to Neighborhood Residemial Mixed-Use (NTMU) (Z04-0019). City Council approves an SUP for a drive through with conditions (Z04-0020). Planning and Zoning Commission public hearing. FISCAL INFORMATION N/A RECOMMENDATION The Planning and Zoning Commission recommends approval (5-0, Strange absent). OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. ESTIMATED PROJECT SCHEDULE The subject property is not platted. Preliminary and final plats are required prior to issuance of building permits. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Notification Map 4. Site Photo 5. Site Plan 6. Z04-0020 Ordinance 7. Letter from applicant 8. Feb 23, 2005 P&Z minutes 9. Draft Ordinance Prepared by: 3sistant of Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request The original Specific Use Permit (SUP) was request for a drive through facility. Sit-down-only restaurant is a permitted use in the NRMU zoning district with no more than 100 seats and 4,000 square feet of restauram area. The approval of a SUP was required for the proposed drive- through facility. The SUP was approved on July 20, 2004 (Attachmem 6) with the following two conditions: 1. The drive- through facility shall be as provided on the site plan. 2. An access easement for the connection to the Property and the driveway to the east must be provided prior to final plat approval. The applicant has indicated (Attachment 7) that they have been unable to acquire the easement (2nd condition) and therefore are requesting to amend the SUP. Existing Condition of Property The proposed site is currently vacant. adoption of the Development Code. The subject property was zoned Agricultural prior to the Adjacem Zoning North: Neighborhood Residemial 4 (NR-4), Single-family dwellings. South: Neighborhood Residemial 4 (NR-4), Vacam, remaining property. East: Neighborhood Residemial Mixed Use 12 (NRMU-12), Multi-family dwellings. West: Neighborhood Residemial 4 (NR-4), Single-family dwellings. Comprehensive Plan Analysis The subject site is located in a "Neighborhood Center" future land use area, which may incorporate facilities vital to the day-to-day activity of the neighborhood. A neighborhood cemer may contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park, and an elememary school. The proposed request for a SUP is in compliance with the Denton Plan. Developmem Review Analysis Access Access to the subject site is from McKinney Street. Although cross access to the property to the east is desirable, it is not required. The Developmem Code requires cross access to adjacem properties unless the adjacem property is developed. As the property to the east is developed (Multi-family) cross access is not required. Transportation The applicam will provide sufficiem information during the platting process to determine whether a Traffic Impact Analysis (TIA) is required. The DeNon Mobility Plan classifies McKinney Street as a primary major arterial road, which is maimained by TXDOT. Additional right-of-way dedication will be required on McKinney at time of platting. Public Infrastructure Water and sewer capacity to serve the proposed site exists. Development Code / Zoning Analysis According to Chapter 35.6.4 of the Developmem Code, a Specific Use Permit shall be issued only if all of the following conditions have been found: That the specific use permit will be compatible with and not injurious to the use and enjoyment of the other property nor significantly diminish or impair property values within the immediate vicinity; The drive-through is comained solely on the subject property and is adjacem to the apartment complex driveway. It is unlikely that the operation of the drive-through would diminish or impair property values within the immediate vicinity. As cross access to the adjacent property to the east does not exist at this time, amending the condition for cross access should not effect the use of adjacem properties. 2. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; Adjacem property to the east is already developed. 3. The adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; Utilities are in place to support the subject site. The applicant must address circulation issues satisfactory to the Fire Department and Solid Waste Service prior to the approval of preliminary plat. The design, location and arrangement of all driveways and parking spaces provide for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent development; The proposed parking areas meet the requiremems of the City of DeNon. According to the applicant, approximately 45 seats are proposed. At the ratio of 1 parking space per 4 seats, 12 parking spaces are required. The applicam is proposing 18. The landscape plan indicates landscaped area to meet the pervious surface requirement. 5. The additional nuisance preventions measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; The location of the drive-through speaker minimizes the impact to adjacem uses. The drive-through will not create any additional offensive odors, dust, noise, or vibration will occur after initial construction. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; Subchapter 13 of the Developmem Code addresses the issue of directional lighting. Additionally, the applicam is proposing a hedge to minimize the light spill from car headlights. 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. The applicant has submitted a landscape plan for consideration with this specific use permit application. All landscaping and screening requirements are in conformance with the Development Code. Section 35.6.5 allows the approval authority to recommend additional conditions on the proposal to protect the public welfare and safety. Specific standards are also required for all drive-through uses according to Subchapter 35.13.11 of the Denton Development Code: A. Drive-through uses shall provide sufficient stacking area to ensure that public right of ways are not obstructed. B. Drive-through uses must be built as an integral architectural element of the primary structure and use. The materials are the same as those used in the primary structure. C. Drive-through uses must be located to the rear or side of the structure, and buffered on the rear and side lot lines as required in section 35.13.10. The proposed site plan meets the standards for a drive-through. Staff Findings The original SUP request for the drive-through facility was approved on July 20, 2004 (Ordinance No. 2004-200) with the following conditions: 1. The drive- through facility shall be as provided on the site plan. 2. An access easement for the connection to the Property and the driveway to the east must be provided prior to final plat approval. Access to the east is not essential, nor required by code for the operation of the drive-through facility. Staff Recommendation Based on the above findings, staff recommends approval of the requested amendment to remove the cross access easement requirement. ATTACHMENT 2 Location/Zoning Map NORTH Land Use Map ATTACHMENT 3 Notification Map NORTH -'q iA % ~~.~ ".~3 ..... "'1 ': '"" ' ........ Notification ~ ~-- : ?: .......... T // Limits of 500' I:'., ~: ,., .: ..,,.: Scale: None Public Notification Date: February 10, 2005 200' Legal Notices* sent via Certified Mail: 9 Number of responses to 200' Legal Notice: · In Opposition: 0 · In Favor: 0 · Neutral: 0 Ovr)osition: 0.0% *A copy of the notification list can be obtained at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Photo 1' View of subject property from McKinney toward the East. Photo 2: View of subject property from McKinney toward the South. ORD N C AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT FOR A DRIVE-THROUGH FACILITY ON APPROXIMATELY 0.56 ACRE OF LAND GENERALLY LOCATED SOUTH OF MCKINNEY STREET AND APPROXIMATELY 900 FEET WEST OF LOOP 288, WITHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTy IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z04-0020) WHEREAS, Mitchell Platming Group, L.L.C. has applied for a specific use permit for a drive-through facility for a restaurant within a Neighborhood Residential Mixed Use zoning district classification and use designation on approximately 0.56 acre of land generally located south of McKinney Street and approximately 900 feet west of lmop 288, as more particularly described in Exhibit "A' attached hereto and made a part hereof by reference (the"'Property"); and WHEREAS, the proposed site plan for the specific use permit is on file in the offices of the Planning Department, a copy of which is attached hereto and made a part hereof as Exhibit "B" (the "Site Plan,); and WHEREAS, on June 23, 2004, the Plarming and Zoning Commission recommended approval of a Specific Use Permit for a drive-through facilitY; and WHEREAS, the City Council' fmds that the Specific Use Permit is consistent with The Denton Plan; and WHEREAS, in accordance with Subchapter 6 of the Development Code of the City of Denton, Texas, the City Council finds that all of the following conditions exist: The drive-through facility will be compatible with and not injurious to the use and enjoyment of other property nor significantly diminish or impair property values within the immediate vicinity; and The establishment of the drive-through facility will not impede the normal and orderly development and improvement of surrounding property; and Adequate utilities, access roads, drainage, and other necessary supporting facilities have been or will be provided; and The design, location, and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; and Adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; and Directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and There is sufficient landscaPing and screening to ensure harmony and compatibility with adjacent property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBy ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. A specific use permit is hereby granted for the Property to allow a drive- through facility for a restaurant within a Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation, subj eot to the following conditions: a. The drive-through facility shall be as provided in the Site Plan. b. An access easement for the connection between the Property and the driveway to the east must be provided prior to final plat approval. SECTION 3. Notwithstanding the description of the Property, the property being rezoned includes all property to the centerline of alt adjacent street rights-of-way. SECTION 4. The City's official zoning map is amended to show the change in zoning district classification. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sm not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chrordcle, a daily newspaper published in the City o fDenton, Texas, within ten (10) days of the date of its passage. pASsED AND APPROVED this thetT~day of ~ ,2004. EULINE BROCK, MAYOR PAGE 2 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: PAGE 3 Exhibit A SURVEY PLAT TO ALL PARTIES INTERESTED IN PREMISES SURVEYED: Th~s is to certify that I hove, thls dote, mode a careful end accurate survey on the ground of the [ollowlng described property: SURVEY PLAT TO ALL PARTIES INTERESTED IN 'PREMISES SURVEYED: Thls ~s to certlfy that I hove, this date, made o careful end accurate survey on the ground of the followlng described property: BEING oil that certo~n lot, tract or parcel of lend situoted in the M. Yoochum Survey, Abstract No. t4~.2, in the City of Denton, Denton County, Texas, end beiog port of the 64.564 acre property described ;n Tract 1 conveyed [o Londy Mulkey by deed recorded [n County Clerks File Number 97-R0029089 of the Deed Records of Denton County, Texas, end being more portlcularly described by metes end bounds as follows: BEGINNING et o 5/8" ';ran rod set for corner in the South right of way line of McKinney Street (Farm Market No. 426, variable width r[ght of way), COiled 40 feet from the centerllne et th~s polnt, some being the North I;ne el~ said Londy Mulkey 6~,-.584 acre tract, which is North 82° 20' 27" West et o dlstonce of 551.58 feet from its Northeast corner, some now being the Northeast corner of Lot 1 in Block A of the Putt-Putt Golf Addition, on oddlt;on to the City of Denton, Texas, occordlng to .the plat thereol' recorded in Cabinet "H" et Slide 147 of the Plot Records of Denton County, Texas, sold po[hr of beginning eisa being the Northwest corner of Knollwood Villas, on odd[Uon to the City of Denton County, Texas, according to the plot thereof recorded in Cob;net "U" et SI;de 902 of the plot Records of Denton County, Texas; THENCE South 07' 40' 01" West (Bests of Bearings per plot recorded in Coblnet "U" et SI;de 902 of the Plot Records of Denton County, Texas) end deporting the South Hght of way llne of se~d McKinney Street , end passing et o distance of 19.57 feet the Northwest corner of Lot 2 in Block A of said Knoltwood Vi~los, end continu[ng elan9 the West line of said Lot 2 in Block A of Knollwood Villas for o total distance of 167.57 feet to o 5/" ~ron rod set for corner; THENCE North 82' 20' 27" West end deporting the Wes[ line of said Lot 2 for a distance of 145.00 feet to a 5/8" iron rod set for corner; THENCE North 07' 40' 02" East for o d~stonce of 167,57 feet to on "X" set in concrete for corner tn the South right of way line of eo;d McKinney Street, said 'po~nt also being South 82' 20' 27" East at a distance of 200,18 feet f[om the Northwest corner of said Landy Mulkey 64,584 acre tract; THENCE South 82" 20' 27" East along the South line of said McK;nney Street and the North line of said Londy Mulkey 64.584- acre tract for o d[stonce of 145.00 feet to the POINT OF BEGINNING AND CONTAINING 0.5578 ACRES OF LAND, more or less. FLO00 NOTE: According to the Federal Emergency Management Agency - Federal Insurance AdmlnWtroUon - Notional Flood Insurance Program - Flood Insurance Rote Mop - F.I.R.M. - for the City of Denton, Denton County, Texas - Community Panel No. 48121C03B0 E, effective dote ApHI 02, '1997: the property shown hereon does not lie within on oreo of lO0-year flood. CERTIFICATION The plat hereon ;s o true, correct and accurate representoUon of the property os determined by survey, mode on the ground, this dote, subject to any and all easements, reservoUons or restrictions that may by of record, the lines and dimensions of said property being as ~ndlcoted by the plot; the size, Iocotlon and type of buildings and improvements ore as shown, all improvements being w~thln the boundarles~ of the property, set bock from the property lines the distances indicated and that the dlstonce from the nearest intersecting street or road is os shown on said plot. There ore no encroachments, conflicts or protrusions, except os shown. PRELIM:NARY: MAY 27, 2004 Dovld Petree. RPLS Registered Professional Lend Surveyor No. 1890 I ! f I Exhibit B ':" , Mitchell Planning Group, L.L.C. 7823 Nine Mile Bridge Road Fort Worth, Texas 76135 Office- (817) 237.4467 Fax - (817) 238.1444 mitcheflplanning@aol.com December 1, 2004 Ms. Kelly Carpenter, Director of Planning and Development City of Denton 221 N. Elm Denton, Texas 76201 RE: Amendment to Specific Use Permit for Church's Chicken Dear Ms. Carpenter: On behalf of our client, Church's Chicken, we are submitting an application for the amendment to our Specific Use Permit which was approved on July 20, 2004 for the purpose of a restaurant with a drive-thru facility. The ordinance which approved our request with associated site plan had a stipulation of obtaining a joint access easement from the property owner to the east of our site. This was not a request of the City; however, it was a condition of Church's purchasing the property from the Uulkey Estate. Unfortunately, they were unable to acquire the easement and as such, have made alternative provisions for the access issue. The purpose of our request is to amend the site plan showing an alternative on-site access easement and instead of having two {2) access points to E. UcKinney Street, we are proposing only one (1) point of access. In other words, we are asking to eliminate one (1) of the access points. Please feel free to call me should you have any questions. Cc: David Fabian, Real Estate Director, Church's Chicken Verlin Woods, Project Coordinator, Adams Engineering Inc. Gene Collins, Genlenderkei, Inc. CondcnsvItTM Page 21 ] COMMISSIONER HOLT: Item 5 on tile Agenda is 2 a public hearing. Mr. R¢ichhart. 3 MR. RE[CHHART: Thank you. Item 5A is to 4 hold a public hearing and consider making a recormnendation 5 tO City Council regarding an ameadment to a Specific Use 6 Penuit. Case Z-04-0047. I'm sure some of you recall on 7 July 20tb -- on .rune 23rd, this came to P & Z, and on July 8 20th the sue -- the zoning for the site te NRMU and the 9 sm' for the site for a Church's Chicken was approved with 10 two conditions. The sup was needed because of file 11 drive-through use associated with the proposed Church's 12 Chicken Restaurant. 13 One of the conditions of approval stated 14 that an access easement for the connection to the property 15 and the driveway to file east must be provided prior to 16 final plat approval. If you recall at the hack of the 17 site, the applicant was proposing a driveway off east 18 McKinney and -- with a couple of entrances into their 19 parking lot and then another driveway coming over to the 20 east. 21 This driveway right here serves file 22 apartments on McKinney and the condition was to provide 23 that access easemem be*ween their proposed driveway and 24 the existing driveway. 25 MS. Cam'u~'rER: Mr. Reicbhart, they can't 1 2 3 4 5 6 7 8 9 10 i1 12 13 14 t5 16 t7 18 19 20 21 22 23 24 25 Page 22 Page 23 1 Oh, I'd like to open the public hearing. 2 MR. MORR[SON: Thank you. My name is Wes 3 Murrison, 7823 N~ne Mile Bridge Road, Fort Worth, Texas. 4 Give me just a second hem. If I could get die overh~d 5 camera. I've got kind of a little drawing similar to what 6 Mr. Rcichhaia put up, but I've colored it. So it's a 7 little prettier. So as soon as the camera comes up~ just 8 real briefly, I mean, as Mr. Reichhart slated, thc -- you 9 did reconunend approval, or actually City Counc]I approved 10 this in -- July 20th, I believe of this past smmner. 11 And if tiny could possibly zoom in, the red 12 area lien: ,,vas included in file original approval. The -- 13 and the only thing that's changing on the site plan is 14 fha! the red area is being deleted. The groan area is 15 being added. The yellow area is the boundary of the 16 properly, thole Church's Chicken is purchasing. The drive 17 on the outside here is all a mutual access that's being 18 platted, that will be platted on the Mulkey's property, 19 which is the property that Church's is purchasing fi'om. 20 To give you kind of a big picture as to why 21 that access is not possible at this time, to kind of give 22 you fin aerial, and we can kind of get focuse, xl, and 23 hopefully, they'll zoom in a little bit closer for me, if 24 they can. Tile square hem in black i~ the Church'~ 25 property they have under contract. This area hem along Page 24 MR. REICHHART: wait for it to catch up. There we go. Okay. Here's a driveway that the applicant is proposing. Their site is interior to that, McKinney St~mt. Here is the existing driveway for the multi-family aparUnctus. Tl~e proposed easemeat was behvccn this driveway and thc existing driveway for a futura connection between the two. Our Development Code does not require that connection as this property is arcady developed. We provide cross access eascmeats~ connection with roads, stub roads and such to undeveloped properties. It wasn't required. It was something we worked out with the applicant. We thought it was a good idea. The applicant did at the time, too. And I'll let the applicant explain their negotiations with the adjacent property, but suffice it to say they have not been able to get that easement. Because it was a condition in the sue, the I with the existing apa~nent complex, rite existing 2 apamnent complex purchased, their property from the 3 Mulkeys. This was ail one large tract, Mulkey tract~ 4 At the time that the apartment complex 5 purchased their property from the Mulkeys, them was an 6 agreement that they would have to provide mutual access 7 here to the rest of -- to other properties being developed 8 within -- when they started selting thorn off. 9 That contract was not finalized in rite 10 original -- or that agremnent was not finalized in the 11 original contract with the apartmeut complex, therefore, 12 when Church's came in on their original application that 13 you heard back ia tile smmner, they dldn'~ know fl~a~ 14 information and so they wanted to show this access on 15 their -- and I'm assmning I can keep going. Thank you. 16 Is that right.'? Okay. Thanks. They wanted to show those 17 because they wanted that access. 18 After finalizing the contract with the only way !:o remove that condition is come back through the process again. And staff is recomtnending approval of their request to remove that cross access requirement. I do kaow the applicant is here but I'd be happy to answer any questions that you may have. COMMISSIONER HOLT: Is file applicant hem? 19 20 21 22 23 24 25 Mulkeys it became known that that access was not granted with the apartu~ent complex and thc apartment complex was asking approximately $150,000.00 for that access with that information and with Church's t~eally wanting tn come to the site, at that point, we had to nmke the change tn allow Church's to develop here. So what we did is we camo back to staff. PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 21 - Page 24 CondenscltTM Page 25 I We showed this layout. We met with the engineering 2 depamnent, fire department, and they both said that with 3 providing this turnaround here, that fire and engineering 4 would be happy and as far as life safety, they were okay 5 -- it would provide the life safety needed for hacking out 6 and everything. 7 With that being said, this being the only 8 change that we're making to the site plan, we request your 9 reco~mnendation of approval I can answer any questions. 10 COMMISSIONER HOLT: Are there any questions I l of the applicant? 12 COMMISSIONER ROY: The ~'cen area, can you 13 kind of talk through what that's used for again? 14 MR. MORRISON: what that's used for is -- 15 since this is a mutual access, it's my understanding from 16 the fire department -- 17 COMMISSIONER ROY: EXCUSe me. What do you 18 mean mutual access? 19 MS. MORRISON: This area here is the mutual 20 acccss~ It's not on the Church's Property. It will be 21 platted on the Mulkey's property; there[ore, it will be 22 served by the future developed property in the area. Is 23 that -- I'm still getting a look here, I'm not sum. 24 MS. MITCHELL: Bet me jump in here. Karen 25 Mitchell 7823 Nine Mile Bridge Road in Fort Worth. Page 26 I Basically, what this is is what we refer to as a 2 halmuerhead. This right hem would be a co]ranCh access 3 easement that if you will took at, I'~n going to zoom in on 4 this picture right here. You can kind of see it. This is 5 an existing drive approach, that's just located to the 6 west of this piece of property. This is the only access that Church's is requesting to use on their property. 8 this right here will actually access ali of this remainder 9 of the property whenever it develops out. 10 So when we go through the platting process, 11 that is going to have to show up. It's going to have to 12 be dedicated as a conuuon access easement so it will not 13 only handle the Church's property. It will handle all of 14 this property back over here as well. t 5 Getting back to this right here, in order 16 for the fire tracks and all, since they can't come in like 17 this and go back out this way, what they would do is they 18 would be able to come right here, they could come hem, 19 back out and then go straight back this direction, it's a 20 relatively centurion practice referred to as a hammerhead 21 that is used to handle it versus doing a full turnaround 22 at that location. 23 COMMISSIONER ROY: Thank you. 24 COMMISSIONER ItOLT: Any mom questions for 25 the applicant? Dr. Thibodeaux. I Page 27 1 COMMISSIONER THIBODEAUX; It'S not clear to 2 me what's happening with the little red area. What -- 3 that was in the original -- 4 MS. MITCHELL: Right. This was part of the 5 original deal -- 6 COMMISSIONER THIBODEAUX: -- approval from? 7 MS. MITCHELL: It Was. And what Mr. 8 Morrison was explaining was is that this was something 9 that was an agreement as part of the real estate 10 transaction between Church's Chlcken and the Mulkey I 1 Estate. And what happened in that is even though there 12 was documentation that there was an agreement, 13 unfortunately before they closed on the properly, they did 14 not get it in writing. And that's what caused the problem 15 right there. 16 COMMISSIONER HOLT: Thank you. This is a 17 public hearing. Is anyone here that would like to speak 18 on this topic? If not, I'1l close the public hearing. 19 Commission, is there a motion? Mr. Roy. 20 COMMISSIONER ROY: I move approval of the 21 requested amenchnent for Item 5A. 22 COMMISSIONER HOLT: IS there a second? 23 COMMISSIONER WATKINS: second. 24 COMMISSIONER HOLT: Mr. Watkins. Any 25 discussion? I'll call for a vote. The motion passes five 7 8 9 10 11 I2 13 14 15 16 17 18 I9 20 21 22 23 24 25 PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 28 in favor of lhe motion. Are there any more items for the Agenda in the future? I close the meeting. Thank you. Page 25 - Page 28 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE NO. 2004- 200, A SPECIFIC USE PERMIT FOR A DRIVE-THROUGH FACILITY ON APPROXIMATELY 0.56 ACRE OF LAND GENERALLY LOCATED SOUTH OF MCKINNEY STREET AND APPROXIMATELY 900 FEET WEST OF LOOP 288, WITHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (Z04-0047) WHEREAS, Mitchell Planning Group, L.L.C. has apphed to remove "condition b" of Ordinance No. 2004-200, a specific use permit for a drive-through facility for Church's Chicken within a Neighborhood Residential Mixed Use zoning district classification and use designation on approximately 0.56 acre of land generally located south of McKinney Street and approximately 900 feet west of Loop 288, as more particularly described in Exhibit "A' attached hereto and made apart hereof by reference (the "Property"); and WHEREAS, on February 23, 2005, the Planning and Zoning Commission recommended approval of the amended Specific Use Permit for a drive-through facility; and WHEREAS, the City Council finds that the amended Specific Use Permit is consistent with The Denton Plan; and WHEREAS, in accordance with Subchapter 6 of the Development Code of the City of Denton, Texas, the City Council finds that all of the following conditions exist: The drive-through facility will be compatible with and not injurious to the use and enjoyment of other property nor significantly diminish or impair property values within the immediate vicinity; and The establishment of the drive-through facility will not impede the normal and orderly development and improvement of surrounding property; and Adequate utilities, access roads, drainage, and other necessary supporting facilities have been or will be provided; and The design, location, and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; and Adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration; and Directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and There is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property; NOW, THEREFORE, THE COUNCIL OF THE CiTY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. Ordinance No. 2004-200 is amended, removing condition b (An access easement for the connection between the Property and the driveway to the east must be provided prior to final plat approval.). SECTION 3. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 4. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days oft he date of its passage. PASSED AND APPROVED this the ~day of .,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CiTY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~ PAGE 2 Exhibit A PAGE 3 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 22, 2005 General Government Betty Williams, Director of Managemem & Public Information Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance of the City Council of the City of DeNon, Texas, on second reading, graining a Cable Franchise to the University of North Texas (UNT) to construct, reconstruct, operate and maintain a cable television system in the City of Denton, Texas and setting forth conditions accompanying the granting of this Cable Franchise; providing for a penalty of five hundred dollars ($500) for the violation of this ordinance; providing for a savings clause; providing for the effect of this ordinance upon other ordinances and resolutions; and providing an effective date. BACKGROUND: In June of 2004, Charter Communications notified the City that the University of North Texas (UNT) had a bid out for a fiber optic network and satellite television service. After investigation of the facts and legal research, staff concluded that if the fiber optics system was used for satellite television service and any part of the system was in city right-of-ways, UNT would have to apply for a cable television franchise. UNT representatives did confirm that the fiber optics system would be used for satellite television service to dormitories and other university buildings. UNT also provided us with a map showing that the fiber optic system would be located in city right-of-ways. The DeNon Cable Television Ordinance requires that all multi-channel video providers shall obtain a franchise from the City prior to providing service to any residem, business or person within the City, and shall have a franchise prior to the installation of lines, fibers or facilities that are in or cross any streets or public right-of-ways or other public property within the city. A multi-channel video service means multiple channels of video programming where some or all of the video programming is generally considered comparable to programming provided by a television broadcast station or by a direct to home satellite service. The UNT satellite television service would fall within the definitions of a multi-channel video system. Cable television service has historically been provided to dormitories and other UNT buildings by Charter Communications. UNT and Charter negotiate a bulk rate for this service as part of an annual contract. Charter pays the City a 5% franchise fee from these revenues. The bulk rate contract was due to expire in September 2004, but UNT did extend the contract with Charter for one more year. ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) March 22, 2005 UNT Cable Television Franchise Agreement Page 2 of 3 On November 22, 2004, UNT comacted the City to begin the cable television franchise application process. The application is attached. The Denton Cable Television Ordinance requires a public hearing within ninety (90) days from the filing of a cable television application, to hear all commems from the public on the application. No later than ninety (90) days after the public hearing, the city council shall make a determination to gram or deny the franchise based upon an evaluation of the application, the public hearing, and any other information deem relevant. Staff will conduct an audit of the fiber optics system and begin negotiations with UNT on the terms of a cable television franchise agreement. On December 7, 2004, the Demon City Council held a public hearing to afford the public appropriate notice and provide an opportunity to comment on the cable television franchise application filed by the University of North Texas with the City of Demon. The VP and General Manager for Charter Communications, Sharan Wilson, was the only person that made comments at the public hearing. On March 1, 2005, the Demon City Council approved the Cable Television Franchise Agreemem on first reading. OPTIONS: 1) Approve the ordinance graining a Cable Television Franchise Agreemem to the University of North Texas to construct, reconstruct, operate and maintain a cable television system in the City of Demon. 2) Deny the ordinance and direct staff to continue working on the terms of the Cable Television Franchise Agreemem with the University of North Texas. RECOMMENDATION Staff recommends option # 1 PRIOR ACTION/REVIEW (Council, Boards, Commission): 1. Legal Status Report on September 3, 2004 2. City Council Closed Session on September 7, 2004 3. Legal Status Report on October 15, 2004 4. Legal Status Report on December 3, 2004 5. Public Hearing on December 7, 2004 6. First Reading on March 1, 2005 FISCAL INFORMATION: In order to ensure that this Franchise is competitive neutral and not discriminatory as to other cable operators in the City, the City requires, and the gramee agrees, the gramee shall pay a franchise fee equal to $0.455 per momh per each End Poim Connection during the term of this Franchise. The gramee shall pay to the City the franchise fee as calculated in accordance with this section in quarterly installmems within forty-five (45) days after March 30, June 30, September 30 and December 31 of each year the franchise fee attributable to the preceding quarter. Included with such payment will be a report on the number of End Point Connections providing service on a momhly basis by street address and room number. Such franchise fee is a 5% fee based upon a presem estimated retail value of the cable services of $9.10 per End Poim ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) March 22, 2005 UNT Cable Television Franchise Agreement Page 3 of 3 Connection when provided in bulk. The $0.455 charge is 5% of the retail bulk value of the cable services provided by the grantee. This franchise fee is comparable to the franchise fee that Charter was paying to the City for Charter's bulk rate cable television service to UNT. Further the City may adjust the franchise fee no more than once every two years to reflect any increases in the charges for such services by the other cable providers in the City providing similar services with 30 days' notice to grantee. In the event the grantee provides additional services, the City reserves the right to reasonably estimate the retail market value of those services based upon the rates of the other cable providers in the City of similar services and adjust this franchise fee to be 5% of the value of those services accordingly with 30 days' notice to Grantee. Examples of such services includes, but is not limited to the following: (a) Revenue from all charges for services provided to Users of entertainment and nonentertainment services, including leased access fees; (b) Revenue from all charges for the insertion of commercial advertisements, including but not limited to launch fees, upon the cable system; and (c) Revenue from all charges for the installation, connection and reinstatement of equipment necessary for the utilization of the cable system and the provision of User and other services. Prepared by: John Cabrales Jr. Public Information Officer Respectfully submitted: ~etty Williams Director of Management and Public Information Attachments 1. Ordinance 2. UNT Cable Television Franchise Agreement ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) S:\Our Documents\Ordinances\05XUNT.doc ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS GRANTING A CABLE FRANCHISE TO THE UNIVERSITY OF NORTH TEXAS TO CONSTRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF DENTON, TEXAS AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF THIS CABLE FRANCHISE; PROVIDING FOR A PENALTY OF FIVE HUNDRED DOLLARS, ($500), FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR A SAViNGS CLAUSE; PROVIDING FOR THE EFFECT OF THIS ORDINANCE UPON OTHER ORDINANCES AND RESOLUTIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, all cable operators providing cable service within the City of Denton ("City") are required to obtain a cable franchise; and WHEREAS, Marcus Cable Operating Company, L.L.C., doing business a Charter Communications ("Charter"), currently provides cable service in the City under three sets of agreements generally described as an "Initial Grant," the "1995 Amendments" and the "1999 Amendments" (collectively "Charter Franchise") corresponding to Parts I, II and iii hereof; and WHEREAS, the University of North Texas, has agreed to enter into a Cable Franchise generally based on the Charter Franchise so that it has legal authority to provide cable service in the City on terms generally comparable to those of Charter; and WHEREAS, it is in the public interest for the City to grant University of North Texas a Cable Franchise effective through April 21, 2009 based on the documents incorporated, herein. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON TEXAS HEREBY ORDAINS: SECTION 1. Incorporation of Preamble. The above and foregoing preamble is · incorporated into the body of this Ordinance as if copied, herein, in its entirety. SECTION 2. mutually agree to be this ordinance. Cable Franchise. The City and University of North Texas hereby bound by the terms of this Cable Franchise in ATTACHMENT A to SECTION 3. By its signature below, the University of North Texas, Grantee, hereby agrees that consideration, the receipt and sufficiency of which is hereby acknowledged, has been provided for by the changes made herein, and agrees to be bound by and comply with such changes. The University of North Texas farther represems and agrees that the person signing below on behalf of the University of North Texas is the properly authorized official of that corporation and has the necessary authority to execute this document and further certifies to the City that any necessary resolution or other act extending such authority has been duty passed and is now in full force and effect. SECTION 4. This Ordinance shall be cumulative of all other Ordinances and shall not repeal any of the provisions of such Ordinances except for those instances where there are direct conflicts with the provisions of this Ordinance. Ordinances or parts thereof in force at the time this Ordinance shall take effect and that are inconsistent with this Ordinance are hereby repealed to the extent that they are inconsistent with this Ordinance. SECTION 5. If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council hereby declares it would have passed such remaining portions of this Ordinance despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 6. The City Secretary of the City of Denton is hereby directed to engross and enroll this Ordinance by copying the exact caption and effective date in the minutes of the City Council and by filing, this Ordinance in the ordinance records of the City. SECTION7. In accordance with Section 13.02 of the City Charter, this ordinance shall become effective twenty-one days after final approval. The full text of this ordinance shall be published once each week for two consecutive weeks in the official newspaper of the City, the entire expense of which shall be borne by the University of North Texas. The City Secretary is hereby directed to publish the full text of this ordinance in such official newspaper of the City once each week for two consecutive weeks immediately following the passage of this ordinance on second reading. PASSED AND APPROVED this the day of ,2005. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY EULINE BROCK, MAYOR The City of Denton, Texas, acting herein by its duly constituted authorities, hereby declares the foregoing Ordinance passed on first reading on the __ day of ,2005; and passed on second reading on the __ day of ., 2005; and being finally effective as of the ~ day of ,2005. /si /si Euline Brock, Mayor /s/ Pete Kamp, Council Member /s/ Bob Montgomery, Council Member /s/ Jack Thomson, Council Member Joe Mulroy, Council Member /s/ Perry McNeill, Council Member /s/ Raymond Redmon, Council Member The above and foregoing ordinance read, adopted on first reading and passed to second reading by the following votes, this the ~ day of ,2005, at a regular sessiOn of the City Council. Euline Brock, Mayor, voting ~ Joe Mulroy, CounciI Member, voting ~ Pete Kamp, Council Member, voting __ Perry McNeill, Council Member, voting .__ Bob Montgomery, Council Member voting __ Raymond Redmon, Council Member, voting __ Jack Thomson, Council Member, voting __ The above and foregoing ordinance read, adopted on the second reading and passed by the following votes, this the __ day of ,2005, at a regular session of the City Council. Euline Brock, Mayor, voting ~ Joe Mulroy, Council Member, voting __ pete Kamp, Council Member, voting ~ Perry McNeill, Council Member, voting __ Bob Montgomery, Council Member voting __ Raymond Redmon, Council Member, voting __ Jack Thomson, Council Member, voting_ of ACCEPTANCE WHEREAS, the City Council of the City of Denton, Texas, did on the__ ,2005 enact an Ordinance entitled: ORDiNANCE NO. day AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS GRANTING A CABLE FRANCHISE TO THE UNIVERSITY OF NORTH TEXAS TO CONSTRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF DENTON, TEXAS AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF THIS CABLE FRANCHISE; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR THE EFFECT OF THIS ORDINANCE UPON OTHER ORDiNANCES AND RESOLUTIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, said Ordinance was on the __ day of ., 2005 duly approved and subscribed by the Mayor of said City, and the seal of said City was thereto affixed and attested to by the City Secretary; NOW, THEREFORE, the University of North Texas, hereby in all respects ACCEPTS, APPROVES AND AGREES TO said Ordinance, and the same shall constitute and be a binding contractual obligation of the University of North Texas, and of the City, without waiver of any other remedy by the University of North Texas, does hereby file this, its written acceptance, with the City Secretary of the City of Denton, Texas, in her office. DATED this the day of ., 2005. The University of North Texas By: Title: ATTEST: By: Title: ATTACHMENT A CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS (UNT) March 1, 2005 TABLE OF CONTENTS CABLE TELEVISION FRANCHISE, PART I .............................................................. 5 SECTION I. TITLE ............................................................................................................ 5 SECTION II. PREAMBLE ................................................................................................. 5 SECTION III. DEFINITIONS ............................................................................................ 5 SECTION IV. CABLE TELEVISION FRANCHISE AGREEMENT ......................... 6 SECTION V. POLICE POWER ......................................................................................... 6 SECTION VI. SYSTEM TIMETABLE ............................................................................. 7 SECTION VII. IDEMNIFICATION AND INSURANCE ................................................ 9 SECTION VIII. COMPLAINT PROCEDURE .................................................................. 9 SECTION IX. SECTION X. SECTION XI. SECTION XII. SECTION XIII. SECTION XIV. SECTION XV. SECTION XVI. SECTION XVII. SECTION XVIII. SECTION XIX. SECTION XX. SECTION XXI. SECTION XXII. CONSTRUCTION AND MAINTENANCE ............................................ 10 CONSTRUCTION AND EXTENSION .................................................... 11 CONSTRUCTION BOND REQUIRED .................................................. 11 GOVERNING LAW ............................................................................... 12 CABLE TELEVISION FRANCHISE AGREEMENT TERM ............. 12 RENEWAL PROCEDURE ................................................................... 12 PERFORMANCE REVIEW ................................................................... 12 SECURITY FUND/FULL FAITH and CREDIT of the STATE .......... 12 LIQUIDATED DAMAGES ................................................................. 13 FORFEITURE ..................................................................................... 14 TRANSFERS ......................................................................................... 15 FRANCHISE FEE ................................................................................... 15 RATES ................................................................................................... 16 ACCESS TO SERVICES AND FACILITIES ..................................... 16 SECTION XXIII. SECTION XXIV. SECTION XXV. SECTION XXVI. SECTION XXVII. SECTION XXVIII. SECTION XXIX. SECTION XXX. SECTION XXXI. SECTION XXXII. EMERGENCY OVERRIDE ............................................................... 18 PROGRAMMING MIX ..................................................................... 18 FORCE MAJEURE .............................................................................. 19 NOTICES ............................................................................................ 19 SAVINGS CLAUSE ......................................................................... 20 CONFLICTING ORDINANCES AND RESOLUTIONS ............... 20 FEES AND COSTS ............................................................................ 20 PAYMENT OF TAXES ....................................................................... 21 NON-LIABILITY ............................................................................... 21 WAIVERS ......................................................................................... 21 SECTION XXXIII. COMPLIANCE REQUIRMENTS ...................................................21 SECTION XXXIV. RESERVATION OF RIGHTS ........................................................ 22 PART I. EXHIBIT A. UNT CHANNELS RECOMMENDED LINEUP ........................ 23 CABLE TELEVISION FRANCHISE AGREEMENT, PART II ............................... 24 SECTION I ........................................................................................................................ 24 SECTION II ....................................................................................................................... 24 SECTION III. COMPLIANCE REQUIREMENTS .......................................................... 24 SECTION IV. CONFLICT ................................................................................................ 24 PART II. Exhibit A .......................................................................................................... 25 CABLE TELEVISION FRANCHISE AGREEMENT, PART III ............................. 31 2. 3. 4. 5. Covenants Binding ................................................................................................. 31 Customer Service ................................................................................................... 31 Validity of the Cable Television Franchise Agreement ......................................... 31 The Cable Television Franchise Agreement for Cable Only ................................. 31 Access to Records .................................................................................................. 31 ii o 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. PART iii. EXHIBIT A. Cable Modem, High-Speed Data and Internet Services ........................................ 31 Notification of Rate Increases ................................................................................ 32 Other Matters ......................................................................................................... 32 Institutional Network ............................................................................................. 33 HDTV .................................................................................................................... 36 Leased Access and PEG Channels ......................................................................... 37 Transfer .................................................................................................................. 37 Definitions .............................................................................................................. 38 Compliance Requirements ..................................................................................... 39 Fees and Costs ........................................................................................................ 40 Approval and Acceptance ...................................................................................... 40 Customer Service and Consumer Protection ...................... 41 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Customer Service Standards .................................................................................. 41 Pay Per View .......................................................................................................... 41 Notification ............................................................................................................ 41 Notice of Changes .................................................................................................. 41 Complaint Procedures ............................................................................................ 42 General ................................................................................................................... 42 Telephone Service Standards ................................................................................. 43 Office ..................................................................................................................... 44 Installation Standards ............................................................................................. 44 Installations/Service Calls: ..................................................................................... 44 Service Call Charges .............................................................................................. 45 Service Interruptions: ............................................................................................. 45 Log of Complaints ................................................................................................. 45 iii 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. Bills ........................................................................................................................ 46 Refunds and Credits ............................................................................................... 46 Late Payment for Cable Service ............................................................................ 47 Disconnection ........................................................................................................ 47 Truth In Advertising .............................................................................................. 48 Reports: .................................................................................................................. 48 FCC Technical Standards ...................................................................................... 49 Liquidated Damages - Customer, Service Calls .................................................... 50 Liquidated Damages - Other .................................................................................. 51 Procedure for Assessment of Liquidated Damages ............................................... 51 Payment of Liquidated Damages ........................................................................... 52 Ombudsman ........................................................................................................... 52 City Liaison: ........................................................................................................... 52 Definitions: ............................................................................................................ 52 iv CABLE TELEVISION FRANCHISE AGREEMENT PART I. SECTION T. TITLE. This ordinance shall be known and may be cited as "Cable Television Franchise Agreement." SECTION TT. PREAMBLE. This ordinance was passed after a full, open and public hearing upon prior notice and opportunity of all imerested parties to be heard and upon consideration of the University of North Texas' qualifications, including its legal, financial and technical qualifications. SECTION TTT. DEFINITIONS. For the purpose of Parts T, TT and TTT of this ordinance, and when not inconsistem with comext, words used herein in the present tense include the future, the word "shall" is always mandatory. The captions supplied herein for each section are for convenience only. Said captions have no force of law, are not part of the section, and are not to be used in construing the language of the section. The following terms and phrases, as used herein, shall be given the meanings set forth below: "Cable Ordinance" shall mean Chapter 8 of the Code of Ordinances of the City of Denton, Texas. (2) "City" is the CITY OF DENTON, TEXAS, a municipal corporation under the laws of the State of Texas. (3) "City Council" is the City Council of the CITY OF DENTON, TEXAS, or its designated representatives. (4) "Gramee," "University" or "UNT" means the University of North Texas existing under the laws of the State of Texas, duly qualified and authorized to do business in the State of Texas, and it is the grantee of rights under this Cable Television Franchise Agreement. (5) "Campus" shall mean the land and property of the University of North Texas, located within the City of DeNon. (6) "UNT Facilities" shall mean housing units and other buildings owned by the University of North Texas. (7) "End Poim Connection" shall mean a cable wall outlet used to provide cable services under this agreement. (8) "User" means a person (or in some instances, a location) who receives programming from the cable system, similar to a subscriber to a for profit cable system. As used in this document, a word shall have the meaning set forth in Chapter 8 of the Code of Ordinances of the City of DeNon, Texas (hereinafter, the "Cable Ordinance") at Section 8-2, unless it is apparent from the context that it has a different meaning, or unless such word is specifically defined herein. The term "Gramee" shall refer to the University of North Texas and its successors hereunder. SECTION IV. CABLE TELEVISION FRANCHISE AGREEMENT. There is hereby grained by the City to gramee a Cable Television Franchise Agreemem with the right and privilege to construct, reconstruct, erect, operate and maintain, in, upon, along, across, above, over or under the streets, alleys, easemems, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the City, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the City of a cable television system for the transmission of television signals and other signals, either separately or upon or in conjunctions with any public utility maimaining the same in the City, with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this Cable Television Franchise Agreemem shall and does hereby include the right in, over, under, and upon streets, sidewalks, alleys, easemems, and public grounds and places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipmem necessary to the grantee's cable system and the right to make connections to UNT Facilities and the right to repair, replace, enlarge and extend said lines, equipment and connections. SECTION V. POLICE POWER. Grantee shall, at all times during the term of this Cable Television Franchise Agreement, be subject to all lawful exercise of the police power of the City. The right is hereby reserved to the City to adopt, in addition to the provisions herein comained and any other existing applicable ordinances, such additional applicable ordinances as it shall find necessary in the exercise of its police power; provided that such additional ordinances shall be reasonable, shall not substantially or materially conflict with or alter in any manner the rights granted herein, and shall not conflict with the laws of the State of Texas, the laws of the United States of America, or the rules of the Federal Communications Commission. All terms, conditions, and provisions of the Cable Ordinance shall be deemed to be embodied in this Agreemem and gramee does hereby agree to comply with the terms of said Ordinance while this Cable Television Franchise Agreement is in effect. SECTION VI. SYSTEM TIMETABLE. (a) Within the time period specified in (b) of this section, the grantee shall have completely constructed a Cable System which has the capability of delivering at least sixty (60) video channels over at least 860 MHZ Cable bandwidth (the "Cable System") and the grantee shall use its best efforts to maximize usage of such capacity with non-duplicated video channels. (b) The grantee shall exercise its best good faith efforts to expedite construction of the Cable System as required in subsection above in a sound and economical manner. Subject to the provisions of Section XXV (Force Majeure) hereof, grantee shall meet the following schedule: Submission of all applications for authorizations necessary for construction of the Cable System on or before February 22, 2006. (2) Securing all authorizations necessary to begin initial construction of the Cable System on or before February 22, 2006. (3) The Cable System shall have the capability to transmit video in one direction. (4) Grantee shall have completed the installation of alternative (standby) power sources at the headend on or before February 4, 2006. Thereafter, grantee shall maintain such power sources so that all Cable System and work lines and sub-stations may be maintained at full power for at least two (2) hours beyond the time when normal power sources serving the Cable System have ceased. (5) Grantee shall provide the capability for insertion of video programming and other video, voice and data messages into the Cable System from the following points in the City or other locations mutually agreed upon by the City and the grantee: Municipal Building, 215 E. McKinney; Central Fire Station, 332 E. Hickory; Service Center, 901 Texas Street; Police Station, 601 E. Hickory; Library, 502 Oakland; Library 3020 N. Locust; Library, 3228 Teasley Lane and Civic Center, 321 E. McKinney. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (6) In addition to the above-designated point for insertion of video programming and other video, voice and data messages into the Cable System described above, grantee shall provide a central insertion point for the Cable System within the City, which shall be one of the points described above and which shall include signal switching and processing equipment as is reasonably required to allow those utilizing the insertion points listed above to transmit to the other insertion points of the Cable System, or to transmit to all Users, at the City's option. Prior to designating the central insertion point for the Cable System within the City, grantee shall obtain the prior written consent of the City Manager to such designation. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (7) Gramee shall provide and maimain five access channels as follows: (a) A local govemmem channel to be administered by the City or its designee. (b) An education channel to be administered by the DeNon Independent School District or its designee (c) A higher education channel to be administered by Texas Woman's University or its designee. (d) A higher education channel to be administered by the University of North Texas or its designee. (e) A public access channel. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (8) Grantee shall provide and maintain at its expense all lines, facilities and equipmem (such as modulators and coders/decoders) necessary for it to receive access programming at each of the studios for the five access channels described above and simultaneously distribute such programming on the cable system. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (9) Unless otherwise agreed by City in writing, the local govemmem channel shall be on channel 26; the education channel shall be on channel 24; the higher education channel for Texas Woman's University shall be on channel 23; the higher education channel for the University of North Texas shall be on channel 22; and the public access channel shall be on channel 25. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (c) The gramee has submitted its drawings and specifications for the Cable System to the City. The City assumes no liability or responsibility whatsoever for the design or construction of the Cable System by virtue of its receipt of such drawings and specifications, it being understood that the City's approval of such drawings and specifications shall not be required. The gramee has also submitted a detailed plan of action for the accomplishmem of the Cable System, including, without limitation, a timeline which will permit the City to monitor the grantee's progress toward completing the Cable System in a timely fashion. SECTION VII. INDEMNIFICATION AND INSURANCE. UNT shall possess and use the right of way for cable services at UNT's sole risk. Neither UNT, nor Denton, shall have any obligation to indemnify the other party hereto in the case of any loss or liability arising from the use of the right of way for cable services. SECTION VIII. COMPLAINT PROCEDURE. 1. GraNee shall provide several local offices open 24 hours per day as follows: A. UNT will take User service complaints at either the front desk of a residence hall or at a centralized location in Crumley Hall ("CeNralized Location"). Either the residence hall front desk or the Centralized Location, which shall act as general User service centers, shall be staffed twenty-four hours per day, seven days per week. B. Users needing service will report such need to either the front desk or the Centralized Location. The staff member working the desk or the CeNralized Location will log such request in the work order log book and will also send the work order electronically to UNT Housing MaiNenance DepartmeN (940-565-4711) where the order will be priNed out. Orders shall be generally worked within 24 hours with the exception of weekends when the order would be worked the following Monday. UNT Housing MaiNenance will check first for issues with the coaxial cable, the connectors, or the User's TV set. C. Users may pick up and drop off any converters, remotes or other Grantee supplied equipment at either the front desks or the Centralized Location twenty-four hours per day, 7 days per week. 2. Complain procedure A. Users who believe they have not received timely or adequate service can return to either the front desk or the Centralized Location and report such whereupon the staff shall contact the Administrative Services Officer. Users can also contact this staff member directly or UNT's Director of Housing. Users will be advised of the complain procedure at least once per year in writing and will be informed as to whether the front desk of their residence hall or the Centralized Location should be used. B. If the operator of the satellite system providing signals to the Cable System does not provide a clear signal, complains in that regard shall be referred to such operator who shall immediately correct same. 3. General UNT employees who eNer User rooms for work requests will wear ideNifying badges and will leave a notice of entry slip to record their time, date, and purpose of entry. Users do not have to be in their rooms for the workers to enter. B. UNT Housing will give advance notice to Users as a courtesy any time the system is taken down for emergency maintenance or repairs to the entire system. It is anticipated that routine maintenance will be done during summers and holidays so Users' service generally will not be interrupted. C. UNT Housing will train desk staff regularly on expected service standards. D. Grantee shall, not less than once a year, provide information to Users on the Cable System with a complete list of service offerings, options, prices (if applicable), credit policies and procedures for Users to address service complaints associated with the Cable System. 4. Telephone service. A. Grantee shall establish and maintain sufficient telephone lines and personnel so as to not delay unreasonably the answering of all telephone calls. The City, upon receipt of documented complaints from more than ten Users during a single business day between the hours of 8:30 a.m. and 6:00 p.m. regarding their inability to reach a live, personal representative of grantee during non-emergency, non-system outage periods, may seek liquidated damages as provided in Section 8-128 of the Cable Ordinance. SECTION IX. CONSTRUCTION AND MAINTENANCE. (a) All structures, lines and equipment erected by grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, easements, and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners, and grantee shall comply with all reasonable, proper and lawful ordinances of the City now or hereafter in force. Existing poles, posts, conduits, and other such structures of any electric power system, telephone company, or other public utility located in the City shall, when possible, be made available to grantee for leasing or licensing upon reasonable terms and rates and shall be used to the extent practicable in order to minimize interference with travel and avoid unnecessary duplication of facilities. Poles owned by City shall be made available to grantee for its use under the terms, conditions and provisions of a separate Pole Rental Agreement to be negotiated between the parties. (b) Grantee shall not open or disturb the surface of any street, sidewalk, driveway or public place that is not owned by grantee for any purpose without first having obtained a permit to do so in accordance with the applicable ordinances, including, but not limited to, Chapter 21 of the Code of Ordinances of the City of Denton, Texas, except that grantee shall not be required to post a bond prior to commencing such disturbance. Grantee specifically agrees to pay any fees in connection herewith required by applicable City Ordinances. In case of any disturbance by the grantee of City-owned pavements, sidewalk, driveway, or other surfacing, grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as before said work was commenced. 10 (c) In the event that at any time during the period of this Cable Television Franchise Agreement the City shall elect to alter or change any City-owned street, alley, easement, or other public way requiring the relocation of grantee's facilities, then in such event, grantee, upon reasonable notice from the City, shall remove, relay, and relocate the same at its own expense. (d) Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines to permit the moving of the building. The expense of such temporary removal shall be paid by the person requesting the same, and grantee shall have the authority to require such payment in advance. (e) All poles, lines, structure or other facilities owned by grantee in, on, over and under the streets, sidewalks, alleys and easements and public grounds or places of the City shall be kept by grantee at all times in a safe and substantial condition. SECTION X. CONSTRUCTION AND EXTENSION. (a) Grantee has submitted a construction plan that includes system design details, equipment, specifications and design performance criteria. The plan also includes a map of the entire authorized areas of service and the mandated areas of service, and the dates by which service will be provided to each area. The areas within the authorized area where the cable system is currently available, including a schedule of construction for each year that construction or reconstruction is proposed. (b) In regards to the mandated areas of service, grantee does not intend to provide cable services outside of the UNT Campus. If grantee desires to provide cable service outside of the UNT Campus, within the City of Denton, grantee shall be required to receive permission from the City of Denton prior to providing any cable service outside of the UNT Campus, and this agreement shall be amended to reflect the terms and conditions of the provision of cable service by grantee. (c) Nothing in this section shall prevent the grantee from constructing or reconstructing the system earlier than planned. However, any delay in the system construction beyond the times specified in the plan report timetable must be submitted to and approved by the City Council. (d) Grantee shall construct, install, operate and maintain its system in a manner consistent with any construction standards submitted by grantee as a part of its application. Consistent with State law, grantee agrees to comply with applicable codes, and any supplements or amendments thereto, including any codes referenced in its application. SECTION XI. CONSTRUCTION BOND REQUIRED. Construction Bond shall not be required. The City recognizes the full faith and credit of the State of Texas as sufficient for the construction bond required. 11 SECTION XII. GOVERNING LAW. To the extent applicable to grantee, this Cable Television Franchise Agreement is governed by and subject to all applicable provisions of the Communications Act of 1934, as amended through 1996; regulations promulgated by the Federal Communications Commission pursuant thereto prior to acceptance by grantee of this Cable Television Franchise Agreement as provided in Part III, Section 26; as well as the laws of the State of Texas, not inconsistent therewith. SECTION XIII. CABLE TELEVISION FRANCHISE AGREEMENT TERM. This Cable Television Franchise Agreemem shall take effect and be in full force from and after acceptance by grantee as provided in Part III, Section 26, and the same shall continue in full force and effect umil four (4) years from the effective date. Notwithstanding the foregoing, gramee reserves the right to terminate this Agreemem without penalty with sixty (60) days written notice to the City if grantee ceases to provide cable services under this Agreement, or in accordance with applicable laws. SECTION XIV. RENEWAL PROCEDURE. This Cable Television Franchise Agreemem shall be subject to renewal in accordance with the terms and conditions of Section 626 of the Cable Communications Policy Act of 1984, 47 U.S.C. 546, as amended through 1996. SECTION XV. PERFORMANCE REVIEW. The parties agree that the City shall have the right to conduct a performance evaluation with the grantee and the Users relating to this Cable Television Franchise Agreement. The grantee agrees to incur the costs of the evaluation and the City's ascertainment of the current cable-related needs and interests of the Users; provided, however, that the total payment by the gramee shall not exceed Twenty-Five Thousand ($25,000.00) Dollars. This sum shall be adjusted on the basis of the proportion that the then all Urban Consumer Price Index (CPI-U) for the Dallas/Fort Worth Standard Metropolitan Statistical Area bears. The City shall provide grantee with the names of three nationally recognized independent cable television consulting firms and the grantee, together with the City, shall select one of the three consultants to perform the evaluation. Grantee agrees that such costs are in addition to and not to be deducted from the franchise fees due the City. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. SECTION XVI. SECURITY FUND/FULL FAITH AND CREDIT OF THE STATE. (a) UNT shall not be required to pay to DeNon a security deposit. The City recognizes the full faith and credit of the State of Texas as security under this agreemem. (b) To the extem allowed by applicable law, the City Manager may make demand upon the State of Texas in the event of any of the occurrences set forth in this Section and in 12 Section 8-128 (Liquidated Damages), of Chapter 8, Cable Television, of the Code of Ordinances of the City of Demon, Texas. Within ten (10) days after notice to it that any amoum has been withdrawn or paid out, as is appropriate, from the security fund deposited pursuam to subdivision (a) of this section in accordance with Section 8-128 (Liquidated Damages). (c) Examples of a basis for drawing upon the security fund include, but are not limited to the following: (1) failure of the grantee to pay to the City any taxes after a written notice of delinquency in accordance with the prompt payment act. (2) failure of the grantee to pay to the City after a written notice on any amoums due and owing the City by reason of the indemnity provision in accordance with the prompt payment act. (3) failure by the gramee to pay to the City, any liquidated damages due and owing to the City pursuant to Section 8-128 of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (4) failure by the grantee to pay to the City any amounts due pursuant to Section 8-57(g) of the Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (5) failure by the grantee to pay, after a written notice, any amounts owing as franchise fees pursuam to this Cable Television Franchise Agreement, in accordance with the prompt payment act. (d) The rights reserved to the City with respect to making demand upon the State are in addition to all other rights of the City whether reserved by this comract or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the City may have. SECTION XVII. LIQUIDATED DAMAGES. To the extem allowed by law, the parties agree to the liquidated damages specified in Section 8-128, Liquidated Damages of Chapter 8, Cable Television, of the Code of Ordinances of the City of Denton, Texas, as adopted on the 1st day of November, 1988, but without prejudice to any other remedies available to the parties hereto to the extent permitted by law. The parties agree that the liquidated damages set forth in the ordinance may be greater or less than the City's actual damages and such damages represent the best estimate by the parties hereto as the likely extent of such damages. The liquidated damages are not intended to constitute a penalty, but rather, are designed to save the parties from having to engage in costly litigation with regard to the extent of such damages. In addition to the amounts set forth in the Cable Ordinance, the following liquidated damages shall apply: 13 (a) per day. For breach of any service standards adopted pursuant to Section VIII, hereof $200 (b) If the City Manager determines that the grantee is liable for liquidated damages, he shall issue to the grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis for the assessment, and shall inform the grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council. If the grantee desires a hearing before the City Council, it shall send a written notice of appeal by certified mail to the City Manager within ten (10) days of the date on which the City sent the notice of intention to assess liquidated damages. In the event the City Manager receives such a notice from the grantee, the hearing on the grantee's appeal shall be held within thirty (30) days of the date on which the City sent the notice of intention to assess liquidated damages unless mutually extended by the City and the grantee. After such hearing, and based on the facts before it, if the City Council finds (a) that an extension of time or other relief should be granted, or (b) that there was never a violation, then it shall waive the City Manager's assessment of liquidated damages. If the City finds that the facts warrant the assessment of liquidated damages, or any portion thereof, the City may at any time thereafter draw the amount of liquid damages from the security fund established pursuant to Section 8-128 of the Cable Ordinance up to the full amount of accrued liquidated damages to such date. In considering whether or not to waive all or a portion of any liquidated damages assessable against the grantee hereunder, the City shall consider, without limitation, the number, frequency and magnitude of any prior breaches of this Agreement by the grantee and the speed with which the grantee cured breach or breaches. SECTION XVIII. FORFEITURE. If grantee should violate any of the terms, conditions or provisions of this Cable Television Franchise Agreement or if grantee should fail to comply with any reasonable provisions of any ordinance of the City regulating the use by grantee of the streets, alleys, easement or public ways of the City, and should grantee further continue to violate or fail to comply with the same for a period of thirty (30) days after grantee shall have been notified in writing by the City to cease and desist from any such violation or failure to comply so specified, then grantee may be deemed to have forfeited and annulled and shall thereby forfeit and annul all the rights and privileges granted by this Cable Television Franchise Agreement; provided, that such forfeiture shall be declared only by written decision of the City Council after following the procedures set forth in Section 8-59 of the Cable Ordinance and an appropriate public proceeding before the City Council affording grantee due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply; and provided further that the City Council may, in its discretion and upon a finding of violation or failure to comply, impose a lesser penalty than forfeiture of this Cable Television Franchise Agreement or excuse the violation or failure to comply upon a showing by grantee of mitigating circumstances. Grantee shall have the right to appeal any finding of violation or failure to comply and any resultant penalty to or seek relief in any court of competent jurisdiction. In the event of any determination by the City to revoke this Cable Television Franchise Agreement, such a determination shall be stayed during the pendancy of any judicial review thereof. 14 SECTION XIX. TRANSFERS. All of the rights and privileges and all of the obligations, duties, and liabilities created by this Cable Television Franchise Agreemem shall pass to and be binding upon the successors of the City and the successors and assigns of gramee; and the same shall not be assigned or transferred without the prior written approval of the City Council, which approval shall be sought and obtained in accordance with Section 8-62 of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas. While this Cable Franchise Agreemem is in effect, grantee specifically agrees to comply with the provisions of said Section 8-62 of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas. SECTION XX. FRANCHISE FEE. In consideration of the terms of this Cable Television Franchise Agreement, effective twenty-one days after final approval, and when the cable system is activated, grantee agrees to pay to the City a sum of money as a franchises fee as described herein. In order to ensure that this Franchise is competitive neutral and not discriminatory as to other cable operators in the City, the City requires, and the gramee agrees, the gramee shall pay a franchise fee equal to $0.455 per momh per each End Poim Connection providing service during the term of this Franchise. The gramee shall pay to the City the franchise fee as calculated in accordance with this section in quarterly installmems within forty-five (45) days after March 30, June 30, September 30 and December 31 of each year the franchise fee attributable to the preceding quarter. Included with such payment will be a report on the number of End Point Connections providing service on a momhly basis by street address and room number. Such franchise fee is a 5% fee based upon a presem estimated retail value of the cable services of $9.10 per End Poim Connection when provided in bulk. The $0.455 charge is 5% of the retail bulk value of the cable services provided by the gramee. Further the City may adjust the franchise fee no more than once every two years to reflect any increases in the charges for such services by the other cable providers in the City providing similar services with 30 days' notice to grantee. In the event the grantee provides additional services, the City reserves the right to reasonably estimate the retail market value of those services based upon the rates of the gramee and other cable providers in the City of similar services and adjust this franchise fee to be 5% of the value of those services accordingly with 30 days' notice to Grantee. Examples of such services includes, but is not limited to the following: (a) Revenue from all charges for services provided to Users of emertainmem and nonentertainment services, including leased access fees; (b) Revenue from all charges for the insertion of commercial advertisemems, including but not limited to launch fees, upon the cable system; and (c) Revenue from all charges for the installation, connection and reinstatement of equipment necessary for the utilization of the cable system and the provision of User and other services. 15 SECTION XXI. RATES. The grantee shall not charge a fee for cable services to the Users of the cable system separate from the fees it charges for housing. If applicable and to the extent permitted by federal and state law, the City may regulate the following rates, fees and charges: (a) (b) (c) Rates for the provision of basic cable service to Users whether residential or commercial, including multiple tiers of basic cable service. Rates for the initial installation or the rental of one set of the minimum equipment, which is necessary for the Users' receipt of basic cable service. Any other rates for any type of services delivered by the grantee that may become subject to local regulation. SECTION XXII. ACCESS TO SERVICES AND FACILITIES. Grantee shall provide the minimum range of services required from time to time by the FCC as its regulations presently exist or may hereafter be amended including, without limiting the foregoing, public, educational and governmental use channels in accordance with the following conditions: (a) Grantee shall provide and maintain five channels for public programming, educational programming and governmental programming as set forth in Sections VI (b)(7) and VI (b)(8) above. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (b) The public access channel described in Section VI (b)(7)(e) above shall be made available for non-commercial use to qualifying applicants without charge when requested all in accordance with the rules hereinafter mentioned. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (c) Rules shall be established by the cooperative effort of City and the grantee regarding access programming, priority of use for the access channel, prohibition of lottery information, obscene or indecent matter, and permitting public inspection of the complete record of names and addresses of all persons or groups requesting access time. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (d) Should a dispute arise between the user of an access channel and the grantee relative to the quality of the audio or visual signal, at the request of either, the dispute will be submitted to an independent engineer to be jointly selected by City and grantee. The party requesting that such testing be performed shall be required to pay for the cost of testing and analysis performed by the engineer, unless the engineer shall find that there is a distortion of signal quality. If a distortion is found, the party responsible for causing the distortion shall pay the cost of testing. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. 16 (e) Subject to Section 8-101 of the Cable Ordinance, the grantee agrees to provide reasonable equipment to be used by access cable casters with the aid of a technical and production staff to be provided by the cable operator. Equipment that can store programs for later showing shall be provided. In addition, grantee shall make available a centrally located studio to all access users on a first-come, first-serve basis. Grantee shall provide, at a minimum, the production equipment and facilities designated in "Part I, Exhibit B." All equipment shall be maintained in good working order by grantee and shall be replaced as needed, consistent with good operating practice. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (f) Grantee agrees to maintain a local programming studio and shall provide adequate staffing and equipment for the local programming studio, and for training of the public in the use of production equipment. Grantee shall keep a log of inquiries by citizens requesting such training and shall conduct free training sessions in use of cablecasting equipment cablecasting techniques not less than once each three months during the term hereof. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (g) Grantee also agrees to provide an instructor and the facilities to train, without charge, once per year, potential access users through sessions offered through the Denton Independent School District. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (h) Grantee shall establish rules and rates if necessary, to ensure that the studio is available in an equitable manner provided that grantee shall not, charge for use of the public and educational access channels unless City has approved the charging of the proposed. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (i) As required by applicable law, the parties hereby incorporate by reference the provisions of 47 U.S.C. 532. Applicable provisions are incorporated herein to assure that the widest possible diversity of information sources are made available to User from the Cable System in a manner consistent with the growth and development of the Cable System. User may add additional cable channels to the Cable System in order to comply with the requirements of 47 U.S.C. 532 (j) Grantee shall undertake any and all construction installation necessary to keep current with the latest technological and economically feasible developments in the state-of-the- art for cable television, whether with respect to increasing channel capacity, developing new services, and instituting two-way service or any other state-of-the-art technology. Further, grantee specifically agrees to comply with Section 8-163 of the Cable Ordinance. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. 17 SECTION XXIII. EMERGENCY OVERRIDE. Grantee shall provide and maintain the equipment necessary for the City to maintain an emergency alert system to override, by any telephonic means, the audio and/or video signal to transmit a message regarding a bona fide emergency over all cable video channels simultaneously. At City's option such message shall be transmitted either by a text crawl across the bottom of the screen or by audio override and video blanking on all channels. For telephonic activation of the emergency alert system, grantee shall provide City with the ability to activate the system from any telephone but with an appropriate security code and procedures. Grantee shall provide appropriate training to City personnel as may be necessary to operate the systems, equipment and facilities described in this Section. Grantee shall designate a channel, which will be used for emergency broadcasts. Grantee shall provide a remote data terminal, telephone lines, modems, cables and any other items needed to adequately supply this service. Such equipment shall be maintained at a location designated by City. SECTION XXIV. PROGRAMMING MIX. (a) Grantee agrees to provide programming that at least substantially maintains the mix of distinct and separate channels listed in Exhibit A. In accordance with the Cable Act, the grantee shall, for the term of this Agreement, substantially maintain at least the mix, quality and level of programming set forth in Exhibit A. (b) In addition to the programming mix indicated above, grantee will use the upgraded system to provide a wide range and assortment of optional programming services. Grantee shall provide, at a minimum, the following additional services: provision of an additional full channel space for films and cultural entertainment programming; (2) provision of an additional full channel space for children's entertainment programming; (3) addition of a full channel space for documentary, public broadcasting programming; (4) addition of a full channel space devoted to weather information service; (5) addition of a Pay-Per-View Channel. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requirements) are met. (c) Grantee agrees to produce a minimum of 400 hours of local origination programming annually including but not limited to NTTV productions. 18 SECTION XXV. FORCE MAJEURE. In the event the grantee's diligent performance of any of the terms, conditions, obligations or requirements of this agreement is prevented or impaired due to any cause beyond its reasonable comrol which was not reasonably foreseeable to the parties hereto, such inability to perform shall be deemed to be excused for the period of such impairmem, and no penalties or sanctions shall be imposed. Before invoking this section, the grantee must have exercised good faith in attempting to perform such terms, conditions, obligations or requirements. Causes beyond the grantee's reasonable control and not reasonably foreseeable to the parties hereto shall include, without limitation, labor unrest and strikes. Upon its best good faith efforts to obtain all authorizations on an expedited basis, the gramee shall also be excused for time delays in construction requirements in Section VI which are caused by unreasonable delays on the part of utility companies or the City in issuing licenses, permits or authorizations for poles and conduits or other authorizations necessary to continue construction. Where the grantee cannot obtain access to any individual's property, after due diligence and a good faith effort by the gramee to obtain access to such property, compliance with the terms of this agreement shall be excused by the City as to that individual and the consequemial effects thereof only, and only for such period as the property is inaccessible. Where the cause beyond the gramee's comrol is either an act of God or civil emergency, an inability to perform during such period shall not be an independem ground for termination of this agreement. SECTION XXVI. NOTICES. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder by any party to another shall be in writing and shall be sufficiemly given and served upon the other party, immediately if delivered personally or by telex or telecopy (provided with respect to telex and telecopy that such transmissions are received on a business day during normal business hours), on the second business day after dispatch if sent by first class mail, registered or certified, return receipt requested, postage prepaid and addressed as follows: The City: City Manager City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 Public Information Officer City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 City Attorney City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 19 The Grantee: University of North Texas Office of the Vice Presidem of Finance and Business Affairs P.O. Box 310500 Demon, TX 76203 SECTION XXVII. SAVINGS CLAUSE. