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HomeMy WebLinkAboutMay 3, 2005 Agenda AGENDA CITY OF DENTON CITY COUNCIL May 3, 2005 After determining that a quorum is presem, the City Council of the City of DeNon, Texas will convene in a Work Session on Tuesday, May 3, 2005 at 6:00 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: Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of May 3, 2005. NOTE: The City Council reserves the right to adjourn imo a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, including without limitation, Sections 551.071-551.086 of the Texas Open Meetings Act. Regular Meeting of the City of Demon City Council on Tuesday, May 3, 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 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 - M). This listing is provided on the Consem Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consem Agenda. If no items are pulled, Consent Agenda Items A - M below will be approved with one motion. If items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. mo Consider approval of a resolution allowing Mi Casita Restaurant to be the sole participant allowed to sell alcoholic beverages at the Cinco de Mayo Celebration on May 7, 2005, upon certain conditions; authorizing the City Manager or his designee to execute an agreemem in conformity with this resolution; and providing for an effective date. Parks, Recreation and Beautification Board recommends approval (6-0). City of DeNon City Council Agenda May 3, 2005 Page 2 Bo Consider approval of a resolution appoiming Timothy S. Fisher as the City's represemative to serve as a member of the Board of Directors of the Upper Trinity Regional Water District; and providing an effective date. The Public Utilities Board recommends approval (4-0). Co Consider adoption of an ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of DeNon; and providing an effective date (File 3334 - Electrical Energy Transmission Fees $1,124,301). The Public Utilities Board recommends approval (6-0). Do Consider adoption of an ordinance approving an assignmem of leasehold imerest in an airport lease from JVC Real Estate, LLC to January Aviation, LLC for property located at 4705 Spartan Drive at the Denton Municipal Airport; and providing an effective date. The Airport Advisory Board recommends approval (4-0). mo Consider adoption of an ordinance authorizing Amendment No. 1 to an agreement dated February 3, 2004 relating to a grant for the purchase and installation of radio equipment between the City of Denton and the State of Texas acting through the Texas Department of Transportation; authorizing the City Manager to expend funds provided for in the amendmem; and declaring an effective date (TxDOT Project No.: AP DENTON 6 and TxDOT CSJ No.: 0418 DENTN). The Airport Advisory Board recommends approval (5-0). Fo Consider adoption of an ordinance clarifying, amending and ratifying the Oil, Gas and Mineral Lease at the City of Denton Airport dated, January 17, 2002; and providing an effective date. The Airport Advisory Board recommends approval (5-0). Go Consider adoption of an ordinance approving a Statement of Agreement between the City of DeNon, and the American Red Cross - Dallas Area Chapter for mutual assistance of catastrophic events, emergencies or disasters; and providing for an effective date. Ho Consider adoption of an ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreement with R. J. Covington Consulting, LLC for consulting services relating to Task Order No. 05-C; providing for services related to Determination of Denton Municipal Electric's Future Requirements for Wholesale Electric Supply and Related Services; to Solicit and Consider Alternatives to Replace the Existing Transition Power Agreement; and to Issue a Request for Proposals for Purchased Power by Denton Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (6-0). City of Denton City Council Agenda May 3, 2005 Page 3 Consider approval of a resolution re-appointing a Member to the Board of Directors of the Texas Municipal Power Agency, representing the City of Denton, Texas; and declaring an effective date. Consider approval of tax refunds for the following property taxes: Tax Name Reason Amount Year i ~nt ~lv~ Dupli~at~ P 2. Countrywide/Fortunees, Tracy Duplicate Payment 2004 $604.35 3 ~ ~aJ~ar ar~ ~ at~ nt 200~ $~ 4. LandAmerica/Button, Robe~ & Duplicate Payment 2004 $1,414.66 Sheila 5 a/~ra d~ gag~ ~ ~upi~a~ ea~g ~00~ Matthew 6. LandAmerica/Fulligim, Dwight & Duplicate Payment 2004 $972.95 Frances 8. LandAmerica/Russell, Colleen Duplicate Payment 2004 $743.84 a/S 10. LandAmerica/Wohlgemuth, James Duplicate Payment 2004 $1,022.65 R 11. Sierra Title of North Texas/Bell, Duplicate Payment 2004 $695.01 Philo Consider approval of the minutes of: April 4, 2005 April 5, 2005 Consider adoption of an ordinance directing the publication of Notice of Intention to issue Certificates of Obligation of the City of Denton; and providing for an effective date. Consider adoption of an ordinance of the City of Demon authorizing an agreement between the City of Denton, Texas and the Denton Festival Foundation for supplemental funding