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by a federal or state court or administrative or governmemal agency of competem jurisdiction, specifically including the Federal Communications Commission, such portion shall be deemed a separate, distinct and independem provision, and such holding shall not affect the validity of the remaining portions thereof. SECTION XXVIII. CONFLICTING ORDINANCES AND RESOLUTIONS. In the event of any conflict between the terms of Parts I, II, and III this Cable Television Franchise Agreemem, Part II of this Cable Television Franchise Agreemem (including exhibits thereto) shall prevail over Part I, and Part III of this Cable Televison Franchise Agreement (including exhibits thereto) shall prevail over Parts I and II. In the evem of any conflict between the terms of this Cable Televison Franchise Agreemem and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail, subject to the Reservation of Rights in Part I, Section XXXIV. SECTION XXIX. FEES AND COSTS. (a) The gramee shall provide to the City a lump sum gram of $4,000 for capital facilities for the PEG Channels on the dates and in the amoums set forth below. City shall allocate such grants among the entities administering the PEG Channels as it determines is in the public imerest. The gram will be paid upon acceptance of this Cable Television Franchise Agreement by the grantee. The terms of this section will be activated when the terms in Part I, Section XXXIII (Compliance Requiremems) are met. (b) The gramee will reimburse the City all its costs, which exceed the initial $5,000, in association with the preparation and award of this Cable Television Franchise Agreement, including publication costs and costs of consultants and attorneys, not to exceed $1,500. In addition, the grantee will reimburse the City all its costs in association with the preparation and award of a Cable Television Franchise Agreemem Renewal, including publication costs and costs of consultants and attorneys. The preceding reimbursement requirement applies whether a Cable Television Franchise Agreemem is executed. (c) The gramee will remit its check for such costs within thirty (30) days of the City invoicing the grantee for same. Reimbursement of costs under this provision shall not be considered a paymem of franchise fees, shall not reduce the franchise fee otherwise payable and shall not be passed through to Users. Grantee specifically waives any claim to the contrary. 20 SECTION XXX. PAYMENT OF TAXES. If required by law, the grantee covenants and agrees that it will pay and discharge, or cause to be paid and discharged, in timely fashion all payments in lieu of taxes, service charges, assessments, utility fees, user fees and other governmental charges which may lawfully be imposed upon the grantee with respect to the grantee or the cable system or any portion thereof or relating thereto, or upon the revenues and income therefrom and will pay all lawful claims for labor, material and supplies which, if unpaid, might become a lien or charge upon any of said properties, revenues or income or which might impair the security interest granted by this agreement or the value of the cable system or the grantee; provided that nothing in this section shall require the grantee to make any such payment so long as the grantee in good faith shall contest the validity thereof. SECTION XXXI. NON-LIABILITY. The City shall not be liable to the grantee or any other person or entity for death or personal injury or for loss, damage or destruction of property in, on or about the cable system or any part thereof by or from any cause whatsoever other than the City's own negligence or willful misconduct, nor shall the City be liable in any way or regard to the grantee or to any of grantee's affiliates, officers, directors, members, agents or employees if any claim is asserted against the grantee by any taxing authority or other entity as the result of any election or decision which the grantee may make or may have made with respect to the cable system for purposes of filing federal or state income or franchise tax returns or making any other type of filing whatsoever. SECTION XXXII. WAIVERS. No waiver by either Party hereto of any breach, default or violation of the terms, covenants or conditions hereof to be performed, kept and observed by grantee shall be construed to be or act as a waiver of any subsequent default of any of such terms, covenants and conditions. SECTION XXXIII. COMPLIANCE REQUIREMENTS When grantee's cable End Point Connections exceed Five Thousand (5,000) within the City of Denton, the grantee will be required to comply with the below listed sections, or parts of sections, upon request from the City. Section VI, SYSTEM TIMETABLE, (b), (5), (6), (7) (8) and (9). Section XV, PERFORMANCE REVIEW. Section XXII, ACCESS TO SERVICES AND FACILITIES, (a), (b), (c), (d), (e), (f), (g), (h), and (j). Section XXIV, PROGRAMMING MIX, (b). Section XXIX, FEES AND COSTS, (a). 21 SECTION XXXIV. RESERVATION OF RIGHTS (a) Submission of an application for a cable franchise and acceptance of this Cable Television Franchise Agreement by the grantee, does not waive any rights, privileges and immunities grantee has, in law or in equity, as a public university authorized to operate under Chapter 105 of the Texas Education Code and operating as an arm of the State of Texas. Further, in submitting the application for a franchise, accepting the award of a franchise from the City, and entering into this Cable Television Franchise Agreement, grantee is neither expressly nor implicitly consenting to the jurisdiction of the City or to its ordinances notwithstanding any contrary term or clause included in this Cable Television Franchise Agreement. In the event of a contradiction between this contractual provision and any other contractual provision included herein, this provision shall take precedence. (b) Grantee reserves the right to contest the applicability of the City's Charter and any or all of its ordinances in the future and also specifically reserves the right to contest the premise that it is required to obtain a franchise from the City. In submitting an application for a cable franchise and entering into this Cable Television Franchise Agreement under protest, grantee is not in any way conceding or establishing a precedent that would make City Ordinances applicable to grantee as a public university authorized to operate under Chapter 105 of the Texas Education Code and operating as an arm of the State of Texas and this application should not be construed in such a manner by any party. Such interpretation is expressly denied by grantee and the University of North Texas System. (c) Although Grantee may contest the applicability of the City Charter or the premise that it is required to obtain a franchise from the City, Grantee shall comply with this Cable Television Franchise Agreement unless and until relieved of the obligation to do so by order of a court of competent jurisdiction. Further, Grantee shall be relieved of complying with this Cable Television Franchise Agreement in the event that Grantee's continuing obligation under this Agreement would be in violation of or would not be required by FCC regulation, rule or order: state or federal law, regulation or rule; Texas Attorney General's Opinion; or court decision issued in the State of Texas, 5th circuit court opinion or U.S. Supreme Court decision. In the event that Grantee is relieved from compliance hereunder, then Grantee may terminate this Cable Television Franchise Agreement without penalty with written notice to the City. Here is what I would like to replace the paragraph: Although Grantee may contest the applicability of the City Charter or the premise that it is required to obtain a franchise from the City, Grantee shall comply with this Cable Television Franchise Agreement unless and until specifically relieved of the obligation to do so by order of a court of competent jurisdiction, FCC regulation, rule or order, state or federal law, regulation or rule, Texas Attorney General's opinion. Grantee shall notify the City in writing if Grantee is relieved by order of a court of competent jurisdiction, FCC regulation, rule or order, state or federal law, regulation or rule, Texas Attorney General's opinion. The City may elect to pursue its remedies under applicable law. 22 Exhibit A UNT channels Recommended lineup 1. IND- KDTN 2. PBS - KERA 3. CBS - KTVT 4. ABC - WFAA 5. NBC - KXAS 6. WB - WKAF 7. U PN - KTXA 8. FOX- KDFW 9. UNI - KUVN 10.TMO - KXTX 11 .TFT - KSTR 12.ND - KFWD 13.1ND - KDFI 14.A& E 15.Bloomberg 16.BET 17.Boomerang 18.Cartoon Network 19.CNN 20.CNN Headline News 21 .Comedy Central 22.CSPAN 23.E!Entertainment 24Fox News 25.FX 26.History 27.Learning Channel 28.Lifetime 29.MTV 30.MTV2 31 .Nickelodeon 32.Sci-Fi 33 .TBS 34 .TNT 35.TV Land 36.USA 37.VH1 38.Weather Channel 39.ESPN 40.ESPN2 41 .ESPN News 42.ESPN Classic 43.Fox Sports Net 44.Fox Sports World 45.Jade East 46.Jade World Super Channel 47.Chinese Movie Channel 48.CCTV-4 49.BBC America 50.News World International 51 .Trio 52.1FC 53.Bravo 54 .WE 55.Hallmark 56.Lifetime Movie Network Replacement Channel Options: College Sports Television Spike 23 Cable Television Franchise Agreement PART II. SECTION I. This Part II relates to the Cable Television Franchise Agreement granted by the City of Demon ("City") in Part i of this agreemem, as amended and supplememed by Part ii and Part iii of this agreement. The foregoing Part i, this Part ii and the following Part iii are hereinafter referred to collectively as the "Cable Television Franchise Agreemem." A) To the extent allowed by law, execution by grantee of the acceptance referred to in Part iii, Section 26 of this Ordinance, which includes accepting the agreement attached as Exhibit A to this Part ii, including, without limitation, grantee's agreement to pay liquidated damages not less than $4,000 for failure to comply with customer service standards in accordance with Section D1 of the agreement that is attached as Exhibit A to this Part ii, including, without limitation, the following conditions: Gramee will provide the capability for insertion of video programming and other video, voice, and data messages into the cable system at the poims in the City in accordance with the terms required under Section Vi (b) (6) of Part i of the Cable Television Franchise Agreemem, and will comply completely with the above section of the Cable Television Franchise Agreement. The terms of this section will be activated when the terms in Part ii, Section iii (Compliance Requiremems) are met. SECTION II. Grantee may, at any time and from time to time, assign or grant or otherwise convey one or more liens or security interests in its assets, including its rights, obligations and benefits in and to the cable television system and Cable Television Franchise Agreement, to any lender providing financing to grantee. Any assignment or transfer by a lender or as a result of a foreclosure will require the City's consem as provided in the Cable Television Franchise Agreement. SECTION III. (COMPLIANCE REQUIREMENTS) When gramee's End Poim Connections exceed Five Thousand (5000) within the City of DeNon, the gramee will be required to comply with the below listed sections, or parts of sections, upon request from the City. Part ii, Section i, (A), (1). Part ii, Exhibit A, Section E, Service Equipment for Public Facilities. Part ii, Exhibit A, Section J, Other Provisions, (1). SECTION IV. (CONFLICT) In the event of any conflict between the terms of Parts I, II, and iii this Cable Television Franchise Agreement, Part ii of this Cable Television Franchise Agreemem (including exhibits thereto) shall prevail over Part i, and Part iii of this Cable Television Franchise Agreemem (including exhibits thereto) shall prevail over Parts i and ii. in the event of any conflict between the terms of this Cable Television Franchise Agreement and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail, subject to the Reservation of Rights in Part i, Section XXXiV. 24 PART II EXHIBIT A A. The promises, covenants, and conditions contained herein inure to the benefit of the City and are binding on grantee. Bo Customer Service. 1. As required by applicable law, Grantee will comply with the customer service rules of the FCC as presently in effect, 47 CFR § 76.309. Grantee's compliance shall be measured and enforced as follows: ao For the purpose of such rules "normal business hours" therein are deemed to be 8:30 AM to 5:30 PM Monday through Friday. bo Transfer to or answering by a voice mail system (or other automated response system) does not constitute answering "by a trained customer representative" under § 76.309(c)(ii) or analogous provisions of such rules. Co Within 20 business days of the close of each calendar quarter (or monthly, if the City requests same), grantee will provide the City with a report in such form as the City and grantee may reasonably agree, setting forth on a consistent basis, fairly applied, grantee's performance as compared to such standards, including in particular as compared to the standards for telephone answer time, busy signals, standard installations, service interruptions, appointment windows, refunds and credits. do Such reports shall show service telephone calls, installations, service interruptions, and appointment windows. eo Such reports shall show grantee's performance including and excluding any periods of abnormal operating conditions, and if grantee contends that any such abnormal conditions occurred during the reporting period in question, they shall also describe the nature and extent of such conditions. UNT will take User service complaints at either the front desk of a residence hall or at the Centralized Location. Either the residence hall front desk or the Centralized Location, which shall act as general User service centers, shall be staffed 24/7. o Users needing service will report such need to either the front desk or the Centralized Location. The staff member will log such request in the work order log book and will also send the work order electronically to UNT Housing Maintenance Department (940-565-4711) where the order will be 25 printed out. Orders are generally worked within 24 hours with the exception of weekends when the order would be worked the following Monday. UNT Housing Maintenance will check first for issues with the co-axle cable, the connectors, or the User's TV set. Users who believe they have not received timely or adequate service can return to either the front desk or the Centralized Location and report such whereupon the staff will contact the Administrative Services Officer. Users can also contact this staff member directly. Beyond this person, UNT's Director of Housing can be reached should a complain not be rectified. Users will be advised of the complain t procedure at least once a year in writing and will be informed as to whether the from desk for their residence hall or the Centralized Location should be used. o Issues beyond connectivity which UNT Housing Maimenance will investigate and repair will be referred to (use title instead) who operates the satellite system and is responsible for a clear signal reaching all connections. o UNT employees who enter User rooms for work requests will wear idemifying badges and will leave a notice of emry slip to record their time, date, and purpose of entry. Users do not have to be in their rooms for the workers to enter. o UNT Housing will give advance notice to Users as a courtesy anytime the system is taken down for emergency maintenance or repairs to the entire system. It is anticipated that routine maintenance will be done during summers and holidays so Users' service generally will not be imerrupted. 8. UNT Housing will train staff regularly on expected service standards. Grantee shall, not less than once a year, provide information to Users on the Cable System with a complete list of service offerings, options, prices, and credit policies associated with the Cable System, if applicable. 10. Gramee shall establish and maimain sufficiem telephone lines and personnel so as to not delay unreasonably the answering of all telephone calls. The City, upon receipt of documented complaints from more than ten Users during a single business day between the hours of 8:30 a.m. and 6:00 p.m. regarding their inability to reach a live, personal represemative of gramee during non- emergency, non-system outage periods, may seek liquidated damages as provided in Section 8-128 of the Cable Ordinance. 11. Grantee acknowledges that noncompliance with customer service standards will harm Users and the City and that the extem of harm will be difficult or impossible to measure. The City may therefore assess liquidated damages against grantee for non-compliance with the preceding customer service 26 standards as follows: The FCC Rules curreNly state as to § 76.309(c)(1)(ii) and (iv); and § 76.309(c)(2)(I), (ii), (iii) and (iv) (collectively "quarterly customer service standards") that the standards set forth therein "shall be met no less than ninety (90) perceN of the time under normal operating conditions measured on a quarterly basis." 12. Liquidated damages may be assessed if graNee does not meet the ninety (90) perceN standard for a given subsection (for example, §76.309(c)(2)(ii)) of the quarterly customer service standards in a given calendar quarter as follows. First Second Third and subsequeN Noncompliance Noncompliance Noncompliance $1,000 $2,000 $4,000 13. In the even ora change in 47 C.F.R § 76.309 that makes any of the Federal customer service standards therein less stringent than those in effect in July 1995, the City may adopt customer service regulations as to the subject matter of the portion of the rule that is changed. City agrees to meet with grantee on any proposed changes prior to taking action on them, and to provide grantee with at least 60 days notice of such action. Grantee agrees to comply with any such provisions that are no more stringent than those contained in 47 C.F.R § 76.309 as in effect in July, 1995 as applicable to graNee and to such exteN agrees that it is not entitled to recover the costs of such compliance through external cost treatment or otherwise. 14. GraNee acknowledges that under applicable law the City may unilaterally establish and enforce reasonable customer service regulations that exceed or are not addressed by the standards established by the FCC or the standards curreNly established by the Cable Television Franchise AgreemeN. 15. GraNee will provide at minimum the quality of service required by the Cable Television Franchise AgreemeN, Chapter 8 "Cable Television" of the Code of Ordinances of the City of DeNon, and any other applicable City ordinances and applicable FCC regulations. As evidence of and to assist in compliance with such commitmeN, the City and graNee agree as follows: ao On an annual basis graNee will provide the City with historical expenditure information and staffing levels on customer service related matters; the customer service standards currently used; its materials, if any, on same as used by its customer service representatives; and its procedures and forms used to measure compliance with applicable customer service standards. bo GraNee will provide such other information as the City reasonably requests relating to customer service matters. 27 C. Signal Quality. The following shall apply to graNee's implemeNation of and compliance with the rules and regulations relating to cable television technical standards for signal quality adopted by the FCC in MM Dockets 91-169 and 85-38 on February 13, 1992 and subsequent amendments thereto: All testing for compliance with the FCC technical standards shall be done by a person with the necessary expertise and substantial experience in cable television matters. Upon request, grantee shall provide the City with the written report of such testing. GraNee shall follow the procedures listed above in sections 4 and 5 for resolving complains from Users about the quality of the television signal delivered to them: All matters not resolved shall at grantee's or the User's option be referred to City for attempted resolution. All matters not resolved at that step shall be referred to the FCC for it to resolve. 4. GraNee shall annually notify its Users of the preceding. Upon request by the City, grantee at its expense will test the system in areas specified by City where there are appareN problems and provide City with the written report of such testing. If the test shows a non- compliance with such standards, grantee will bring the system into compliance with such standards within 180 days. D. Validity of the Cable Television Franchise AgreemeN. Subject to the Reservation of Rights in Part I, Section XXXIV, grantee agrees to the following: to be bound by the terms and conditions of the City Charter, Chapter 8 "Cable Television" of the Code of Ordinances of the City of DeNon, Texas, the Cable Television Franchise AgreemeN and all other ordinances applicable to its operation. Grantee does not contend that any provision of the Cable Television Franchise AgreemeN is unlawful or unenforceable, nor is it aware of any other ordinance or any provision in the City Charter which it coNends is unlawful or unenforceable. The City acknowledges that the Cable Television Franchise AgreemeN is in full force and effect. E. Service and EquipmeN for Public Facilities. GraNee will provide the "basic service" and "cable programming services" tiers of cable Service, including installation and service and converter boxes, without charge to public facilities as required by the Cable Television Franchise AgreemeN, Chapter 8 "Cable Television" of the Code of Ordinances of the City of DeNon, Texas, or any other applicable city ordinance, except that such service is limited to (a) City, school, county, state and Federal buildings located within 5,000 feet of graNee's cable system; (b) PlO office, Municipal Building, 215 E. McKinney; (c) DeNon Police Department, 601 E. Hickory; (d) Denton Fire Department, Central Fire Station, 332 East Hickory; and (e) Utility Service CeNer, 901 Texas Street. The terms of this section will be activated when the terms in Part II, Section III (Compliance Requirements) are met. 28 F. EEO Matters. Grantee agrees to faithfully adhere to all applicable federal, state and city laws, rules and regulations relating to non-discrimination, equal employmem and affirmative action. G. Access to Records. The records and reports of the grantee which are to be submitted to the City or otherwise made available for the City (such as for inspection by the City) pursuam to the Cable Television Franchise Agreemem or other ordinance or charter provision of the City shall include records maintained by grantee and its affiliates to the extent necessary for the City to discharge its responsibilities under the Cable Television Franchise Agreemem, Chapter 8 "Cable Television" of the Code of Ordinances of the City of DeNon, Texas, FCC rules or state or local law, or to insure compliance with the Cable Television Franchise Agreement. H. Cable Television Franchise Agreemem Requiremem. Gramee will give the City sixty (60) days notice in writing prior to allowing any telecommunications entity other than grantee to use or lease its facilities (other than towers) in the City or capacity thereon or to amending any agreement with such an entity. No such arrangements or uses are presently in existence except as have been disclosed. "Telecommunications emity" means any emity subject to the jurisdiction of or regulated by the Federal Communications Commission (such as under the Communications Act of 1934 as amended) or the Texas Public Utility Commission or their successors, including telephone, alternative access and cable companies. Gramee will provide the City with such documents relating to the foregoing as the City may reasonably request, including copies of the agreemems. Gramee will give the City sixty (60) days notice in writing prior to providing telecommunications services within the City or making its facilities (other than towers) available to others for that purpose. "Telecommunications services" means conventional telephone services, such as alternative access service that connect User locations and connect Users to long distance companies. Nothing herein shall expand or modify any restrictions or limitations under the Cable Television Franchise Agreemem or applicable law on use for telecommunication purposes of the facilities being acquired by grantee. I. Other Matters. Subject to the Reservation of Rights in Part I, Section XXXIV, grantee agrees to the following: In the event of any conflict between the terms of this Cable Television Franchise Agreement, Chapter 8 of the Code of Ordinances of the City of DeNon, Texas, the City Charter, or any City Ordinance, that provision which 29 provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. To the extent allowed by law, grantee will join the City in obtaining from the FCC any waivers from time to time necessary to effectuate the provisions of this Cable Television Franchise Agreement. The term "affiliate" means any individual, partnership, association, joint stock company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with the entity in question. J. Other Provisions. Grantee will promptly, but no later than twelve (12) months from the effective date of the ordinance approving the Cable Television Franchise Agreement, provide the capability for insertion of video programming and other video, voice and data messages into the cable system at the points in the City required under Section VI (b)(6) of Part I of the Cable Television Franchise Agreement and will comply in all respects with that section of the Cable Television Franchise Agreement. The terms of this section will be activated when the terms in Part II, Section III (Compliance Requirements) are met. The City will not be required to provide any financial support for any Public, Education or Government (PEG) access programming on the grantee's cable system. The City will not collect a PEG fee or require the grantee to provide any financial support for any PEG programming that is not on the grantee's system. 30 Cable Television Franchise Agreement PART iii. SECTION I. This Part III relates to the Cable Television Franchise Agreement granted by the City of Denton ("City") in Part i of this agreement, as amended and supplemented by Part ii and Part iii of this agreement. The foregoing Part i, and Part ii and this Part iii are hereinafter referred to collectively as the "Cable Television Franchise Agreement." Covenants Binding: The promises, covenants, and conditions contained herein inure to the benefit of the City and are binding on grantee. Customer Service. Grantee will comply with the customer service and consumer protection provisions set forth in "Part iii, Exhibit A." o Validity of the Cable Television Franchise Agreement. Subject to the Reservation of Rights in Part i, Section XXXiV, grantee agrees to the following: to be bound by the terms and conditions of the City Charter, the Cable Television Franchise Agreement and all ordinances applicable to grantee's operations. Grantee does not contend that any provision of the Cable Television Franchise Agreement is unlawful or unenforceable, nor are they aware of any ordinance or any provision in the City Charter which they contend is unlawful or unenforceable. The City acknowledges that the Cable Television Franchise Agreement is in full force and effect. The Cable Television Franchise Agreement for Cable Only. Grantee acknowledges that the Cable Television Franchise Agreement is granted solely for the provision of cable service. o Access to Records: The records and reports of the grantee which are to be submitted to the City or otherwise made available for the City (such as for inspection by the City) pursuant to the Cable Television Franchise Agreement or other ordinance or charter provisions of the City shall include records maintained by grantee and its affiliates to the extent necessary for the City to discharge its responsibilities under the Cable Television Franchise Agreement, FCC rules or state or local law, or to insure compliance with this Cable Television Franchise Agreement. o Cable Modem, High-Speed Data and intemet Services. The Federal Telecommunications Act of 1996 modified the definition of"cable services" in the Federal Cable Act (Title Vi of the Communications Act of 1934, 47 USC Section 115 and following). The change addresses cable companies' ability to provide Enhanced, Advanced Cable Services over a cable system as a cable service (and not as a telephone service, with accompanying telephone regulation), if grantee intends to provide Enhanced, Advanced Cable Services. 31 6.1 To remove any uncertainty on grantee's authority to provide Enhanced, Advanced Cable Services the parties agree that grantee has the authority to provide Enhanced, Advanced Cable Services under the Cable Television Franchise Agreement and that the revenues therefrom shall be included in gross revenues for the purpose of computing and paying cable franchise fees. 6.2 If gramee provides any Enhanced, Advanced Cable Services to residential Users in the areas the grantee serves, then without any initial or ongoing charge it shall provide the City cable modems and associated access to the internet with a speed of up to 250 kbs. Such modems and service shall be provided to each City library and to three (3) additional locations specified by the City in City buildings in areas the grantee serves. The terms of this section will be activated when the terms in Part iii, Section XXiii (Compliance Requiremems) are met. Notification of Rate Increases. The grantee shall not charge a separate fee to the Users of the cable system. If applicable and to the extent permitted by federal and state law, the gramee shall notify the City of any rate increase to its rates for basic cable service, equipmem, or service calls regulated by the City. 8. Other Matters. 8.1 Conflict: In the event of any conflict between the terms of Parts I, II, and iii this Cable Television Franchise Agreement, Part ii of this agreement (including exhibits thereto) shall prevail over Part i, and Part iii of this agreemem (including exhibits thereto) shall prevail over Parts i and ii. in the event of any conflict between the terms of this Cable Television Franchise Agreemem and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail, subject to the Reservation of Rights in Part i, Section XXXiV. 8.2 Waivers: To the extem allowed by law, the gramee will join the City in obtaining from the FCC any waivers or other relief from time to time necessary to effectuate the provisions of this Cable Television Franchise Agreement. 8.3 Venue and Choice of Law: Venue of any suit under or arising out of this Cable Television Franchise Agreemem shall be exclusively in DeNon County, Texas or in the United States District Court for the Northern District of Texas. This Cable Television Franchise Agreemem shall be construed in accordance with the laws of the State of Texas. 32 8.4 Treatment of Liquidated Damages: Grantee acknowledges and agrees that liquidated damages under this Cable Television Franchise Agreement (including its exhibits) do not constitute franchise fees, do not reduce the amounts otherwise payable as franchise fees, and will not be passed through to Users. 8.5 Rate Orders: The grantee shall not charge a separate fee to the Users of the cable system. If applicable and to the extent permitted by federal and state law, the grantee agrees to the following: unless a final order of the FCC (affirmed on appeal if an appeal is taken) determines that franchise authority rate orders are automatically stayed by the filing of an appeal to the FCC, grantee will implement each rate order adopted by the City unless and until grantee obtains an order of the FCC or a court of competent jurisdiction staying the effectiveness of the rate order. Grantee will reimburse all attorneys fees and other expenses incurred by the City as a result of a violation of this section. 8.6 Franchise Fee Calculation: Grantee will comply with the decision of the United States Court of Appeals for the Fifth Circuit in City of Dallas v FCC, 118 F3d 393 (1997). Grantee will pay the additional franchise fees due under the Fifth Circuit decision with interest and without pass-through to Users for the time period from September 1997 forward as related to gross revenues, if any, and Part i, Section XX. 9. Institutional Network: Grantee shall provide, construct, operate and maintain an institutional Network (excluding coders/decoders, interface and other terminal equipment which will be supplied by Users) that will provide the City and other i- NET Users with Institutional Network Services. The I-NET shall be as set forth below. Unless the City agrees otherwise in writing, the I-NET, including the individual fiber optic fibers constituting all or a portion of it, shall be owned and maintained by grantee but provided for the exclusive use of the City and other i- NET Users and shall be provided without any charge to the City or I-NET Users. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requirements) are met. 9.1 Grantee shall install and terminate additional fiber optic pairs ("incremental I-NET Fiber") in grantee's future new and replacement fiber optic installations for use as an I-NET as follows. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requirements) are met. 9.1.1 City will inform grantee in writing from time to time of the additional facilities it would like to have served by an I-NET. Grantee will use such information in its plans for future fiber installations, where (for example) one routing will pass a facility 33 City would like to have served and another (of comparable cost) would not. 9.1.2 By January 31 of each year grantee will provide City with its conceptual plans for new and replacement fiber optic construction for that calendar year. 9.1.3 Grantee will also provide City from time to time during the year with written notice of conceptual plans for any additional fiber optic construction during that year (or January of the following year). Such notice shall be provided as soon as is feasible. 9.1.4 Upon written request by City, grantee will provide City with a conceptual cost estimate (and other information City may reasonably require) of installing incremental I-Net Fiber along all or a portion of the routes that are a part of such conceptual plans. Such estimates shall be provided as soon as possible after request by City in order that City may have time to obtain approval (such as from its legislative body) to install such incremental I-Net Fiber. 9.1.5 As to any route where City has requested a conceptual cost estimate, grantee shall provide City with the final cost of installing incremental I-Net Fiber (and such other information as City may reasonably request) as soon as grantee's design of the fiber for such route is reasonably complete. City will have 60 days after receipt of the final cost figure to notify grantee to install Incremental I-NET Fiber. 9.1.6 The cost of installing Incremental I-NET Fiber shall be computed on an incremental basis, meaning the difference in cost to grantee of constructing and installing fiber on a given route (a) with, and (b) without, the incremental I-NET Fiber. 9.1.7 Grantee shall be reimbursed by City for the cost of installing i- NET fibers under this Section 17.2 computed as set forth in Section 17.2.6. 9.2 I-NET Maintenance. Grantee shall provide I-NET users with a reliable level of service, repair and maintenance that at a minimum, meets the following performance standards. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requirements) are met. 9.2.1 Grantee shall maintain a minimum of 99.5 percent service availability to I-NET Users measured over a period of one year. 34 9.3 9.2.2 Grantee shall respond to repair requests from an I-NET User for circuits identified as critical within 2 (two) hours of the request. Grantee shall respond to other repair requests within four (4) hours of the request. 9.2.3 Grantee shall provide ongoing maintenance at its discretion, as it deems necessary. Grantee shall provide at least one-week advance notice to any affected I-NET User of any maintenance requiring temporary interruption of services, except in emergency situations. 9.2.4 Grantee and the City shall develop a mutually agreeable priority listing of critical circuits and their terminal locations. When notifying grantee of service complaints, an I-NET User shall identify critical circuits requiring priority repair. Grantee shall escalate repair of critical circuits to the extent reasonable under the circumstances. Definitions. 9.3.1 Institutional Network or 1-NET means the fiber optic communications network described in Section 17 and Schedule 17 to be constructed and operated by grantee for the provision to i- NET users (but not cable service Users) of institutional Network Services. 9.3.2 Institutional Network Services means the provision of usable bandwidth capacity to I-NET users through fiber optic lines for applications including but not limited to two-way dedicated voice, data, video and telephony channels connecting and interconnecting facilities owned, leased or used by the City, schools, counties, road commissions or other units of state or local government. Other applications include but are not limited to computerized traffic control systems for coordinated traffic control on an area-wide basis; Supervisory Control and Data Acquisition (SCADA) systems for municipally owned water, sewer, gas and electric systems (including street lighting systems); interconnection of facilities serving police, fire and other public safety systems, video arraignment facilities for local courts; interconnection of government buildings for the two or one-way interchange of video signals; and local area networks or wide-area networks connecting governmental buildings, such as for GiS (Geographical informational Systems) purposes. 9.3.3 I-NET User means and is limited to the City and any school or unit of state or local government designated by the City to receive Institutional Network Services. 35 10. HDTV: Broadcast and cable channels are likely to convert in whole or in part to an HDTV (high definition television) format within the next few years, with channels likely being delivered in both HDTV and convemional analog formats during a transition period. The following provisions address the ability of the City to acquire additional PEG Channels such that one or more PEG entities may have their signals simultaneously delivered by the cable system in both an HDTV and convemional analog 6 MHz NTSC format for the transition period, and provide funds for PEG entities to convert to an HDTV format. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requiremems) are met. 10.1 Reports: Gramee shall provide annual reports to City on its plans and progress for HDTV conversion, including the number of channels to be converted, date, equipment changes, formats to be used and other information reasonably necessary for the City to be able to plan an appropriate and potentially concurrent conversion of PEG Channels and facilities to HDTV format. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requiremems) are met. 10.2 Cable Televisions Franchise: After the date when grantee provides at least fifty (50) channels in one or more of several high definition television (or successor) formats, as such formats may from time to time be adopted or in effect ("HDTV Format"), then upon request from City, gramee shall provide a capital facilities grant to City sufficient for PEG entities to convert all their facilities and equipmem (including but not limited to studios, vans, video, audio, lighting, comrol, storage and editing equipment) to the HDTV Format selected by City but with the amount of such grant not to exceed 30¢ per User per month when amortized over grantee's Users as of the end of the calendar quarter preceding the date when the grant is made, using straight line amortization without interest for the lesser of five (5) years or the remaining term of the Cable Television Franchise Agreemem. City shall allocate the gram among PEG emities for such purpose as City deems is in the public imerest. Gramee shall modify the cable system whereby gramee receives PEG signals from each PEG Emity (for redistribution on its Cable System) so as to be capable of receiving and accepting the PEG Emity's signals. City shall co-ordinate with grantee to ensure that the HDTV Format selected by City is compatible with the format employed by grantee. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requiremems) are met. 10.3 Temporary_ Additional PEG Channels: After the date when gramee provides at least fifty (50) channels in HDTV Format, City may from time to time request, and grantee shall provide, one additional PEG Channel so 36 11. 12. as to allow, to the extent deemed appropriate by City, PEG Channel simulcasting in both 6 MHz analog NTSC format and in an HDTV Format. Gramee need no longer provide the additional PEG Channel described in the preceding semence when gramee no longer provides any channel of programming on the cable system in 6 MHz NTSC analog format. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requiremems) are met. 10.4 Allocation of PEG Channels: As of the effective date of this Cable Television Franchise Agreemem, City may allocate and reallocate PEG Channels as follows: City may at any time on six (6) momhs notice to grantee allocate or reallocate the usage of the PEG Channels among and between differem uses and users. This expressly may include City removing a PEG Emity or PEG Channel, replacing a PEG Emity or PEG Channel, requiring several differem persons to share or joimly use a given PEG Channel or conversely allowing one or more persons curremly sharing such a channel to have a channel on which they are the sole PEG user. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requiremems) are met. Leased Access and PEG Channels: The need for a PEG Channel can be removed by gramee providing the PEG Emity designated by City of such currem or prospective PEG Channel with an otherwise idemical leased access channel, so long as the leased access rate for such user is one dollar ($1.00) per year. in the event the preceding sentence is exercised it shall be applied first to educational channels and then to public channels, if applied to such channels the channel number on which they are carried shall not be changed and such channels shall be included in the basic tier of service and shall be listed in gramee's program guide or comparable listing with an appropriate description, such as "City of DeNon Channel" or "University of North Texas Channel." The need for a PEG Channel is removed only so long as the PEG Emity in question in fact is provided with such leased access channel. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requiremems) are met. Transfer. City consem in advance shall be required for a transfer of comrol of gramee, which shall include, but is not limited to, any of the following: 12.1 Any change in limited partnership imerests, non-managing limited liability company interests, or non voting stock representing thirty percent or more of the equity interests in the entity in question. 12.2 Any option, right of conversion or similar right to acquire interests constituting control without substantial additional consideration (such as compared to consideration previously provided). 37 12.3 Any change in the effective control of grantee including that described in 47 C.F.R. § 76.501 and following (including the notes thereto but excluding footnote 2f) as in effect on the date of this Cable Television Franchise Agreement. 13. Definitions. The following definitions shall apply for the purpose of this Part iii. and it's Exhibits. 13.1 Affiliate means any individual, partnership, association, joint stock company, limited liability company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with the entity in question. 13.2 Capital Facilities means PEG Channel and I-NET related facilities and equipment including fiber lines, studios, production facilities, vans and cameras or other property having a useful life of more than one year, as well as any expenditures which increase or add to the value of the facilities or equipment, adapt the facilities or equipment to new or different uses, or maintain, restore, extend or prolong the useful life of such facilities or equipment. 13.3 Cable Service means 13.3.1 The one-way transmission to all UNT Facilities of (i) Video Programming, or (ii) other programming service, and 13.3.2 User interaction, if any, including but not limited to that which is required for the selection or use of such Video Programming or other programming service, selecting from various on-screen options, use of Enhanced, Advanced Cable Services, game channels, interactive services, downloading programs or data access, or ordering merchandise, and 13.3.3 Institutional Network Services. 13.4 Cable System or System means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable services but such term does not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right of way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title ii of the Communications Act of 1934, as amended, except that such a facility shall be considered a cable system (other than for purposes of Section 621 (c) of such Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the 38 14. extent of such use is solely to provide interactive on-demand services; (iv) an open video system that complies with Section 653 of Title VI of the Communications Act of 1934, as amended; or (v) any facilities of any electric utility used solely for operating its electric utility system. 13.5 Enhanced, Advanced Cable Services means enhanced services, information services, Internet protocol (IP) telephony, high speed data service, Internet access and Internet service (such as that of an Internet service provider). 13.6 FCC means the Federal Communications Commission. 13.7 I-NET User has the meaning set forth in Section 9.3.3. 13.8 Institutional Network or I-NET has the meaning set forth in Section 9.3.1. 13.9 Institutional Network Services has the meaning set forth in Section 9.3.2. 13.10 PEG Channels means the public channels, educational channels and government channels provided by grantee on the cable system under this Cable Television Franchise Agreement, or applicable ordinance, and shall include leased access channels provided pursuant to Section 19 herein. 13.11 PEG Entity means a person authorized to operate or use a PEG Channel (or a leased access channel provided in lieu of a PEG Channel under Section 11) or the X-NET, and shall include City. If several persons share the operation of a PEG Channel each person shall be a separate PEG Entity. 13.12 User shall have the same meaning as in Part I, Section III of this Cable Television Franchise Agreement. 13.13 Video Programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. Compliance Requirements: When grantee's cable End Point Connections exceed Five Thousand (5000) within the City of Denton, the grantee will be required to comply with the below listed sections, or parts of sections, upon request from the City. Part III, Section 9, Institutional Network, 9.1 and 9.2. Part III, Section 10, HDTV, 10.1, 10.2, 10.3 and 10.4. Part III, Section 11, Leased Access and PEG Channels. Part III, Exhibit A, (4). 39 15. Fees and Costs. The gramee will reimburse the City all its costs, which exceed the initial $5,000, in association with the preparation and award of this Cable Television Franchise Agreemem, including publication costs and costs of consultants and attorneys, not to exceed $1,500. In addition, the grantee will reimburse the City all its costs in association with the preparation and award of a Cable Television Franchise Agreemem Renewal, including publication costs and costs of consultants and attorneys. The preceding reimbursement requirement applies whether a Cable Television Franchise Agreemem is executed. 16. Approval and Acceptance. In accordance with Section 13.02 of the City Charter of the City of DeNon, this ordinance shall become effective twenty-one (21) days after final approval, before that date, grantee shall give its written acceptance of this ordinance by signing as provided below; and provided that, after final approval and before the expiration of twenty-one (21) days, the full text of this ordinance shall be published once each week for two (2) consecutive weeks in the official newspaper of the City, the expense of which shall be borne by gramee. Gramee, for itself, its successors and assigns hereby accepts this ordinance and agrees to be bound by all of its terms and provisions. 40 PART III EXHIBIT A. CUSTOMER SERVICE AND CONSUMER PROTECTION Customer Service Standards: Grantee shall at all times comply with the more stringent of the customer service and consumer protection provisions of this Part iii, Exhibit A, the Cable Television Franchise Agreement and the FCC. Grantee may provide its Customer Bill of Rights (if any) to its Users in the City. Pay Per View: Users shall be given the options of (a) not having pay per view or per program service available at all or (b) only having such service provided upon the User providing a security number. The terms of this section will be activated when the terms in Part iii, Section 14 (Compliance Requirements) are met. Notification: Grantee shall provide written information on at least each of the following matters (a) at the time of installation or reinstallation of service, (b) annually to all Users, and (c) at any time upon request of a User or the City. The information shall be dated with the printing, revision, or effective date. 3.1 Products and services offered. 3.2 Installation and service maintenance policies. 3.4 Instructions on how to use Cable Services 3.5 Channel positions of programming carried on the cable system, including a listing specific to the City showing the channel names and numbers actually available to Users. 3.6 Complaint procedures with a notice for the User to initially contact grantee with complaints and questions. 3.7 Applicable privacy requirements as set forth in the Cable Television Franchise Agreement or provided for by law. 3.8 The procedure for resolving signal quality problems Notice of Changes: Users and the City shall be notified of any changes in rates, Cable Services or channel positions as soon as possible through announcements on the cable system or in writing. Grantee will notify City in advance of notifying Users and will make every effort to notify City forth-five (45) days in advance of a change. Unless a longer time period is required by applicable law or regulation, notice must be given to Users a minimum of thirty (30) days in advance of such 41 o o changes if the change is within the comrol of gramee and as soon as possible if not within the control of grantee. In addition, grantee shall notify Users and the City thirty (30) days in advance of any significam changes in the matters covered by the preceding Section 3. Notifications provided pursuant to this Section shall be dated with the printing, revision or effective date. Complaim procedure: 5.1 UNT will take User service complaints at either the front desk of a residence hall or at the Centralized Location. Either the residence hall front desk or the Centralized location, which shall act as general User service cemers, shall be staffed twenty-four hours per day, seven days per week. 5.2 Users needing service will report such need to either the from desk or the Centralized Location. The staff member will log such request in the work order log book and will also send the work order electronically to UNT Housing Maimenance Departmem (940-565-4711) where the order will be primed out. Orders shall be generally worked within 24 hours with the exception of weekends when the order would be worked the following Monday. UNT Housing Maintenance will check first for issues with the coaxial cable, the connectors, or the User's TV set. 5.3 Users may pick up and drop off any converters, remotes or other Grantee supplied equipment at the front desks or the Centralized Location twenty- four hours per day, 7 days per week. 5.4 Users who believe they have not received timely or adequate service can return to either the front desk or the Centralized Location and report such whereupon the staff shall contact the Administrative Services Officer. Users can also contact this staff member directly or UNT's Director of Housing Users will be advised of the complaint procedure at least once per year in writing and will be informed as to whether the from desk for their residence hall or the Cemralized Location should be used. 5.5 If the operator of the satellite system providing signals to the Cable System does not provide a clear signal, complaints in that regard shall be referred to such operator who shall immediately correct same. General: 6.1 UNT employees who enter User rooms for work requests will wear idemifying badges and will leave a notice of emry slip to record their time, date, and purpose of entry. Users do not have to be in their rooms for the workers to enter. 42 6.2 UNT Housing will give advance notice to Users as a courtesy any time the system is taken down for emergency maintenance or repairs to the entire system. It is anticipated that routine maintenance will be done during summers and holidays so Users' service generally will not be interrupted. 6.3 UNT Housing will train desk staff regularly on expected service standards. 6.4 Grantee shall, not less than once a year, provide information to Users on the Cable System with a complete list of service offerings, options, prices (if applicable), credit policies and procedures for Users to address service complaints associated with the Cable System. 7. Telephone service: 7.1 Grantee shall have a local or toll-free telephone number available for use by Users. The local or toll-free numbers shall be listed, with appropriate explanations, in any significant directories published by the grantee. 7.2 Grantee shall establish and maintain sufficient telephone lines and personnel so as to not delay unreasonably the answering of all telephone calls. The City, upon receipt of documented complaints from more than ten Users during a single business day between the hours of 8:30 a.m. and 6:00 p.m. regarding their inability to reach a live, personal representative of grantee during non-emergency, non-system outage periods, may seek liquidated damages as provided in Section 8-128 of the Cable Ordinance. 7.3 Trained Representatives shall be available to respond to User telephone inquiries. 7.3.1 As to video service matters, the term "Trained Representatives" shall mean employees of grantee, or contractor, who have the authority and capability while speaking with a User to, among other things, schedule service and installation calls. 7.4 Under Normal Operating Conditions, telephone answer time by a Trained Representative, including wait time, shall not exceed thirty (30) seconds from when the connection is made. If the call needs to be transferred, the time to complete the transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. 7.5 Under Normal Operating Conditions, the User shall receive a busy signal less than three percent (3%) of the time, measured on a quarterly basis. 43 10. Office: Grantee shall do all the following: (i) maintain a business office that shall include a place where Users may receive information on grantee's cable services. Installation Standards: Under Normal Operating Conditions, installations shall be performed within seven (7) business days after an order has been placed no less than ninety-five percent (95%) of the time, measured on a quarterly basis. Installations/Service Calls: The following shall apply to Users (current or new) requesting installations or service: 10.1 Installations calls shall be available at a minimum from 8:00 AM to 5:00 PM Monday through Friday, and service calls shall be available at a minimum from 8:00 AM to 5:00 PM Monday through Saturday. 10.2 Grantee shall not cancel an appointment with a User after 5 PM on the business day prior to the scheduled appointment. 10.3 If grantee's technician is running late for an appointment with a User and will not be able to keep the appointment as scheduled, the User shall promptly be contacted. The appointment shall be rescheduled, as necessary, at a time, which is convenient for the User. 10.4 In the event access to the User's premises is not made available to grantee's technician when the technician arrives during the established appointment window, the technician shall leave written notification stating the time of arrival and requesting that grantee be contacted again to establish a new appointment window. 10.5 Notwithstanding the foregoing, if grantee's technician or service representative telephones the User during or prior to the appointment window and is advised that the technician will not be given access to the User's premises during the appointment window, then the technician shall not be obliged to travel to the User's premises or to leave the written notification referred to above, and the burden shall again be upon the User to contact grantee to arrange for a new appointment. 10.6 Except as otherwise provided above, grantee shall be deemed to have responded to a service or installation request under the provisions of this section when a technician arrives at the service location or is advised by telephone no access will be given. 10.7 Grantee's service technician or service representative shall take adequate time on each service call to address or correct the problem in question. 44 10.8 Under Normal Operating Conditions, grantee shall meet the standards of Section 10.1 through 10.3 no less than ninety-five perceN (95%) of the time, measured on a quarterly basis. 11. Service Call Charges: No charge shall be made to the User for any service call relating to grantee owned and grantee maintained equipment after the initial installation of Cable Service unless the problem giving rise to the service request can be demonstrated by grantee to have been: 11.1 Caused by negligence or malicious destruction of cable equipmeN by the User, or 11.2 A problem established as having been non-cable in origin. 12. Service Interruptions: 12.1 Under Normal Operating Conditions, grantee shall meet the standards of Sections 12.2 and 12.4 no less than ninety-five perceN (95%) of the time measured on a quarterly basis. 12.2 Under Normal Operating Conditions, graNee shall begin working on a Service INerruption promptly and in no even later than twenty-four (24) hours after the interruption becomes known to grantee. 12.3 "Service Interruption" means the loss of picture or sound on one or more cable channels, affecting one or more Users. 12.4 Under Normal Operating Conditions, graNee shall begin working on User complains involving impairmeN or degradation of signal quality (other than a Service Interruption) promptly and in no event later than the next business day after the problem becomes known to graNee. 12.5 GraNee shall be deemed to have begun work under the provisions of this section when a technician arrives at the service location. 13. Log of Complaints: Grantee shall maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in priNed form, of a random sampling of all cable-related User complains within the City that are referred to graNee. Such log shall be in form and substance acceptable to the City and at minimum list the date and time of each such complaint, identify the User to the extent allowed by law, and describe the nature of the complaint and when and what actions were taken by grantee in response thereto. The log shall be kept at graNee's office for a period of at least two (2) years and shall be available for inspection during regular business hours by the City upon request. 45 14. 15. Bills: The grantee shall not charge a separate fee to the Users of the cable system. If applicable, the gramee shall comply with the following on Cable Service billing: 14.1 Bills shall be issued momhly to each User with a balance due or change of service. 14.2 Bills shall be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic service, cable programming service, premium service charges and equipmem charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates, credits, and late charges. 14.3 Each bill shall prominemly display gramee's local or toll-free telephone numbers available for use by Users. If a bill has more than one portion (for example, one portion that is kept by the User and one portion that is sen to gramee) the numbers shall prominemly appear on the from side of the portion of the bill retained by the User. 14.4 Grantee shall respond in writing to all written complaints from Users regarding billing matters within thirty (30) days. 14.5 Grantee shall not disconnect a User for failure to pay legitimately comested charges during a billing dispute. However, during a billing dispute grantee may disconnect a User for failure to pay charges that are not contested. 