for the Arts and Jazz Committee for the 2005 Denton Arts and Jazz Festival; providing for the expenditure of funds therefore; and providing for an effective date. 4. PUBLIC HEARINGS Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas denying Atmos Energy Corporation's request for an annual Gas Reliability Infrastructure Program adjustment in this municipality; providing a City of DeNon City Council Agenda May 3, 2005 Page 4 requirement for prompt reimbursement of costs incurred by the City; finding that the meeting at which this ordinance is passed is open to the public as required by law; providing for notice of this ordinance to Atmos Energy Corporation; and providing an effective date. 5. ITEMS FOR INDIVIDUAL CONSIDERATION Consider adoption of an ordinance concerning an Alternative Developmem Plan for tree canopy coverage for a distribution warehouse on approximately 30 acres of land located in an Industrial Cemers Employmem (IC-E) zoning district. The property, commonly known as 2900 Airport Road, is generally located west of I35 West and north of Airport Road. The Planning and Zoning Commission recommends denial (5-1). SUPER MAJORITY VOTE REQUIRED FOR APPROVAL. (~4DP05-O001, ~4nderson Merchandisers) Consider adoption of an ordinance of the City of DeNon, Texas, adopting the City Manager's plan for reorganization and reduction in force for the City of DeNon; providing for severance package plan for eliminated positions, providing for transfer of employee's benefit adjustmem to employee's salary; and providing an effective date. Citizen Reports 1. Review of procedures for addressing the City Council. 2. Receive citizen reports from the following: A. Jack Daniels regarding ways to facilitate voter participation - interactive government. B. Dessie Goodson regarding responsibility. C. Jordan Hudspeth regarding concerns of Southeast Denton. D. Lanisha Hudspeth regarding concerns of Southeast Denton. E. Hagar Hudspeth regarding concerns of Southeast Denton. F. Willie Hudspeth regarding concerns of Southeast Denton. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. City of Denton City Council Agenda May 3, 2005 Page 5 CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Denton, 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: May 3, 2005 Parks and Recreation Howard Martin, Utilities 349-8232 SUBJECT Consider approval of a resolution allowing Mi Casita Restaurant to be the sole participant allowed to sell alcoholic beverages at the Cinco de Mayo Celebration on May 7, 2005, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. The Parks, Recreation and Beautification Board recommended approval with a vote of 6-0. BACKGROUND The Cinco de Mayo Committee, made up of community voluNeers and City staff voted for the eighth consecutive year to support the sale of alcohol at the event, allowing Mi Casita Restaurant to be the sole proprietor of this product. Mi Casita Restaurant will be responsible for rental of the booth space, obtaining the temporary license, and securing the temporary permit. The annual Cinco de Mayo Celebration even is a Hispanic cultural festival, co-sponsored by the City of DeNon Parks and Recreation DepartmeN. It is held in Civic CeNer Park and includes a parade, local vendors, children's activities, and eNertainmeN. The free daytime even runs from 10:00 a.m. - 6:00 p.m. and will be followed with a public dance from 8:00 p.m. - 12:00 p.m., May 7, 2005. The event continues to experience growth each year in community participation through local vendors and entertainment. Last year's event hosted around 12,000 participants with 60 vendors and two entertainment stages. This would be the eighth year that alcohol will be sold at this event. There have not been any security issues at the previous events. This year WalMart, Greater DeNon Arts Council, and Miller Beer of DeNon are the major community sponsors. RECOMMENDATION Staff recommends approval of the ordinance and agreement as submitted, which is consistent with agreements with other co-sponsored events, such as the Denton Arts & Jazz Festival. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Parks, Recreation and Beautification Board recommended approval with a vote of 6-0. FISCAL INFORMATION None. EXHIBITS 1. Proposed Resolution 2. Letter of Request from Mi Casita 3. Civic Center Agreement 4. Park, Recreation and Advisory Board Minutes of April 4, 2005 Janet Fitzgerald Director of Parks and Recreation Prepared By: Janie McLeod Community Events Coordinator ~NT BY: ~TY OF DENTON; 940 38;:t 2445; MAH-24-U5 3:U4P'~,~; I~A~:~ ~/Z ! l 0 NORTH CARROLL BLVD. DENTON, TExAs 762.01 (940) 89 ! - 193Z FAX: (940) 891 - ! 