14.6 The City shall be given thirty (30) days advance notice of any change in the format of bills. Refunds and Credits: The grantee shall not charge a separate fee to the Users of the cable system. If applicable, the gramee issue refund checks for Cable Service promptly, but no later than either: 15.1 The User's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or 15.2 If service is terminated, 30 days after return of equipmem owned by grantee or at the time of the next billing cycle, whichever is earlier. 15.3 Credits for Cable Service shall be issued no later than the User's next billing cycle following a determination that a credit is warranted. 46 16. Late Payment for Cable Service: The grantee shall not charge a separate fee to the Users of the cable system. If applicable, the grantee agree to the following: 16.1 Each bill shall specify on its face in a fashion emphasizing same (such as bold face type, underlined type or a larger font): "For payments received 16 days after due date, a $4.95 processing fee for late payment may be charged." 16.2 No processing fees for late payment, however denominated, shall be added to a User's bill less than sixteen (16) calendar days after the mailing of the bill to the User. 16.3 No processing fees for late payment, however denominated, shall be added to a User's bill by reason of delay in payment other than those described in this Section 16. All such charges shall be separately stated on the User's bill and include the word "late" in the description of them. 16.4 There have been negotiations in connection with this Exhibit regarding the appropriate amount of fees that may be charged for late payment. The parties have agreed to withdraw this issue from consideration without prejudice to any claims and defenses. 17. Disconnection: The grantee shall not charge a separate fee to the Users of the cable system. If applicable, the grantee agree to the following: 17.1 Grantee shall not disconnect a User for failure to pay until at least twenty- six (26) days have elapsed after the due date for payment of the User's bill and grantee has provided at least ten (10) days written notice separate from the monthly bill to the User prior to disconnection, specifying the effective date after which Cable Services are subject to disconnection. 17.2 Grantee may disconnect a User at any time if grantee in good faith believes that the User has tampered with or abused grantee's equipment, that there is a signal leakage problem (or other non-compliance with FCC rules or other standards which poses a risk to lives or property) on the User's premises, or that the User is or may be engaged in the theft of Cable Services. 17.3 Grantee shall promptly disconnect any User who so requests disconnection. No period of notice prior to requested termination of service shall be required of User by grantee. No charge shall be imposed upon the User for or related to disconnection or for any Cable Service delivered after the effective date of the disconnect request (unless there is a delay in returning grantee equipment). If the User fails to specify an effective date for disconnection, the effective date shall be deemed to be 47 the day following the date the disconnect request is received by grantee provided that grantee equipment has been returned. 17.4 The term "disconnect" shall include Users who elect to cease receiving Cable Service from grantee. 18. Truth In Advertising: The grantee shall not charge a separate fee to the Users of the cable system. If applicable, the grantee's bills, advertising and communications to its current or potential Users shall be truthful, shall not contain any false or misleading statement and shall comply with the Texas Deceptive Trade Practices-Consumer Protection Act, TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63. (Vernon 1987). For the purposes of the preceding, a statement is false or misleading if it contains an untrue statement of any material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. 19. Reports: Grantee shall provide reports to the City monthly (by the 15th business day of the following month) and quarterly (by the 15th business day of the following quarter) as follows: 19.1 The reports shall include the following forms currently used by grantee or otherwise in form and substance acceptable to the City, showing on a consistent basis, fairly applied, grantee's compliance with customer service standards. 19.1.1 Monthly Report of Service Calls by Reason, which shall include an explanation of the categories of reported reasons. 19.1.2 Monthly Outage Summary. 19.1.3 Monthly Service Call Availability Analysis and Installation Call Availability Analysis. 19.1.4 Monthly Customer Call Sample Report, showing the results of a random sampling of customer complaints referred to grantee. 19.1.5 Monthly Call Center Performance Report, (excluding the 2% "assumed" adjustment). 19.2 Such reports shall show grantee's performance excluding periods that were not Normal Operating Conditions ("Abnormal Operating Conditions") and if grantee contends any such conditions occurred during the period in question, it shall also describe the nature and extent of Abnormal Operating Conditions and show grantee's performance both 48 including and excluding the time periods grantee contends such conditions were in effect. 19.3 At the City's request grantee will provide additional information and existing reports reasonably related to the measurement and evaluation of grantee's compliance with the customer service requirements of the Cable Television Franchise Agreement, and this Exhibit A. 19.4 Reports of installations/service calls and service interruptions shall report matters occurring within the City. 19.5 The City reserves the right to audit grantee to verify the accuracy of the reports required under this Section 19. All records (including those of contractors) reasonably necessary to conduct the audit shall be made available at a convenient location in Denton, TX. If the audit discloses performance that is three (3) percentage points worse than any of the standards of the referenced sections (such as compliance 92% of the time versus 95% of the time), grantee shall pay the City's costs in connection with the audit within thirty (30) days of submission of an invoice. 20. FCC Technical Standards As applicable and required by law, the following shall apply to grantee's implementation of and compliance with the rules and regulations relating to cable television technical standards for signal quality, currently set forth at 47 C.F.R. § 76.601 and following, and subsequent amendments thereto: 20.1 Grantee shall notify the City in advance of testing for compliance with FCC standards. The City may have a representative present to observe such tests and may designate one location to be tested. Grantee shall provide the City with a report of testing for compliance with such standards upon written request (but not more than twice a year). Such report to City shall state, in pertinent part, that the person doing the testing has reviewed the applicable rules and regulations of the FCC, the industry standards and other materials referenced therein, and that such testing was done fairly and either shows full compliance with such rules and regulations or sets forth with specificity and in detail all areas of non- compliance, their actual or likely scope and causes, and grantee's professional recommendation of the best corrective measures to immediately and permanently correct the non-compliance. 20.2 Grantee shall establish the following procedure for resolving complaints from Users about the quality of the television signal delivered to them: All complaints shall go initially to grantee. All matters not resolved by grantee shall at grantee's or the User's option be referred to the City for it to resolve. All matters not resolved by the City may be referred to the FCC for it to resolve. 49 21. 20.3 The City at its expense (no more than twice per year, barring unusual circumstances) upon thirty (30) days written notice to grantee may test the cable system for compliance with the FCC technical standards. Grantee shall cooperate in such tests and provide access to the cable system. Grantee shall reimburse the City for the full expense of any test, which shows a material non-compliance with such standards. Liquidated Damages - Customer Service Calls: Grantee acknowledges that non- compliance with the customer service standards identified above will harm User and the City and the amounts of actual damages will be difficult or impossible to ascertain. The City may therefore assess the following liquidated damages against grantee for non-compliance with the customer service standards set forth in Sections 7.3, 7.4, 7.5, 9, 10.1, 10.2, 10.3, 10.10, 12.1, 12.2 and 12.4 (measured on a quarterly basis). Grantee acknowledges that the liquidated damages set forth below are a reasonable approximation of actual damages and that this Section 21 is intended to provide compensation and is not a penalty. 21.1 Telephone Standards. The damages for non-compliance with one or more of the standards in Sections 7.3, 7.4 and 7.5 during a calendar quarter are: 21.1.1 First non-compliance: $1.00 per End Point Connection. 21.1.2 Second non-compliance within three (3) consecutive calendar quarters: $2.00 per End Point Connection. 21.1.3 Third non-compliance within six (6) consecutive calendar quarters and (subject to Section 21.4) each subsequent non-compliance: $3.00 per End Point Connection. 21.2 Service and Installation Standards. The damages for non-compliance with one or more of the standards in Sections 9, 10.1, 10.2, 10.3, 10.10, 12.1, 12.2 and 12.4 during a calendar quarter are: 21.2.1 First non-compliance: $1.00 per End Point Connection. 21.2.2 Second non-compliance within three (3) consecutive calendar quarters: $2.00 per End Point Connection. 21.2.3 Third non-compliance within six (6) consecutive calendar quarters and (subject to Section 21.4) each subsequent non-compliance: $3.00 per End Point Connection. 21.3 Minimums. The liquidated damages for the first and each subsequent non- compliance under Section 21.1 or Section 21.2 shall be no less than $5,000, unless modified as provided in Section 21.4. 50 22. 23. 21.4 Effect of Extended Periods of Compliance. If grantee complies with all of the standards identified in Sections 21.1 and 21.2 for eight consecutive calendar quarters, the damages for the first subsequent non-compliance with any of those standards will be the greater of 25¢ per End Point Connection or $3,000. 21.4.1 Following such a non-compliance the damages provided in Sections 21.1 and 21.2 will again be applicable so that the next non-compliance within four (4) consecutive calendar quarters will be subject to Sections 21.1.2 and/or 21.2.2. 21.5 An event of non-compliance will be taken into account in determining whether a later event of non-compliance is a second, third or subsequent event without regard to whether City has assessed liquidated damages or taken any other action with respect to the non-compliance. 21.6 Grantee shall report the number of End Point Connection within the City on the last day of the quarter by the 15th business day of the following quarter. Liquidated Damages - Other: 22.1 Liquidated damages in the amount set forth in Section 21.1.1 (but not less than the amount set forth in Section 21.3) may be assessed for failure to timely submit the quarterly reports required by Section 19. 22.2 Liquidated damages may be assessed for violation of the provision of Section 26.4 for submission of reports within five (5) business days in the amount of $1,000 per day. Procedure for Assessment of Liquidated Damages: The procedure for consideration and assessment of liquidated damages is as follows: 23.1 Liquidated damages shall be assessed by the City Manager or his or her designee. 23.2 Grantee may obtain a review of the assessment by the City Council by making a written request within ten (10) business days after receipt of notice in writing of the assessment and its basis. 23.3 Grantee shall have an opportunity to be heard at a meeting of the City Council or by a person designated by the Council as a hearing officer prior to action being taken by the Council. 51 23.4 The City Council may adopt additional procedures, including appoimmem of a City official or other person to act as a hearing officer. The Council's decision may be based upon the record of proceedings conducted by the hearing officer or a proposal for decision submitted by the hearing officer. 24. Paymem of Liquidated Damages: Liquidated damages shall be paid in accordance with the prompt payment act following assessment or, if grantee requests review by the City Council, on or before the temh (10th) business day following issuance of the Council's decision. 25. Ombudsman: Gramee will provide a senior employee (at the Vice Presidem or Director level) as ombudsman. The ombudsman or his designee will have responsibility for working with the City to address problems that may arise under the Cable Television Franchise Agreemem. 26. City Liaison: Gramee shall provide problem solving liaison services for the City. The purpose of this service is to provide the City with direct access to supervisory level personnel who can obtain prompt action on customer service problems referred by the City to gramee. This service shall include at least the following: 26.1 The personnel providing the service shall be located in DeNon County. 26.2 The personnel providing the service shall have sufficiem authority and access to grantee's facilities and personnel in order to investigate and take appropriate remedial action without delay. 26.3 The City shall be given a special direct phone number to use which will generally during normal business hours be answered by a live person and will provide immediate access to a person having the authority specified in the preceding section. 26.4 Grantee shall investigate (including an attempt to contact the User) and respond to the City on each call, fax or written complaint or request by the end of the next business day and shall provide a written report within five (5) business days. 26.5 Grantee shall give the City notice in writing of changes in the key contact personnel or material changes in procedures involved in providing this service. 27. Definitions: For the purposes of this Exhibit A, the following definitions shall apply: 27.1 Cable Administrator means the person designated by City as having principle responsibility for cable matters. 52 27.2 27.3 27.4 Complaint means a telephone call or written communication from a User notifying grantee of a problem relating to grantee's billing or billing practices, grantee's equipment, picture quality, failure to receive one or more channels, a change in grantee's practice or policy, grantee's advertising or other business practice, the conduct of a grantee employee or contractor, or the failure of grantee or a service representative to comply with customer service regulations. Normal Operating Conditions means those service conditions that are within the control of grantee. Those conditions which are not within the control of grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are within the control of grantee include, but are not limited to, special promotions, pay- per-view events, rate increases, regular or seasonal demand periods, changes in the billing cycle, changes in the form of bills and other billing matters, changes in channel lineups or services that are within grantee's control, and repairs, rebuilds, maintenance and upgrade of the cable system including computer software and hardware. Labor Disputes. Employee strikes, slowdowns and walkouts of less than 30 days duration are not within the control of grantee. 53 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: March 22, 2005 Economic Development ACM: Mike Conduff, City Manager SUBJECT Consider adoption of an ordinance authorizing the Mayor to execute an amendment to a Tax Abatement Agreement with Flowers Baking Co. of Denton, LLC; dated September 19, 2003 for the purpose of reducing the land area that is subject to the Tax Abatement Agreemem; providing for a severability clause; and providing an effective date. BACKGROUND On September 19, 2003, the City Council grained a tax abatemem to Flowers Baking Co. of DeNon, LLC. Flowers purchased the former Andrew Corporation facility at 4210 Edwards Road and is in the process of renovating the building. They have also constructed approximately 35,000 square feet of additional space. They estimate approximately $33 million in new equipmem valuation. The tax abatemem is based on increased valuation on the building and equipmem. Land and invemory are not included. When the incentive was granted, Flowers then purchased the facility with approximately 90 acres. They now have an opportunity to sell approximately 30 acres, which they do not plan to develop. Approval of this amendmem will have no impact on the terms of the agreemem. It will only alter the property description, which is an exhibit of the agreement. Tax abatements require that the business be located in a reinvestment zone; therefore, Reinvestment Zone No. VI was created for the Flowers abatement. The property description defining the boundaries of the reinvestment zone is identical to the property description for the facility and its 90 acres. You should know that if a reinvestmem zone includes more than one property, each property owner has a right to ask for the same terms in any tax abatement agreement that is executed. The City is not obligated to grant a tax abatement to the property owner. However, if an abatement is provided, it must be on the same terms (number of years and percemage of abatemem) as the Flowers agreement. Staff is not recommending a revision to the reinvestment zone boundaries. The parcel to be removed from the original 90 acres is under comract by the Holigan group for park development, drainage improvements and utility easements. A tax abatement is not being considered. ESTIMATED SCHEDULE OF PROJECT If approved, Flowers and Holigan imend to close on this parcel at the end of March 2005. PRIOR ACTION/REVIEW The Economic Development Partnership (EDP) Board meets every other month. The request for this action was received after the January 18th meeting, and the Board's next meeting is scheduled for March 28th. Since this action did not impact the reinvestment zone boundaries or the incentive amounts or threshold; and since the company wanted to close on the sale of this parcel by the end of March, staff did not take this item to the EDP Board for their review. FISCAL INFORMATION N/A EXHIBITS Ordinance Amendment to Tax Abatement Agreement Respectfully submitted: Linda Ratliff, Director Economic Development Department ORDINANCE NO. AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AMENDMENT TO A TAX ABATEMENT AGREEMENT WITH FLOWERS BAKING CO. OF DENTON, LLC; DATED SEPTEMBER 19, 2003 FOR THE PURPOSE OF REDUCING THE LAND AREA THAT IS SUBJECT TO THE TAX ABATEMENT AGREEMENT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on the 2~° day of September 2003, after a public heating duly held in accor- dance with Tex. Tax Code §312.201 (the "Act"), the City Council passed Ordinance No. 2003- 288 establishing Reinvestment Zone No. VI, City of Denton, Texas as a commercial/industrial reinvestment zone for tax abatement, as authorized by Title 3, Chapter 312, Subchapter B of the Act; and WHEREAS, pursuant to Ordinance No. 2003-289 the. City of Denton and Flowers Bak- ing Co. of Denton, LLC ("Flowers") entered into that certain Tax Abatement Agreement having an effective date of September 19, 2003 (the "Tax Abatement Agreement"); and WHEREAS, Flowers has requested a First Amendment of the Tax Abatement Agree- ment, a copy of which is attached hereto and made a part hereof as Exhibit "A" (the "Amend- ment'') for the purpose of reducing the land area that is subject to the Tax Abatement Agreement; and WHEREAS, the City has complied with Sections 312.208 mad 312.2041 of the Act, as the City has not later than the seventh day before the date of the Amendment delivered a written no- rice that the City intends to enter into the Amendment, along with a copy of the Tax Abatement Agreement and Amendment to the presiding officer of the goverrfing body of each other taxing unit in which the subject property is located; and WHEREAS, the City Council deems it in the public interest to enter into the Amend- ment; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble to this ordinance are true and correct and are adopted as a part of the whole ordinance. SECTION 2. The Mayor, or in her absence, the Mayor Pro Tem, is hereby authorized to execute the Amendment on behalf of the City. SECTION 3. 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 hereby declares that they would have en- acted such remaining portions despite any such validity. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PRO~Y, C~ATTORNEY // BY: ' Page 2 After recording, return to: Jeff Greenway Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, N.E., Suite 5200 Atlanta, Georgia 30308-22 t 6 FIRST AMENDMENT TO TAX ABATEMENT AGREEMENT THIS FIRST AMENDMENT TO TAX ABATEMENT AGREEMENT (this "Amendment") is dated as of the day of ., 2005, by and between CITY OF DENTON, TEXAS (the "City), a political subdivision of the State of Texas, duly acting herein by and through its Mayor, and FLOWERS BAKING CO. OF DENTON, LLC, a Texas limited liability company, duly authorized to do business in the State of Texas and in good standing ("Flowers"). WiTNESSETH: WHEREAS, Flowers owns a bakery facitity located at 4210 Edwards Road, Denton, Texas 76208 (the "Bakery"); and WHEREAS, the City and Flowers are parties to that certain Tax Abatement Agreement dated September 19, 2003 (the "Agreement") pursuant to which Flowers and the City have agreed that during the term of the Agreement Flowers shall be entitled to an abatement for a portion of the ad valorem taxes payable each year with respect to the Bakery in return for the investment by Flowers in certain improvements to the Bakery; and WHEREAS, the "Premises" under the Agreement, and defined with greater particularity in Exhibit A to the Agreement, consists of approximately 91.921 acres of land (the "Original Premises"); and WHEREAS, Flowers intends to sell a portion of the land included in the Original Premises and described with greater particularity in Exhibit A attached hereto (the "Sale Parcel") and the parties desire to release the Sale Parcel from the Agreement, to remove the Agreement as encumbrance on the title to the Sale Parcel and to amend the definition of "Premises" accordingly. AGREEMENT: NOW THEREFORE, in. consideration of the mutual promises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Flowers hereby agree as follows: 1. Release of Sale Parcel; Revised Premises. Effective as of the date hereof, the parties agree that (i) the Sale Parcel is released for all purposes from the duties, obligations, covenants and all other terms and conditions contained in the Agreement; (ii) it is their intent that the Agreement be removed as an encumbrance on the title to the Sale Parcel, and (iii) the definition of "Premises" in the Agreement shall be amended to mean the real .property described in Exhibit B attached hereto and made a part hereof (the "Revised Premises"). 2. Miscellaneous. The Agreement, as herein modified, remains in full force and effect in 1435273_1 .DOC i accordance with its terms, the City and Flowers hereby ratifying and confirming the same. [signatures are on the next page] 1435273_1.DOC 2 1N WITNESS WHEREOF, the parties have executed this Amaendment as of the date and year first above written. CITY: CITY OF DENTON, TEXAS By: Name: Eul±ne Brock Its: Mayor .(print or type name) ATTEST: By: Name: Jennifer Walters Its: City Secretary .(print or type name) APPROVE~. By: Name: Edwin Snyd ,~___~ffputy City Its: City Attorney Attorn~(l~rint or type name) FLOWERS: FLOWERS ~/AKING CO. OF DENTON, LLC Its: Treasurer i435273_1.DOC 3 CITY'S ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF DENTON BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared ) Mayor for the City of Denton, Texas, a political subdivision of the State of Texas, known to me to be the person who signed and executed the foregoing instrument, and acknowledged to me that this instrument was executed for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this ~ 2005. 'day of [seal] Notary Public, State of My commission expires: 1435273_1 .DOC 4 FLOWER'S ACKNOWLEDGMENT COUNTY OF BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Karyl H. Lauder, being the Treasurer of Flowers Baking Co. of Denton, LLC, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purpose and consideration therein expressed, in the capacity therein stated as the act and deed of said entity. GIVEN UNDER MY HAND AND SEAL OF OFFICE this~ day of Notary Public, g[hte of My commission expires: 1435273_1.DOC 5 EXHIBIT "A" DESCRIPTION OF SALE PARCEL ALL THAT CERTAIN TRACT OR PARCEL OF LAND lying and being situated in the G. Walker Survey Abstract Number 1330, Denton County, Texas, and being part of the called 27.4367 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 790, Deed Records of Denton County, Texas, part of the called 8.773 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 797 of the Deed Records of Denton County, Texas, part of the called 3,000 acre tract described in the Deed to Andrew Corporation, recorded in volume 9t2, Page 804 of the Deed Records of Denton County, Texas, part of the called 79.4992 acre tract, described in a Deed to Andrew Corporation, recorded in Volume 912, Page 821, Deed Records, Denton County, Texas, all of the 3.59 acres of land described in the Deed to Andrew Corporation, recorded under Clerk's File Number 96-R0014833 of the Real Property Records of Denton County, Texas, and part of Andrew Addition Phase One as shown by the plat thereof recorded'in Cabinet B, Page 12 of the Plat Records of Denton County, Texas and being more particularly described as follows: Beginning at a found railroad spike at the northeast comer of the 27.4367 acre Andrew Tract in Edwards Road; Thence South 02 degrees 40 minutes 55 seconds West with the east line of the 27.4367 acre Andrew Tract a distance of 698.28 feet to a found iron pin at an angle point in the east line of the 27.4367 acre Andrew Tract; Thence South 02 degrees 43 minutes 42 secc~nds West continuing with the east line of the 27.4367 acre Andrew Tract a distance of 1249.03 feet to a found iron pin at the southeast comer of the 27.4367 acre Andrew Tract on the north line of the 22.967 acre tract to Julie K. Clark recorded under Clerk's File Number 95-R0000602 of the Real Property Records of Denton County, Texas; Thence North 87 degrees 33 minutes 17 seconds West with the south line of the 27.4367 acre Andrew Tract a distance of 622.20 feet to a found iron pin at the Southwest comer of the 27.4367 acre Andrew Tract, the northwest comer of the 22.967 acre Clark Tract, the northeast comer of the 3.59 acre Andrew. Tract, and the eastern most southeast comer of Andrew Addition; Thence South 03 degrees 19 minutes 02 seconds West with the east line of the 3.59 acre Andrew Tract and the west line of the 22.967 acre Clark Tract a distance of 472.97 feet to a fence comer post at an angle point in the east line of the 3.59 acre Andrew Tract and the northwest comer of the called 0.942 acre tract described in the Deed to Julie K. Clark recorded under Clerk's File Number 99-R0000310 of the Real Property Records of Denton County, Texas; Thence South 03 degrees 01 minute 21 seconds West continuing with the east line of the 3.59 acre Andrew Tract and the west line of the 0.942 acre Clark Tract a distance of 224.75 feet to a steel pipe at the southeast comer of the 3.59 acre Andrew Tract on the north right-of-way line of Pockrus Paige Road; 1435110__2.DOC C2-1 Thence North 87 degrees 56 minutes 40 seconds West with the south line of the 3.59 acre Andrew Tract a distance of 218.61 feet to a steel pipe at the southwest comer of the 3.59 acre Andrew Tract and the southeast comer of the tract of land described in the Deed to Betty John Robertson recorded in Volume 2423, Page 932 of the Real Property Records of Denton County, Texas; Thence North 01 degree 47 minutes 13 seconds East with the west line of the 3.59 acre Andrew Tract and the east line of the Robertson Tract a distance of 683.38 feet to a found iron pipe at the northwest comer of the 3.59 acre Andrew Tract and the northeast comer of the called 3.980 acre tract to Kenneth D. Owen recorded in Volume 763, Page 137 of the Deed Records of Denton County, Texas, on a south line of Andrew Addition; Thence North 87 degrees 39 minutes 54 seconds West with a south line of Andrew Addition and the north line of the Owen Tract a distance of 363.71 feet to a found iron pin at an inner ell comer of Andrew Addition; Thence South 03 degrees 03 minutes 00 seconds West with an east line of Andrew Addition and the west line of the Owen Tract a distance of 397.16 feet to a found iron pin; Thence South 39 degrees 11 minutes 57 seconds East with an east line of Andrew Addition and the south line of the Owen Tract a distance of 382.68 feet to a found iron pin at the southern most southeast ·comer of Andrew Addition and the southern most southwest comer of the Owen Tract on the north right-of-way line of Pockms Paige Road; Thence North 87 degrees 46 minutes 12 seconds West with a south line of Andrew Addition and the north right-of-way line of Pockrus Paige Road a distance of 26.57 feet to a found iron pin at the southern most southwest comer of Andrew Addition on the east right-of- way line of the Old M.K.T. Railroad; Thence North 39 degrees 14 minutes 16 seconds West with a west line of Andrew Addition a distance of 412.02 feet to a found iron pin at the beginning ora curve to the right; Thence with the east right-of-way Iine of the Old M.K.T. Railroad along said curve having a delta of 13 degrees 29 minutes 38 seconds, a radius of 2814.79 feet, an arc length of 662.92 feet (chord of North 32 degrees 31 minutes 18 seconds West a distance of 661.39 feet) to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849; Thence South 87 degrees 33 minutes 17 seconds East, a distance of 1302.08 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped'Metroplex 1849; Thence North 02 degrees 43 minutes 42 seconds East, a distance of 1043.62 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849; Thence North 60 degrees 11 minutes 50 seconds West, a distance of 294.75 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroptex 1849; 1435110_2.DOC C2 - 2 Thence North 03 degrees 08 minutes 54 seconds East, a distance of 587.48 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849 on the south right-of-way line of Edwards Road; Thence South 86 degrees 44 minutes 08 seconds East with the south right-of-way line of Edwards Road a distance of 434.98 feet to a found iron pin; Thence North 03 degrees 30 minutes 26 seconds East a distance of 35.49 feet to a found railroad spike in Edwards Road on the north line of the 27;4367 acre Andrew Tract; Thence South 88 degrees 03 minutes 58 seconds East with the north line of the 27.4367 acre Andrew Tract a distance of 1.72.15 feet to the POINT OF BEGINNING and containing in all 29.539 acres of land. 1435110_2.DOC C2 - 3 EXltlBIT "B" DESCRIPTION OF REVISED PREMISES ALL THAT CERTAIN TRACT OR PARCEL OF LAND lying and being situated in the G. Walker Survey Abstract Number 1330, in the M.E.P. & P.R.R. Co. Survey Abstract Number 950, and in the D. Lambert Survey Abstract Number 784, Denton County, Texas, and being part of the called 27.4367 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 790, Deed Records of Denton County, Texas, part of the called 8.773 acre tract described in the Deed to Andrew Corporation, recorded in Volume 9t2, Page 797 of the Deed Records of Denton County, Texas, part of the called 3.000 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 804 of the Deed Records of Denton County, Texas, part of the called 79.4992 acre tract, described in a Deed to Andrew Corporation, recorded in Volume 912, Page 821, Deed Records, Denton County, Texas, all of the 3.59 acres of land described in the Deed to Andrew Corporation, recorded under Clerk's File Number 96- R0014833 of the Real Property Records of Denton County, Texas, and part of Andrew Addition Phase One as shown by the plat thereof recorded in Cabinet B, Page 12 of the Plat Records of Denton County, Texas and being more particularly described as follows: Beginning at a found railroad spike at the northeast comer of the 27.4367 acre Andrew Tract in Edwards Road; Thence South 02 degrees 40 minutes 55 seconds West with the east line of the 27.4367 acre Andrew Tract a distance of 698.28 feet to a found iron pin at an angle point in the east line of the 27.4367 acre Andrew Tract; Thence South 02 degrees 43 minutes 42 seconds West continuing with the east line of the 27.4367 acre Andrew Tract a distance of 1249.03 feet to a found iron pin at the southeast comer of the 27.4367 acre Andrew Tract on the north line of the 22.967 acre tract to Julie K. Clark recorded under Clerk's File Number 95-R0000602 of the Real prOPerty Records of Denton County, Texas; Thence North 87 degrees 33 minutes 17 seconds West with the south line of the 27.4367 acre Andrew Tract a distance of 622.20 feet to a found iron pin at the Southwest comer of the 27.4367 acre Andrew Tract, the northwest comer of the 22.967 acre Clark Tract, the northeast comer of the 3.59 acre Andrew Tract, and the eastern most southeast comer of Andrew Addition; Thence South 03 degrees 19 minutes 02 seconds West with the east line of the 3.59 acre Andrew Tract and the west line of the 22.967 acre Clark Tract a distance of 472.97 feet to a fence comer post at an angle point in the east line of the 3.59 acre Andrew Tract and the northwest comer of the called 0.942 acre tract described in the Deed to Julie K. Clark recorded under Clerk's File Number 99-R0000310 of the Real Property Records of Denton County, Texas; Thence South 03 degrees 01 minute 21 seconds West continuing with the east line of the 3.59 acre Andrew Tract and the west line of the 0.942 acre Clark Tract a distance of 224.75 feet 1435273 2.DOC C2 - 4 to a steel pipe at the southeast comer of the 3.59 acre Andrew Tract on the north right-of-way line ofPockrus Paige Road; Thence North 87 degrees 56 minutes 40 seconds West with the south line of the 3.59 acre Andrew Tract a distance of 218.61 feet to a steel pipe at the southwest comer of the 3.59 acre Andrew Tract and the southeast comer of the tract of land described in the Deed to Betty John Robertson recorded in Volume 2423, Page 932 of the Real Property Records of Denton County, Texas; Thence North 01 degree 47 minutes 13 seconds East with the west line of the 3.59 acre Andrew Tract and the east line of the Robertson Tract a distance of 683.38 feet to a found iron pipe at the northwest comer of the 3.59 acre Andrew Tract and the northeast comer of the called 3.980 acre tract to Kenneth D. Owen recorded in Volume 763, Page 137 of the Deed Records of Denton County, Texas, on a south line of Andrew Addition; Thence North 87 degrees 39 minutes 54 seconds West with a south line of Andrew Addition and the north line of the Owen Tract a distance of 363.71 feet to a found iron pin at an inner ell comer of Andrew Addition; Thence South 03 degrees 03 minutes 00 seconds West with an east line of Andrew Addition and the west line of the Owen Tract a distance of 397.16 feet to a found iron pin; Thence South 39 degrees 11 minutes 57 seconds East with an east line of Andrew Addition and the south line of the Owen Tract a distance of 382.68 feet to a found iron pin at the southern most southeast comer of Andrew Addition and the southem most southwest comer of the Owen Tract on the north right-of-way line ofPockrus Paige Road; Thence North 87 degrees 46 minutes 12 seconds West with a south line of Andrew Addition and the north fight-of-way line of Pockrus Paige Road a distance of 26.57 feet to a found iron pin at the southern most southwest comer of Andrew Addition on the east right-of- way line of the Old M.K.T. Railroad; Thence North 39 degrees 14 minutes I6 seconds West with a west line of Andrew Addition a distance of 412.02 feet to a found iron pin at the beginning ora curve to the right; Thence with the east right-of-way line of the Old M.K.T. Raikoad along said curve having a delta of 26 degrees I1 minutes 57 seconds, a radius of 2814.79 feet, an arc length of 1287.10 feet (chord of North 26 degrees 10 minutes 09 seconds West a distance of 1275.92 feet) to a found iron pin; Thence North 13 degrees 00 minutes 38 seconds West continuing with the east right-of- way tine of the Old M.K.T. Railroad and the west line of Andrew Addition a distance of 1221.59 feet to a found iron pin at the beginning of a curve to the left; Thence continuing with the east right-of-way tine of the Old M.K.T. Railroad along said curve having a delta of 09 degrees 53 minutes 43 seconds, a radius of 1959.24 feet, an arc length of 338.37 feet (chord of North 17 degrees 58 minutes 31 seconds West a distance of 337.99 feet) to a set iron pin with a yellow plastic cap stamped "Metroplex 1849" on the south right-of-way 1435273 2.DOC C2 - 5 line of Mayhill Road as described in the Street Right-of-Way Deed to the City of Denton recorded in Volume 4936, Page 1841 of the Real Property Records of Denton County, Texas at the beginning of a curve to the left; Thence with the south right-of-way line of Mayhill Road along said curve having a delta of 01 degree 17 minutes 13 seconds, a radius of 540.00 feet, an arc length of 12.13 feet (chord of North 66 degrees 07 minutes 51 seconds East a distance of 12.13 feet) to a set "X" in concrete at the intersection of the south right-of-way line of Mayhill Road and the west right-of-way line of Edwards Road as described in the Street Right-of-Way Deed to the City of Denton recorded in Volume 4936, Page 1841 of the Real Property Records of Denton County, Texas; Thence South 27 degrees 41 minutes 50 seconds East with the west right-of-way line of Edwards Road a distance of 147.27 feet to a set iron pin with a yellow plastic cap stamped "Metroplex 1849" at the beginning of a curve to the left; Thence continuing with the west right-of-way line of Edwards Road along said curve having a delta of 59 degrees 01 minute 36 seconds, a radius of 330.00 feet, an arc length of 339.97 feet (chord of South 57 degrees 12 minutes 38 seconds East a distance of 325.13 feet) to a set iron pin with a yellow plastic cap stamped "Metroplex 1849"; Thence South 86 degrees 44 minutes 08 seconds East with the south right-of-way line of Edwards Road a distance of 1797.84 feet to a found iron pin; Thence North 03 degrees 30 minutes 26 seconds East a distance of 35.49 feet to a found railroad spike in Edwards Road on the north line of the 27.4367 acre Andrew Tract; Thence South 88 degrees 03 minutes 58 seconds East with the north line of the 27.4367 acre Andrew Tract a distance of 172.15 feet to the POINT OF BEGINNING and containing in all 91.921 acres of land. LESS AND EXCEPT THE FOLLOWING PARCEL: ALL THAT CERTAIN TRACT OR PARCEL OF LAND lying and being situated in the G. Walker Survey Abstract Number 1330, Denton County, Texas, and being part of the called 27.4367 acre tract described in the Deed to Andrew Corporation, recorded in Volume 912, Page 790, Deed Records of Denton County, Texas, part of the called 8.773 acre tmet described in the Deed to Andrew Corporation, recorded in Volume 912, Page 797 of the Deed Records of Denton County, Texas, part of the called 3,000 acre tract described in the Deed to Andrew Corporation, recorded in volume 912, Page 804 of the Deed Records of Denton County, Texas, part of the called 79.4992 acre tract, described in a Deed to Andrew Corporation, recorded in Volume 912, Page 821, Deed Records, Denton County, Texas, all of the 3.59 acres of land described in the Deed to Andrew Corporation, recorded under Clerk's File Number 96-R0014833 of the Real Property Records of Denton County, Texas, and part of Andrew Addition Phase One as shown by the plat thereof recorded in Cabinet B, Page 12 of the Plat Records of Denton County, Texas and being more particularly described as follows: Beginning at a found raikoad spike at the northeast corner of the 27.4367 acre Andrew Tract in Edwards Road; 1435273_2 .DOC C2 - 6 Thence South 02 degrees 40 minutes 55 seconds West with the east line of the 27.4367 acre Andrew Tract a distance of 698.28 feet to a found iron pin at an angle point in the east line of the 27.4367 acre Andrew Tract; Thence South 02 degrees 43 minutes 42 seconds West continuing with the east line of the 27.4367 acre Andrew Tract a distance of 1249.03 feet to a found iron pin at the southeast comer of the 27.4367 acre Andrew Tract on the north line of the 22.967 acre tract to Julie K. Clark recorded under Clerk's File Number 95-R0000602 of the Real Property Records of Denton County, Texas; Thence North 87 degrees 33 minutes 17 seconds West with the south line of the 27.4367 acre Andrew'Tract a distance of 622.20 feet to a found iron pin at the Southwest comer of the 27.4367 acre Andrew Tract, the northwest comer of the 22.967 acre Clark Tract, the northeast comer of the 3.59 acre Andrew Tract, and the eastem most southeast comer of Andrew Addition; Thence South 03 degrees 19 minutes 02 seconds West with the east hne of the 3.59 acre Andrew Tract and the west line of the 22.967 acre Clark Tract a distance of 472.97 feet to a fence comer post at an angle point in the east line of the 3.59 acre Andrew Tract and the northwest comer of the called 0.942 acre tract described in the Deed to Julie K. Clark recorded under Clerk's File Number 99-R0000310 of the Real Property Records of Denton County, Texas; Thence South 03 degrees 01 minute 21 seconds. West continuing with the east line of the 3.59 acre Andrew Tract and the west line of the 0.942 acre Clark Tract a distance of 224.75 feet to a steel pipe at the southeast comer of the 3.59 acre Andrew Tract on the north right-of-way line ofPockms Paige Road; Thence North 87 degrees 56 minutes 40 seconds West with the south line of the 3.59 acre Andrew Tract a distance of 218.61 feet to a steel pipe at the southwest comer of the 3.59 acre Andrew Tract and the southeast comer of the tract of land described in the Deed to Betty John Robertson recorded in Volume 2423, Page 932 of the Real Property Records of Denton County, Texas; Thence North 01 degree 47 minutes 13 seconds East with the west line of the 3.59 acre Andrew Tract and the east line of the Robertson Tract a distance of 683.38 feet to a found iron pipe at the northwest comer of the 3.59 acre Andrew Tract and the northeast comer of the called 3.980 acre tract to Kenneth D. Owen recorded in Volume 763, Page 137 of the Deed Records of Denton County, Texas, on a south line of Andrew Addition; Thence North 87 degrees 39 minutes 54 seconds West with a south line of Andrew Addition and the north line of the Owen Tract a distance of 363.71 feet to a found iron pin at an inner ell comer of Andrew Addition; Thence South 03 degrees 03 minutes 00 seconds West with an east line of Andrew Addition and the west line of the Owen Tract a distance of 397.16 feet to a found iron pin; Thence South 39 degrees 11 minutes 57 seconds East with an east line of Andrew Addition and the south line of the Owen Tract a distance of 382.68 feet to a found iron pin at the 1435273_2.DOC C2 - 7 southern most southeast comer of Andrew Addition and the southern most southwest comer of the Owen Tract on the north right-of-way line ofPockrus Paige Road; Thence North 87 degrees 46 minutes 12 seconds West with a south linc of Andrew Addition and the north right-of-way line of Pockrus Paige Road a distance of 26.57 feet to a found iron pin at the southern most southwest comer of Andrew Addition on the east right-of- way line of the Old M.K.T. Railroad; Thence North 39 degrees 14 minutes 16 seconds West with a west line of Andrew Addition a distance of 412.02 feet to a found iron pin at the beginning of a curve to the right; Thence with the east right-of-way line of the Old M.K.T. Raikoad along said curve having a delta of 13 degrees 29 minutes 38 seconds, a radius of 2814.79 feet, an arc length of 662.92 feet (chord of North 32 degrees 31 minutes 18 seconds West a distance of 661.39 feet) to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849; Thence South 87 degrees 33 minutes 17 seconds East, a distance of 1302.08 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849; Thence North 02 degrees 43 minutes 42 seconds East, a distance of 1043.62 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849; Thence North 60 degrees 11 minutes 50 seconds West, a distance of 294.75 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849; Thence North 03 degrees 08 minutes 54 seconds East, a distance of 587.48 feet to a 1/2 inch iron pin set with a yellow plastic cap stamped Metroplex 1849 on the south right-of-way line of Edwards Road; Thence South 86 degrees 44 minutes 08 seconds East with the south right-of-way line of Edwards Road a distance of 434.98 feet to a found iron pin; Thence North 03 degrees 30 minutes 26 seconds East a distance of 35.49 feet to a found railroad spike in Edwards Road on the north line of the 27.4367 acre Andrew Tract; Thence South 88 degrees 03 minutes 58 seconds East with the north line of the 27.4367 acre Andrew Tract a distance of 172.15 feet to the POINT OF BEGINNING and containing in all 29.539 acres of land. 1435273_2.DOC C2 - 8 AGENDA INFORMATION SHEET AGENDA DATE: March 22, 2005 DEPARTMENT: Planning and Development ACM: Jori Fortune, Assistant City Manager SUBJECT: V05-0009 (84 Lumber Perimeter Paving) Consider an exaction variance of Section 35.20.2(L.3.a.) of the Code of Ordinances for improvements to a perimeter street. The approximately 12.8-acre parcel is in an Industrial Center, Employment (lC-E) zoning district and is generally located south of Jim Christal Road at GC & SF Railroad, adjacent to 1-35. The Planning and Zoning Commission recommends approval (3-2). BACKGROUND: Robert Baldwin, agent for Browne Industrial Park/84 Lumber, applied for a full exaction variance of Section 35.20.2(L.3.a.) for perimeter street improvements. Specifically he requests to vary from the requirements that "any development on the perimeter of an unimproved perimeter street shall dedicate the right-of-way and improve or reconstruct the street to the same extent as is required for new perimeter streets", and "in no case shall that portion of the street provided be less than a pavement width of twenty-five (25) feet plus required bicycle lane in the case of an arterial." A detailed letter from the applicant is attached (Attachment 3). Applicant proposes to replat the property to include the addition of approximately 3.2 acres of unplatted property to the existing platted lot of approximately 9.7 acres for an 84 Lumber Yard. The applicant intends to dedicate ROW along the entire frontage of this property (36.5 feet from the Jim Christal Road centerline as required for a 73 foot commercial mixed use collector). The applicant proposes to make no pavement improvements to Jim Christal Road. In this area, Jim Christal Road is a two lane rural roadway ending at the GC & SF Railroad. The City has no plans to extend Jim Christal Road across the railroad since the City relinquished and removed this crossing in order to gain the crossing for West Oak Street. The type and number of trucks that will be using Jim Christal Road may quickly compromise it and cause the City to make repairs or replacements that are not currently budgeted. PRIOR ACTION/REVIEW (Council, Boards, Commissions) When the subject property was previously platted, the City granted exaction variances for perimeter paving and cul-de-sac requirements because the applicant was proposing to limit the amount of development on the property by establishing the majority of the property as pervious area and the proposed driveway was located on the far west side of the property, eliminating the need for paving in from of the property because the street was a dead end at the east property line. This is no longer the plan since applicam proposes more developmem on the property and the driveway is being moved further east (Attachmem 2). Additionally, the property directly across the road was recemly replatted as the Harley Addition (approved 8/27/03). The replat triggered perimeter-paving requiremems, which the applicam sought a variance from. As the plat was to divide the property for ownership purposes and the owners agreed to deed restrict the property to not allow additional development of the site, staff and the Planning and Zoning Commission recommended approval of the variance and City Council approved the perimeter paving variance on August 5, 2003. This is important, because at the February 23, 2005 Planning and Zoning hearing (Attachment 6) the applicant stated that they were seeking the same treatmem as the property across the street (Harley Addition). The difference though, is that this developmem will be adding new traffic to Jim Christal Road while the Harley Addition didn't. The Planning and Zoning Commission considered the exaction variance request (V03-0028) for this site for both ROW and perimeter paving and recommended denial (Attachmem 4). The exaction variance was considered by City Council December 2, 2003 as a consem item and denied (Attachmem 5). FISCAL INFORMATION N/A RECOMMENDATION The Planning and Zoning Commission recommends approval 3-2 (Watkins & Thibodeaux opposed, Strange absem). The Planning and Zoning Commission used the following Developmem Code criteria in considering this variance: b) Where the commission finds that the imposition of any development exaction pursuant to these regulations exceeds any reasonable benefit to the property owner or is so excessive as to constitute confiscation of the tract to be platted, it may recommend approval of variances to waive such exaction's, so as to prevent such excess, to the City Council. The price paid for the parcel or the cost of the proposed building improvements is not a factor in determining reasonable costs. The question to be considered is the following: Are the costs associated with the public improvement reasonable and consistent with the type of development proposed and the demand for services created by the development? Current construction costs for 25 feet of pavement with curb/gutter for a collector street is estimated at $75/linear foot. Frontage of 220 feet would have to be constructed to City standards, per staff recommendation, resulting in an estimated cost of $16,500.00 for the pavement improvements. 2 This item is not on the consent agenda since the Planning and Zoning Commission recommended a partial exaction variance with the conditions listed below and the staff recommended denial of the full exaction request: Be required to construct Jim Christal Road to a minimum of 25ft wide pavement per current City standards (including, but not limited to curb/gutter and drainage) from the west property line to the eastern edge of the driveway to either this site or the property on the north side, whichever is farthest east and not be required to construct Jim Christal Road from the eastern edge of the driveway to either this site or the property on the north side, whichever is farthest east, to the GC & SF Railroad ATTACHMENTS 1. Location map 2. Site Plan 3. Applicant's letter 4. Applicable excerpt of P&Z minutes of November 12, 2003 5. Applicable excerpt of City Council minutes of December 2, 2003 6. February 23, 2005 P & Z minutes Prepared by: ~sistant of Planning and Development Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development Attachment 1 4 SITE ENLARGEMENT BUILDLNG ~2 PROPOSE£ 8 400 S.F, STORAGE SHLD 210' \\ l 106' 10' FRONT YARD SE13ACK § z Attachment 3 Baldwin Associates February 1, 2005 Ms. Dom~a Bateman City of Denton Planning and Development Department 601 E Hickory Denton, TX 76201 Re: FP04-0037 - Browne Industrial Park Dear Donna, Please'accept this letter as my official request for a waiver to the perimeter paving requirement for the above-referenced plat. Given the development patterns in the area, coupled with the railroad tracks impeding access to the east, it is our opinion that a Jim Christal Road in this location does not function as a Mixed Use Collector street and the current paving is adequate. Thank you for your assistance with this matter. If you have any questions, or need any additional information, please do not hesitate to contact me. With kind regards, Robert B. Baldwin, AICP 401 Exposition · · Daltas, Texas 75226 · · Phone 214-824-7949 · · Fax 2|4-821-7980 Attachment 4 EXCERPT FROM DRAFT P&Z MINUTES OF NOVEMBER 12, 2003 AS PROVIDED IN CITY COUNCIL PACKET FOR DECEMBER 2, 2003 4. ITEMS FOR INDIVIDUAL CONSIDERATION: Hold a public hearing and consider the following items: A. Exaction variances for property containing approximately 9.7 acres, located on the south side of Jim Christal Road, west of the GC & SF Railroad. The property is currently in an Industrial Center-Employment (IC-E) zoning district. Buildings currently exist on the site and new construction is proposed. (V03-0028, Browne Warehouse perimeter paving and ROW variance, Kevin Roberts). 1. 35.20 (L.3.a.) of the Code of Ordinances concerning improvements to a perimeter streets and, 2. 35.20.2 (H. 1.) of the Code of Ordinances concerning the dedication of right of way for all streets that serve a commercial lot (regarding ROW for a cul-de-sac at the end of Jim Christal Road at its intersection with the CaE & SF Railroad). David Salmon, City Engineer, briefed Commission members on the variance request. Vikki Oppenheim, with Isabell Engineering, spoke as a representative for the owners. She discussed with Commission members the reason for the variance request. After discussion, Commissioner Powell made a motion to deny the variance request. Seconded by Commissioner Holt. Motion carried S-1. Commissioner Roy absent. The vote was as follows: Commissioner Powell - aye, Commissioner Holt - aye, Commissioner Strange - aye, Commissioner Watkins - aye, Commissioner Mulroy - aye, Commissioner Johnson - flay. Attachment 5 EXCERPT FROM CITY COUNCIL MINUTES City of Denton City Council Minutes December 2, 2003 Page 3 3. CITIZENS REPORTS A. The Council received citizen reports from the following: 1. Ross Melton Jr. regarding nice things about Denton. Mr. Melton complemented the City's Utilities Department, specifically Howard Martin and Rita Herrara; Municipal Court worked real well and Judge Ramsay and Stephanie Berry were doing a great job; Solid Waste department was a credit to the City and represented the City well; street construction would feel so good when it stopped. 2. Ed Soph regarding Eureka Park and South Lakes Park. Mr. Soph spoke regarding Eureka Park at South Lakes Park. He stated that the DISD had removed all CCA-treated wood from their playgrounds and also the contaminated soil had been removed. He felt that the signage at Eureka Park was incomplete. He felt that the wood on the playground should be sealed twice a year, dangerous/splintered wood removed and/or replaced, and testing done more often. He would like to see the City raise the money to rebuild Eureka Park. 3. Robert Karo regarding Cooper Creek Trail. Mr. Kam stated that he would like to see the area off Wolt~rap preserved as part of the proposed Greenway Corridor in the Master Plan. He suggested including it in the Cooper Glen Open Space or the Windsor Drive Open Space. 4. CONSENT AGENDA Mayor Brock indicated that the November 18, 2003 minutes had been pulled from consideration. She indicated that Item 4E had been pulled for separate consideration. Burroughs motioned, McNeill seconded to approve the Consent Agenda and accompanying ordinances with the exception of Item 4E and the November 18, 2003 minutes. On roll vote, Burroughs "aye", Kamp "aye". McNeilt "aye", Montgomery "aye", Redmon "aye", Thomson "aye", and Mayor Brock "aye". Motion carried unanimously. Item 4E was considered. Charles Fiedler, Director of Engineering, stated that this project was part of the State of Texas Urban Street Program. He stated that the bid was for spot repairs to existing concrete paving on Carroll Boulevard from Eagle Drive to Egan Drive. He stated that TxDOT was contributing matching funds. The work needed to be completed before August 2004 or the City would lose TxDOT's matching funds. Burroughs motioned, Kamp seconded to approve Item 4E. On roll vote, Burroughs "aye", Kamp "aye". McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye", and Mayor Brock "aye". Motion carried unanimously. City of Denton City Council Minutes December 2, 2003 Page 4 Consider approval of the minutes of October 14, October 21, October 27, November 4, and November 11, 2003. 2003-379 - 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 3118 - Electrical Energy Transmission Fees in the total amount of $255,920). 2003-380 - An ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with Black and Veatch Corporation, for professional consulting services relating to the Denton Municipal Utilities Water Utilities Cost of Service and Rate Design Study; authorizing the expenditure of funds therefor and providing an effective date. Do 2003-381 - An ordinance of the City Council of the City of Denton, Texas authorizing the City Manager to execute a professional services agreement with Miner & Miner Consulting Engineers, Inc. for professional engineering services relating to migrating the existing Denton Municipal Electric Geographic Information System ("GIS") database from ARCFM version 7.2 to ARCFM version 8.3; authorizing the expenditure of funds therefor; and providing an effective date. 2003-382 - An ordinance accepting competitive bids and awarding a public works contract for the construction of the Carroll Boulevard Urban Street Program miscellaneous street repair; providing for the expenditure of funds therefor; and providing an effective date (Bid 3048 - Urban Street Program Carroll Boulevard awarded to Silver Creek Construction, lnc. in the amount of $407,905). 2003-383 -An ordinance of the City of Denton, Texas accepting competitive bids and awarding a best value annual contract for a three-year agreement for the purchase of 15/20/25 MVA power transformers; providing for the expenditure of funds therefor; and providing an effective date (Bid 3105 - Three Year Agreement for the Purchase of Power Transformers awarded to Waukesha Electric Systems in the estimated amount of $2,597,758). 2003-384 - An ordinance of the City of Denton, Texas requesting Non-Primary Entitlement Funds from the Texas Department of Transportation for a project for the purchase and installation of airport radio equipment at the Denton Municipal Airport; authorizing and directing the City Manager or his designee to execute documents on behalf of the City of Denton in order to implement the project; and providing an effective date. Ho 2003-385 - An ordinance of the City of Denton authorizing the .City Manager to execute on behalf of the City of Denton an Airport Project Participation Agreement with the Texas Department of Transportation relating to the City of Denton City Council Minutes December 2, 2003 Page 5 construction of improvements at the Denton Municipal Airport; and declaring an effective date. 2003-386 - An ordinance authorizing the City Manager or his designee to execute a Real Estate Contract for the purchase of approximately 17.992 acres being part of a tract of land situated in the J. Douthitt Survey, Abstract Number 329, as described in the deed from Sally H. Mudd to Mark Anthony Mudd and Chad James Mudd recorded under clerk's file number 95-R00533339, of the real property records of Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. 