900 Marcli 22, 2005 Parks, Recreation nd Beautification Board 321 E. McI(~qney Denton, Texas 76201 MemN~,rs of the Parks, Recreation arid Beautification Board: Mi Casita Mexico t::ood Restaurant requests p~ission to scll ~er at the CLnco de Mayo Festival to be held on May 7, 2005 in the Civic Center Park. The Denton Cinco de Mayo Committee, made of conununity volunteers and City of Denton smff. contacted Mi Casita ,and mqtmsted that they be the sole proprietor of alcohol product.q lbr the 2005 event. Mi Casita Mexican Food Restaurant will be respom;ible for rental of the booth space, obtaining teml~orary licensc and securing the tcmporaJy permit. The City of Denton will provide ~iice securiD~ at the event. The Denton Cinco de Mayo Celebration is about: providing the spirit of celebration ~d l¥iendship by sharh~g and showcasing rich cuttural traditions, songs, dances, art exhibits mid [hods of the Hispanic Comunity. This Cinco de Mayo Celebration is a benefit to the Denton Commtmity be~cause it is "'I~IE" Hispanic event of thc ycar~ This celebration began as a city cvcnt pl~mmed and implemented by stall; and over the years it has evolved to include broad conu:aunity-based support. This is a one-day fi~ee event on Saturday, May 7, 2005 that runs fi:om 11:00 a.m. to 6:00 p.m. Please fhel free to call mc with ,~my questions. I can be reached on my cell phone at "Mi Ca~ila Mexican Food EXHIBIT 2 DRAFT Parks, Recreation and Beautification Board April 4, 2005 City Hall Conference Room Members present: Teresa Andress, Jo Kuhn, Geri Aschenbrenner, Patrice Lyke, Ross Richardson, and Reggie Heard. Members absent: Chuck Smith. Staff present: Janet Simpson, Emerson Vorel, Janie McLeod and John Whitmore. Chairman Teresa Andress called the meeting to order at 6:00 p.m. Approval of Minutes of March 7, 2005. The minutes were approved as distributed. ACTION ITEMS Consider a Request from Mi Casita Restaurant to sell alcohol beverages at Cinco de Mayo. Janie explained how the restaurant would provide the license for the alcohol permit and received the proceeds from the sales. Jo Kuhn made a motion to approve the request and Patrice seconded the motion. The motion was approved with a vote of 6-0. DISCUSSION ITEMS - None DIRECTOR'S REPORT Capital Improvement Program Update - Janet gave a review of the CIP spreadsheet with the dates and expenses associated with the improvements through year 2012. Eureka Playground Update - Janet said that the City had contracted with Reed Engineering Group to conduct the annual testing of the Eureka playground equipment. The engineers determined that the wipe samples were at least 30 times below the carcinogenic endpoints and at least 319 times below the non-carcinogenic endpoints as outlined by Hazardous Substance and Waste Management Research Inc. Janet added that the information is located on the City website too. Project Status Report - Janet said the Civic Center Renovations are close to being completed and should be turned over to the City next week. The building will be open during the Arts and Jazz Festival. There will be an Open House for the Civic Center on April 20 from 4:00 p.m.- 6:00 p.m. Invitations will be mailed in the near future. Geri asked if there had been many reservations for the center. Janet said that most people would prefer to see the completed building before making reservations. Keep Denton Beautiful - There were no questions. ITEMS FOR UPCOMING MEETINGS 2004 Annual Report Public Art Policy FY 2005-06 Budget Review There being no further business, the meeting was adjourned at 7:08 p.m. EXHIBIT 4 S:\OUR DOCLlMENTSXResolutions\05\Cinco De Mayo alcohol sell.doc RESOLUTION NO. A RESOLUTION ALLOWING MI CASITA MEXICAN FOOD TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE CINCO DE MAYO CELEBRATION ON MAY 7, 2005, UPON CERTAIN CONDITIONS; AUTHORIZING THE CITY MANAGER OR HiS DESIGNEE TO EXECUTE AN AGREEMENT IN CONFORMITY WITH THIS RESOLUTION; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton ("City") is the owner of the Civic Center Park and through the Park and Recreations Department co-sponsors a Cinco De Mayo Celebration at the Civic Center Park; WHEREAS, the consumption of alcoholic beverages is allowed in the Civic Center Park pursuant to City of Denton Code, §22-32 (b); WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages at the Cinco De Mayo Celebration; and WHEREAS, Matt Kohandam doing business as Mi Casita Mexican Food (called "Mi Casita") has requested that they be sole participant allowed to sell alcoholic beverages at this year's Cinco De Mayo Celebration on May 7, 2005; and WHEREAS, flxe Parks, Recreation, and Beautification Board has recommended that Mi Casita be the sole participant allowed to sell alcoholic beverages at the Cinco De Mayo Celebration; and WHEREAS, the City agrees with the recommendation of the Parks, Recreation, and Beautification Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. Mi Casita shall be the sole participant allowed to sell alcoholic beverages · at the Cinco De Mayo Celebration on May 7, 2005 at the Civic Center Park upon the following conditions: They shall be responsible for rental of any booth space necessary; They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; They shall provide the security necessary for the sale of alcoholic beverages; They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00. EXHIBIT 1 Agrees to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Cinco De Mayo Celebration. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNll:rER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY BY: S:\Our Documents\Contracts\05~Cinco De Mayo Contract.doc CIVIC CENTER AGREEMENT FOR THE CINCO DE MAYO CELEBRATION __ day of STATE OF TEXAS § COUNTY OF DENTON § This Agreement, made this ,2005, by and between the City of Denton, a municipal corporation, hereinafter referred to as the "CITY" and Matt Kohandam doing business as MI CASITA MEXICAN FOOD (called "MI CASITA"). WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to MI CASITA the' exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the Cinco De Mayo celebration on May 7, 2005 to be held at the Civic Center Park. Attached hereto and made a part hereof by is a copy of the resolution passed by the City Council of Denton, Texas authorizing this privilege. This privilege does not extend beyond the date of the Cinco De Mayo celebration set for the year 2005. ARTICLE 2 SCOPE OF SERVICES MI CASITA in order to exercise the privilege to sell alcoholic beverages must perform the following: MI CASITA shali be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the Cinco De Mayo Celebration. MI CASITA shall be solely responSible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the Cinco De Mayo Celebration. MI CASITA shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the Cinco De Mayo Celebration. MI CASITA's failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the Cinco De Mayo Celebration. EXHIBIT 3 ARTICLE 3 LOCAL RULES AND REGULATION MI CASITA agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, the Denton Civic Center Rules and Regulations, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. MI CASITA shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. MI CASITA will exercise reasonable care and due diligence in their sale of alcoholic beverages at the Cinco De Mayo Celebration. ARTICLE 4 INDEMNITY AGREEMENT MI CASITA shall indemnify and save and hold harmless the CiTY and its officers, agents, and employees from and against any and ail liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting fi.om the negligent acts or omissions of MI CASITA or it officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action,, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, MI CASITA shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carders of at least an A- or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $ i 00,000 in the aggregate. Bo MI CASITA shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance Cinco De Mayo Celebration Agreement- Page 2 shall not be canceled or modified without written notice to the CITY and MI CASITA. In such event, MI CASITA shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To MI CASITA · To CITY: MI CASITA MEXICAN FOOD Matt Kohandam 110 N. Carroll Blvd. Denton, Texas 76201 (940) 891-1932 CITY OF DENTON: City Manager 215 E. McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and one (I) exhibit, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes ail prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. Cinco De Mayo Celebration Agreement - Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, MI CASITA shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL MI CASITA represents that it has or will secure, at its own expense, ail personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY MI CASITA shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the fights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS The following exhibits are attached to and made a part of this Agreement: (list exhibits) Exhibit "A" Resolution No. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. Chaco De Mayo Celebration Agreement - Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and MI CASITA has executed this Agreement through its duly authorized undersigned officer on this the day of 2005. " CITY OF DENTON, TEXAS MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, ATTORNEY BY: MI CASITA MEXICAN FOOD BY: MATT KOHANDAM WITNESS: BY: Cinco De Mayo Celebration Agreement - Page 5 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 3, 2005 Utility Administration Howard Martin, 349-8232 SUBJECT Consider approval of a resolution appointing Timothy S. Fisher as the City's representative to serve as a member of the Board of Directors of the Upper Trinity Regional Water District; and providing an effective date. (The Public Utilities Board recommends approval by a vote of 4-0) BACKGROUND Timothy S. Fisher, Assistant Director of Water Utilities, was appointed to the Board of the Upper Trinity Regional District (UTRWD) by the Public Utilities Board on April 16, 2001 and by the City Council on May 1,2001. He was sworn into office on June 7, 2001 at the regularly scheduled UTRWD Board meeting. Mr. Fisher accepted the appointment after the resignation of Howard Martin, Assistant City Manager, Utilities. Mr. Fisher's four-year term will expire on May 31, 2005 and is eligible to be reappointed to another four-year term. Howard had recommended to the Public Utilities Board at their April 16, 2001 meeting, that Tim Fisher, Assistant Water Director, be appointed. Tim Fisher has served on the UTRWD Board as the alternate for Howard Martin and would be the best representative from the City of Denton with a complete knowledge and history of the issues