2003-387 - An ordinance approving an agreement between the City of Denton and Mayhill Road Investors, L.P. for the partial abandonment of a Public Utility Easement dated August 13,1991 and recorded in the real property records of Denton County under Volume 3047, Page 778 as it affects land owners real property as described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference and being located in the M.E.P. & P.R.R. Survey, Abstract Number 950, Denton County, Texas, authorizing the City Manager or his designee to execute said agreement on behalf of the City of Denton and providing an effective date. Denial of exaction variances for a parcel containing approximately 12.9 acres, which is located on the South side of Jim Christal Road West of the GC & SF Railroad. The property was currently designated as an Industrial Center, Employment (IC-E) zoning district. Buildings currently exist on the site and new construction was proposed. The owners of the property operated a trucking company. The Planning and Zoning Commission recommended denial of the variance s (5 - 1 ). (V03-0028) 1. Section 35.20.2(L.3.a.) of the Code of Ordinance concerning pavement improvements to a perimeter street. 2. Section 35.20.2(H. 1 .) of the Code of Ordinance concerning the dedication of right of way for all streets that serves a commercial lot (regarding ROW for a cul-de-sac at the end of Jim Christal Road at its intersection with the GC & SF Railroad). 2003-388 - An ordinance of the City of Denton, Texas approving an interlocal Cooperation Agreement between the City of Denton and Denton County for the regulation of subdivisions in the Extraterritorial Jurisdiction of the City of Denton; and providing an effective date. A request to decertify a portion of the City of Denton's Water CCN to support an application for an exempt utility status from the TCEQ for the Heifer Water System. 'The Public Utilities Board unanimously approved this item. Council approved the following resolution in conjunction with approval of the request to decertify a portion of the City's Water CCN: R2003-043 - A resolution of the City Council of the City of Denton, Texas authorizing the City Manager, or his designee, the authority to decertify a portion City of Denton City Council Minutes December 2, 2003 Page 6 of the City of Denton's Water Certificate of Convenience and Necessity ("CCN"), in order to satisfy Texas Commission on Environmental Quality ("TCEQ") requirements, regarding the application for exempt utility status to be filed by the Heifer Water Well System; and providing for an effective date. 5. PUBLIC HEARINGS A. The Council held a public hearing inviting citizens to comment on the proposed usage of the 2003 Local Law Enforcement Block Grant funding. Captain Lee Howell, Police Department, stated that the funds would be used for the purchase of equipment, digital cameras and related software to enhance the processing and collection of photographic evidence of crime scenes and victims; equipment and training on less-than-lethal force options for the purpose of providing officers various methods of disarming and apprehending potentially violent offenders prior to the use of deadly force; surveillance cameras, monitors, and security systems for the purpose of enhancing the physical security of the Police Department and Court facility. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. 6. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered a request for an exception to the Noise Ordinance for the purpose of "Christmas on the Square" hosted by Grace Temple Baptist Church, to be held in front of Denton Community Church at 115 N. Elm on Sunday, December 7, 2003 from 6:00 p.m. to 8:45 p.m. Pamela Rambo-Estill, Assistant to the City Manager, stated that this event had been held on the square for the last six years. She stated that this event was not the Holiday Lighting Event. Burroughs motioned, McNeill seconded to approve the request. On roll vote, Burroughs "aye", Kamp "aye", McNeill "aye", Montgomery "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered approval of a resolution of the City of Denton, Texas canceling the regular council meeting scheduled for December 16, 2003, to allow Council Members and City staff to travel to New Orleans to support the UNT Sun Belt Conference Championship Football Team, which will play in the New Orleans Bowl; and declaring an effective date. The following resolution was considered: CondcnseltTM 1 PROCEEDINGS 2 COMM[$S£ON~-R HOLT; coed evening. There is 3 a quorum present tonight, and I would like to call the 4 February 23rd, 2005 meeting of the Planning and Zoning 5 Cotmuission to order. I'd llke to ask you to join us in 6 the pledge to the flag. 7 (Thereupon, the Pledges of Allegiance were 8 recited.) 9 COMMISSIONER HOLT: The next item on our 10 . Agenda is the approval of the minutes of the February 9th 11 meeting, 2005. 12 COMMISSIONER ROY: I'd urove approval. 13 COMMISSIONER TH[BODEAUX: second. 14 COMMISSIONER HOLT: approval by Mr. Roy, 15 second by Dr. Thibodeaux. I'd like to call for a vote. 16 0TEM e^SSED 5-00 [ 7 COMMISSIONER HOLT: Next item is our 18 Consent Agenda. Tile Planning and Zoning has had an 19 opportunity to mcct with our -- in work session with our 20 staff to discuss these items on file Consent Agenda. Any 21 questions have been addressed and I would ask for a motion 22 on the Consent Agenda, 23 COMMIS$1ONERWATK[NS: MOtion to approve. 24 COMMISSIONER ROY: second. 25 COMMISSIONER HOLT: There'S a motion and a Page 2 1 second. Call for a vote. Thank you. It's five in favor 2 of. 3 Next item will be for individual 4 consideration. I'd like to call ca Larry Reichhart. 5 MR. REICHHART: Thank you. The next two 6 i~ms are related to the same property, It's variance 7 V-05-004, which is a physical hardship variance for 8 sidewalks, and thcs V-05-009, which is a request for an 9 exaction variance for parameter paving. I have on the l0 overhead tile property locations on thc south side of Jim 11 Chrysml Road west of 1-35. I provided a little bit -- 12 zomn up. See r/ght adjacent to this site, right along 13 here is a railroad track, Sim Chrystal Road currently 14 deadcnds right ha'e. And the City does not have any plans 15 1o extend it over tile railroad track. If I recall, this 16 crossing was basically given up ia order to get another 17 crossing. 18 Typically, if you want a raikoad ~rossing 19 over a railroad track, typically, you have to negotiate 20 and give up two crossings in order to get one, Bm file 21 City doc:s not have any plans to extend that road. The 122 applicant has provided us some visuals that we can look 23 at. This is -- it will get there itl a second. 24 This is the applicam's driveway, We're 25 looking west on Jim Chrystal and then standing at about Page 3 the driveway looking back at the railroad tracks, you 2 the road deadends. This is lhe applieam's property. 3 , Shaft is recommending denial of the 4 sidewalk variance, In the backup, a previous applicant 5 came forward and requested sidewalk and parameter paving 6 variances that were denied. 7 Tills is a new applicant now and they can 8 explain, you know, their thou~t process behind that. But 9 typically, the variance was grant~l between tile proposed 10 driveway heading towards the raikoad track. So this area 11 right her~ on the site plan already has the variance for 12 no sidewalk. The request now is for along thc fromage in 13 this location of the site. The parameter paving is across 14 thc entire frontage, That's what is required through the 15 platting process. I should say that an 84 Lmnber Yard is 16 proposed on the site. 17, Staff is recoimnending a partial variance 18 that file parameter paviog be constructed along tile 19 frontage up through the driveway and -- file two driveways 20 basically line up and we say whichever driveway is l~thcr 21 to tile east, which will be the applicant's driveway. So 22 there's a short portion of tile road that we agree that it 23 doesn't make sense to reconstruct but we feel with thc 24 ~ traffic associated wJth the lmnber yard, that there would 25 be additional wear and tear on the road and staff is Page 4 requesting or rcco~mnending a partial variance for the 2 parameter paving requirements. 3 With that, I'd be happy to answer any 4 questions. I do know the applicant is here and does have 5 a prcsentetion, but I'd be happy to answer any questions. 6 We'll need two separate votes for these items. 7 COMMISSIONER flOLT: Al~: there any qnestions 8 for staff'? Would the applicant like to come forward? 9 MR. BALDWIN: Good evening. My name is Rob 10 Baldwin. My address is 401 Expedition Avenne in Dallas. 11 And I'm here representing 84 Lmuber tonight and our 12 request for these two variances. 13 As Larry said, we're proposing an 84 Lumber 14 Facility here, which t don't know if you're familiar with 15 84~ It's not like a Home Depot. It's catered towards 16 builders. There's a very small, less than 3,000 square 17 feet retailarea. The rest is just lumberyard. What 18 happens is contractors call up in tile morning and say we 19 need such and such and such and such delivered. The 20 tracks 'leave the facility and then go to file -- actual to 21 tile yard, pick up their materials and go to the site, so 22 there's not a lot of traffic coming in and out of hc*e 23 much less fewer trips than 100 a day is what our -- we 24 expect. 25 Most of those will be on tracks that are PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 1 - Page 4 CondcnscltTM Page 5 1 just a lillle bit longer than a bobtail trailer. They're 2 not the heavy-duty semi's, so there's not a lot of traffic 3 on this road. And that's one ef the reasons we don~t 4 think that constructing half a major collector makes sense 5 hem especially since it dead-ends on the property. It's 6 never going to across tho railroad tracks. 7 In addition, tho property across file street 8 which is a warehouse-type facility that you saw on the 9 aerial, it's my understanding, that was granted a waiver 10 to both pnrame'~r paving and sidewalk and we're asking 11 that we bo treated the same as they am. 12 If we build half a street, that doesn't 13 seem to make sense because only -- you know} half a 14 concrete street, half an asphalt street. And since that 15 other properly is already platted and built, the chances I 16 think of the City actually coming in and building the 17 other half of the street seems like a farfetched idea. If 18 we put money in escrow, I don't think that it will ever be 19 used. So we just think it makes sense given their 20 traffic, file kind of traffic that's going to be on the 21 street and the dcvdopmenl in the area that these waivers 22 make sense. 23 I'm here to answer any questions you may 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 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 2O 21 22 23 Page full street cross section. You see what I mean? COMMISSIONER ROY: So your understanding is the City actually expects you to go out and pave half file street, and the other half will remain unpaved? MR. BALDWIN: Yes, sir. COMMISSIONER ROY: Or -- or to pt~l tile money in escrow so that the City would then pave it all at once? MR, BALDWIN: Right. COMMISSIONER ROY: and you're objecting to both of those? MR. BALDWIN: YeS, sir. COMMISSIONER ROY: NOW, would yon say again -- you're saying you don't think that you're -- you wdl add any more traffic? Maybe I misunderstood. MR. BALDWIN: NO, I~nl not saying that -- obviously, we are going to add some more traffic than is there today. Right now, well, up until recently it was a trucking facility, so we'll probably add less trips thaa that trackJng facility bad, but we're probably about thc same amount of trips that is currently occurring at the industrial plant across the street from us. So we are going to add trips un doubt about have on why we're here, what we de, how we do it. And I hope Slat you can support what we're proposing. Page 6 COMMISSIONER HOLT: A~ thoro any questions for the applicant? Mr. Roy. COMMISSIONER ROY: okay. You're asking not to have to pave that street. The street now has very little traffic on it as best I can tell. MR. BALDWIN: Yes, sir. COMMISSIONER ROY: I'Ve been out there several times because we've been asked to, you know, make decisions on dais property several times and lime you're goiBg to have according to your estimate 100 trucks a day, 24 that. It's -- right now, nothing is happening on the 25 site. But I don't think we're going to be adding enough Page 8 I trips to wan'ant building 25 feet of pavemem, you know, 2 one and a half lanes of concrete, the length of our 3 property. Actually, it's one lane and a parking lane. So 4 essentially, two lanes on om' s~de of the street. 5 COMMISSIONER ROY: And would you say again, 6 let's switch from roads now to sidewalk. Would you 7 explain why you don't feel it's a good idea to go ahead 8 and put that section of sidewalk there? 9 MR. BALDWIN: We just dOll't believe that 10 anybody's actually going to walk out here. There's -- on Ma. BACBW~N: A hundred ~l'ips, so about 50 trucks, so you have your in and ont. COMMISSIONER ROY: weIl~ okay. So there will be 50 trucks -- 100 times something is going up and down this road. Help us logically understand why the street should not be paved because you're going to be adding all of this traffic. And if you -- MR. BALDWIN: I don't think we'll be adding auy mo~c traffic that cornea in and out with the workers at file existing manufacturing facility that's there. And again, it goes back to equity, we're being required to pave half a street, not the entire street, just our half for the length of our property. So you're going to have two different street -- you're not even going to have a 11 the east side it goes nowhere, And that variance has been 12 granted, which I think nmkes sense. But on file west side, 13 it's going to probably -- it's zoned industrial, so 14 probably it will develop as another industrial property, 15 and I just don't see people walking between two 16 industrial-type uses. That's my feeling. I'm sure other 17 people might have different thoughts about that, but 18 that's what I believe. 19 COMMISSIONER ROY: thank you. 20 MR. BALDWIN: And there' s no sidewalk 21 across file ~treet, ~o, obviously, someone else felt the 22 same way at one point. 23 COMMISS[©NER HOLT: Any moro questions for 24 lite applicant? Mr. Watkins. 25 COMMISSIONERWATKINS: Thank you very mush. PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 5 - Page CondonseIt m Page i I hear what you're saying and I can relate to that a 2 couple of years ago. What I sec across thc highway from 3 you is a whole lot of walklog area. I -- 4 MR, BALDWIN: on tile east side of IO57 5 COMMISSIONER WATKINS: Yes. 6 MR, BALDWIN: okay. 7 COMMISSIONERWATKINS: About 40 acres. And 8 it's separated by an interstate highway and a raikoad. 9 MR. BALDWIN: Right. 10 COMM[SSIONERWATKINS: But there was a 11 railroad that went to Dallas one thno, too. And it 12 doesn't anymore. So I'm -- and I'm familiar with 84 13 Lumber and like them very much, I have bou~t from them 14 very much. But by the same token, it seems a little out 15 of place. i6 MR. BALDWIN: okay. 17 COMMISSIONER WATKINS: YOU can Sea what 18 19 20 21 22 23 24 25 talking -- you've driven out there? You've looked? MR. BALDWIN: oh, I Was just out there a half an hour ago, But I think the uses on the east side of the highway and rite uses on the west side of the highway will be quite different. COMMISSIONER WATKINS: TrUe. But I think it's owned by the stone estate, is it not? MR. BALDWIN: Actually, 84 Lmnber owns that 9 Page I 1 1 see that ag a walking area. And I don't see it as an area 2 that's going to have any comanercifil development per se, 3 it's going to be indus~a'ial. It's going to b~ warehouse. 4 And it's -- even with that it still has challenges from a 5 transportation standpoint because it's hard to get to. 6 COMMISSIONER WAIKINS: Yeah, And you're 7 headed toward thc airport. That would be one of tile few 8 ways to get to the airport. 9 MR. BALDWIN: Yeah. 10 COMMISSIONERWATK[NS: okay. WcII, thaok 11 you. I just had some questions. 12 MR. BALDWIN: Sure. I understand your 13 concerns. 14 COMMISSIONER HOLT: Mr. Roy. 15 COMMISSIONER ROY: If I may ask you to step 16 aside for a second and let me ask staff a question. I was 17 not present at the Colmnisslon meeting in wlfich this issue 18 19 20 21 22 23 24 25 Page 10 1 property now, so -- 2 COMMISSIONER WATK1NS: who owns the 3 property around you? 4 MR. BALDWIN: The Rayzor tinnily. 5 COMMISSIONER WATKINS: And they own the 6 property on thc east side, also, right? 7 MR. BALDWIN: I o- that I don't know for 8 sure, 9 COMMISSIONER WATKINS: And I have no l0 earthly idea of what will be built there. But I've got a 11 little bit of a proNem in saying, well, you donlt need 12 those things because it's an industrial site. It is. But 13 so was that hospital site before it was a hospital. And I 14 think in April it will open. 15 MR. BALDWIN: Yeah. 16 COMMISSIONER WATK[N$: SO I'm -- you know, 17 convince me. 18 MR. BALDWIN: well, I think the trick, if 19 there ls some convincing to be done is that you can't get 20 there froro here. The only way to get to this site, is to 21 go down Oak and around on to Jim Chrystal to get them. 22 You can't -- you can't cross the freeway, the railroad 23 tracks to get to the freeway. It's not in the major 24 thoroughfare plan. And as Larry said, I don't think we're 25 ever going to be able to get a crossing there. So I don't was discussed for the previous applicant. And l'm ttying to understand thc essence of the dialogue. I don't think the minutes were in our meeting. What was the main point of tile d~scussion at the previous Co~mnission meeting? MR. RE[CBHART: If I recall at the last meting, or one of the last requests was also regarding a tire, around being a dead-end street. The Code would have required the applicant ~o construct half of thc cul-de-sac Page 12 I in there and they've worked out an arrangement to be able 2 to turn around on their property to appease the fire 3 depa~nent to provide an adequate turnaround, so that 4 issue has gone away. There was a lot of discussion aboul, 5 quite honestly, the City's lack to -- at the time for 6 turnaround anyways, why -- the City cDsed it off. The 7 City should have provided the turnaround dion. 8 So I bcllevc that% why the turnaround, you 9 know, we made the dead-end street. We should have Cl,Cated 10 the ~xtrnaround at that time. And dial's whal I rmdly 11 recall the focus of the discussion was more on the 12 turnaround than the parameter paving. 13 COMMISSIONER ROY: SO if we deny this 14 variance and require thmn to build half the road along 15 their property -- 16 Mil. RE[CDHART: Y~S. 17 COMMISSIONER ROY: "does the City have 18 any reasonable plan to build tile other half of thc road? 19 Mil. REICHHART: NO, I don't believe wc do. 20 I don't believe it's on the civ. 21 MS. CARPENTER: It's not. 22 MR. REICHHART: NO. 23 COM~ISSIONERRO¥: okay. Thank you. Oh, 24 excuse me. One other question if I may. The applicant 25 made a statement that specific actiou was taken for thc PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 9 - Page 12 CondensoltTM 1 2 3 4 5 6 9 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 propcrVy across thc street to grant a variance such as this for parameter paving and sidewalk exclusion. Can you Cmlfinn that? MR. REICIIHART: I cannot confirm nor deny. · I believe he's correct though. COMMISSIONER ROY: Thank you. COMMISSIONER HOLT: Any other questions? MR. BALDWIN: Tbank you. COMMiSSiONER HOLT: 1'[1 entertain a motion on A, 4A. Ma. r~EICIIH~qT: I think just to recap, 4A is the sidewalk variance, physical hardship variance. It stops here at Council -- or at P & Z. I'm sorry. And B is for the parameter paving. Ifs an exaction variance so we're making a rccon~unenda!:iou to City Council. That variance will go on to City Council. COMMISSIONER HOLT: Mr, Walk/ns. COMMISSlONERWATKINS: Thank you. I would make a lnotion to deny V-05-0004, the sidewalk variance. COMMISSIONER HOLT: Mr. Roy. COMMISSIONER ROY: I'll defer for a second here. COMMISSIONER HOLT: We need a secofld before we have discussion. COMMISSIONER THIBODEAUX: secoud. Page 15 1 construction of a sidewalk because of the, you know, 2 potential inactivity for pedestrian traffic, it's really 3 -- I hawn't really come to grips with why we would 4 require to have a paved street, at least, at this time. 5 I'm sorry. Fm kind of -- I doWt really kind of see the 6 logic in requiring one and not requiring the other. My 7 feelings if we're not going to require a sidewalk, you 8 know, why would we require the paved street, at least, al 9 fl~is time? I mean, certainly -- 10 COMMISSIONER ROY: Madam Chair. 11 COMMISSIONER HeLl: Mr. ~.Oy. 12 COMMISSIONER ROY: If I may, I think we're 13 going to dlscuss the requirement for the paved street as 14 tbe next issue. So this motion that Cotmnlssiouer Watkills 15 has proposed is simply for the sidewalk, as I understand 16 it, and we wilt discuss whether or not a paved street is 17 required in a second motion, a separate motion. That's 18 the way I undersland the motion. 19 COMMISSIONER HOLT: ~ we ready for the 20 vote? Okay. This is a reminder that tho motion is to 21 deny. 22 COMMISSIONER WATKINS: Yes. 23 COMMISSIONER HOLT: okay. Ready to vote. 24 Tbere are three in favor and two opposed. 25 (COMMISSIONERS NOBLE AND ROy VOTED IN Page 14 I COMMISSIONER HOLT: Second, Dr. Thibodeaux. 2 Is them a discussion? 3 COMMISSIONER ROY: Yes. AS I understand 4 the motion is to require the sidewalk to be built. Is 5 that the indication? 6 COMMISSIONER WATKINS: Yes. Yes. At the 7 staff's recotmnendation was the reason I made the motion. 8 COMMISSIONER ROY: well, I have -- as I 9 said before, I've been at that site several times because 10 of the various activities and I am very pro-sidewalk, but 11 I mn influenced by the fact that the property across the 12 street was apparently given a variance not to build a 13 sidewalk and I'm also influenced by the fact that the -- 14 there's really not much out there and the chances of any 15 pedestrian traffic along the road, to me, scems quite slim 16 in this area. So I was about to make a motion just the 17 opposite of that, so I just don't feel like we should 18 require them to build that sidewalk, so I cannot support 19 the ]notion, and I'll be voting against it. Thank you. 20 COMMISSIONER HOLT: Okay. We're ready for 21 a vote. Oh, I'm sorry. Dr. Noble, I'm sorry. Excuse me. 22 COMMISSIONER NOBLE: I'm struggling with 23 this a little bit. I kind of agree with Co~unissioner Roy. 24 But I'm going to take this a little bit further. If we're 25 -- my feeling is if we're not going to require a 10 11 12 ~3 14 15 16 17 18 19 '20 21 22 23 24 25 Page 16 OPPOSITION,) COMMISSIONER HOLT: Itelll 4B. Mr, Roy. COMMISSIONER ROY: I'm going to jump iB h~ze first on this one. My logic is the same. I doo't see the necessity of requiring the business to pave half of the road when we have no plan to pave the other half of the road, thc City does not. And the fact that the business across thc street was not required to pave fl~cir half of the road, so I'm going to make a motion that we approve reeenm~ending to the City Council to approve the exaction variance on Item 4B. COMMISSIONER HOLT: IS tl]ere a second? Mr. Watkins. COMMISSIONER WATKINS: If Imyone WalltS to second -- motion. COMMISSIONER NOBLE: ['11 Second the COMMISSIONER HOLT; Discussion? COMMISSIONER WATKINS: I have a -- lily problem, I guess, we keep going back to tbe business across the street and I don't doubt that Larry is absolutely correct, but that business has been built over 20 years. And wc~vc moved a liltlc forward in tim past 20 years. ! don't think that considering 84 Lumber in thc sam~ category with the business that's been there 20 years PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 13 - Page 16 CondenseltTM 8 9 11 12 13 14 15 16 17 18 19 20 2i 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 17 -- as a matter of fact~ it's been more than one business for 20 years. I don't see us holding those two in the same category. Once again, I don't doubt Larry's thought that il: was granted a, you know, variance from it. But by the same token, that could be carried right on out Jim Clmystal Road to the airport, anything that's built out there will be all right because we've already done ir one time. I think it's -- well, I started to say I thougjat it was a bad thing. I just can't vote for it simply because we've got to start somewhere. And this is as good a place as any. And the applicant, ho had me real close, and there's no personality clash at all in it, but I just can't support the motion. I'm sorry. COMMISSIONER HOLT: okay. Any other discussion? We're ready for a vote. COMMISSIONER ROY: could you l~estate the -- COMMISSIONER HOLT: oh, file vo;e is to approve the exaction variance. Three in favor and two opposed. (COMMISSIONERS WATSON AND THIDODEAUX VOTING IN OPPOSITION.) Page 18 1 2 4 5 6 7 8 9 i0 11 12 13 14 15 16 17 18 19 20 2I 22 23 24 25 1 2 3 4 5 6 7 8 9 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 19 Page 20 PLANNING AND ZONING MINUTES FEBRUARY 23, 2005 Page 17 - Page 20 HANDOUTTO COUNCi'L ~'1~..'~'10~ 2005 Fry St. Fair- City of Denton Council Members Briefing Introduction The Fry St. Fair (FSF) was held in Denton for 23 years, up until 2003. While the 2003 and 2004 Fairs were held in Dallas' Deep Elhim area, the time has come to return the FSF to its home on Fry St., as it was proven that a fair in Dallas.does not cater to the needs of our target audience, that being college-aged Denton residents. The 2005 FSF Plan We have submitted plans to the Denton Planning Department, as well as the Denton Fire and Police Departments for this years FSF. These plans call for a return to the roots of earlier years on Fry St. to better serve the Denton public. The plans call for a small FSF with a max capacity of 4,500 in attendance at one time. We hope to get 4,000 to 6,000 attendees from Noon until 8 PM. We intend to limit the size of the FSF in the following ways. No national or regional acts are being invited to play, only Denton area bands will play. There will be no advertising in Dallas or Fort Worth. There will be no billboards on the highway. There will only be word-of-mouth and fliers handed out, along with ads in the student papers at UNT and TWU. We have worked with the Denton Fire and Police departments and the UNT police department in order to provide parking, security and emergency services throughout the FSF and have addressed the concerns that they voiced regarding past FSFs. There will be a sizable force of the UNT Police Dept and the City of Denton Police Dept. and Fire Dept. officers on hand to assist with our safety and security for the 2005 FSF. The plan is to close offFry St. at both ends and have one stage on the street and one stage in our backyard at 1305 W. Oak. Retail and Food Vendors will be located in our parking lot and the sidewalk next to our parking lot. Live music will be played from Noon until 8 PM. The FSF will be closed at 8 PM and the streets ready to be opened by 9 PM. A clean-up by members of the Delta Lodge will occur from 8 PM until 11 PM that night and will be followed by one the next morning from 10 AM until Noon. We will clean the general area of Fry St, including the parking lots and surrounding streets. · · . . . Public Concerns' Them has been a small minority who are very vocal in the opposition to the FSF on the grounds that it had grown too large and disruptive for the Fry St. area. We have taken steps to ensure that this FSF will be smaller and more contained than the last FSFs held on the street. Without advertising in Dallas and without having big-name bands, we will have a smaller and more manageable FSF. We contacted the 61 owners and tenants of the businesses and residences immediately affected by our plans in order to get the Street Closure from filled. We had 55 in favor, 1 opposed and 6 who refused to sign in favor or against. That is a Very significant majorit½ anyway you want to look at it! Charitable Donations The Delta Lodge is a fraternal, non-profit organization. As such, we have consistently donated approximately 10% to 20% of our net proceeds from FSF to charitable organizations in the Denton area every year (except 2004). Following is a list of our charitable donations from 1996 through 2003. 2003 Denton County MHMR $500 Denton Christian Pre-School $500 Friends of the Family $1,500 Denton Firefighters Assoc $500 Total $3,000 2OO2 Denton County MItMR $500 Denton Christian Pre-School $500 Friends of the Family $1,500 Denton Firefighters Assoc $500 Total $2,500 2001 Denton County MHMR $1,000 Denton Christian Pre-School $1,000 US Junior Chamber Mission $1,000 Denton Fkefighters Assoc $1,000 American Cancer Society $1,000 Community Food Center $1,250 Denton Red Cross $1,000 Ruth Jackson Scholarship $3,250 Total $10,500 2000 Denton Christian Pre-School $1,000 Children's Cancer Fund $1,000 Community Food Center $1,250 Denton Humane Society $1,250 Ruth Jackson Scholarship $3,250 Total $7,750 1999 Denton Christian Pre-School $2,250 Denton Red Cross $1,250 Community Food Center $2,281 Denton Firefighters Assoc · $1,000 Denton Humane Society $2,290 Fry St. Development Corp $1,500 Ruth Jackson Scholarship $6,000 Grace Temple Baptist $500 Total $17,071 1998 Denton Christian Pre-School $1,000 Denton Red Cross $1,500 Community Food Center $1,000 Denton Firefighters Assoc $1,000 Children's Cancer Fund $1,000 Ruth Jackson Scholarship $3,000 Denton County MHMR $500 Tot~ $9~00 Grand Total $49,821 As you can see, we donated almost $50,000 to Denton area charities over those 6 years of FSF. If you go back another 6 years, you will find about the same. All of these figures are verifiable and have been certified by our CPA! Summary The FSF is an integral part of the character and history of Denton. While past events unfortunately took the FSF to Dallas, we are ready to bring it back to the Fry St. area - where it belongs! We have adequately addressed the concerns for safety and are working closely with the UNT Police department, the City of Denton Fire and Police departments and City Services to ensure a small, well-contained and smoothly operated FSF. While we wilt not be able to ensure that 100% of the community will be 100% satisfied, we are confident that the 2005 FSF will show the City of Denton that the FSF can be executed with minimal disturbance to the surrounding community. It should be clear that the population that we are serving - the college students of Denton - are very excited about bringing the FSF back to Denton. The vast majority of businesses in the area are very excited about the potential profits that a successful fair will bring their businesses. Last, but in no way least, Denton charities should be very excited about the prospect of renewed donations from the FSF proceeds.