presented. During the past four years, Mr. Fisher has represented the City of Denton on the UTRWD Board of Directors and has served on several committees, including the Water Search Committee, the Rates and Charges Committee, the Investor Owned Utilities Committee and the Watershed Protection Committee, where he currently serves as chairman. Howard has been pleased with Mr. Fisher's performance as Denton's representative on the UTRWD Board of Directors and recommends that he be reappointed to another four-year term. Mr. Fisher has indicated an interest and desire to continue to serve as Denton's representative on the UTRWD Board. EXHIBITS 1. Resolution 2. PUB Minutes Respectfully submitted: Howard Martin, Assistant City Manager, Utilities CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING AGENDA April 11, 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, April 11, 2005 at 9:04 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. Presem: Bill Cheek, Phil Gallivan, George Hopkins, Charldean Newell EX OFFICIO MEMBERS Howard Martin, ACM/Utilities Excused: John Baines Bob Bland Dick Smith CONSENT AGENDA: 1) Consider approval of Bid No. 3322 for 25-Yard Rear Load Refuse Truck Bodies awarded to Heil of Texas in the amoum of $97,750. 2) Consider and recommend approval of a Resolution appoiming Timothy S. Fisher as DeMon's represemative to serve as a member of the Board of Directors of the Upper Trinity Regional Water District; and providing an effective date. Board Member Phil Gallivan moved to approve Consent Agenda Items #1 and #2, with a second from Board Member George Hopkins. The motion was approved by a vote of 4-0. Page 1 of 1 EXHIBIT 2 RESOLUTION NO. A RESOLUTION RE-APPOINTING TIMOTHY S. FISHER AS THE CITY'S REPRESEN- TATIVE TO SERVE AS A MEMBER OF THE BOARD OF DIRECTORS OF THE UPPER TRINITY REGIONAL WATER DISTRICT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Timothy S. Fisher ("Fisher"), the Assistam Director of Water Utilities is presently serving as the appointed City of Denton representative to the Board of Directors of the Upper Trinity Regional Water District ("UTRWD"), is scheduled to complete his term of office, effective May 31, 2005; WHEREAS, Fisher has demonstrated a complete knowledge and history of the water is- sues brought up by the UTRWD and is likewise involved with the day-to-day activities involving the Water Utility Department of the City of Denton; he has represented the City of Denton, be- fore the UTRWD very well; and the City Council finds that Fisher has met the qualifications of eligibility for appoimmem to the UTRWD Board; and WHEREAS, after due consideration, the City Council of the City of DeNon, Texas re- appoints, as its representative to the UTRWD Board of Directors, Timothy S. Fisher, to serve as the DeNon represemative on the UTRWD Board of Directors for a term of four (4) years, effec- tive May 31, 2005; and NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1: That Timothy S. Fisher is hereby re-appoimed as the City of Demon's rep- resentative, to serve as a member of the UTRWD Board of Directors, effective May 31, 2005. SECTION 2: That the City Manager, or his designee, is hereby directed to transmit a true and correct copy of this resolution to the Assistant Secretary, UTRWD Board of Directors. SECTION 3: That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR EXHIBIT 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY By: S:\Our Documents\Resolutions\05\UTRWD Board Re-Aptmt 2005-Tim Fisher Resolution.doc AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 3, 2005 Materials Management Kathy DuBose ~ Questions concerning this acquisition may be directed to Sharon Mays 349-8487 SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3334-Electrical Energy Transmission Fees in the total amoum of $1,124,301). (The Public Utility Board approved this item by a vote of 6-0). BID INFORMATION There are ten purchase orders that reflect the estimated cost of transmission of electrical energy from the generation source to the Denton Municipal Electric Distribution System for January 2005 through June 2005. The purchase orders are for paymem of a fee imposed by the Public Utility Commission of Texas (PUCT) for planned transmission services of energy delivered to the City of DeNon. The Public Utility Regulatory Act of 1995 (PURA 95) required the development of a new, statewide mechanism for electric transmission service in Texas. PURA 95 also placed municipal utilities under the jurisdiction of PUCT for matters related to transmission. As a result, the Denton Municipal Electric Utility has been ordered by the PUCT to pay various other electric utilities in the State specific amounts. The subject purchase orders provide the City of DeNon the authority required by the City Charter to make those payments. These purchase orders will encumber funds estimated as costs for services through June 30, 2005. No funds will actually be spem umil invoices are received, reviewed, and approved. RECOMMENDATION We recommend approval as follows: American Electric Power American Electric Power West Texas Utilities City of Austin Electric Utility Brazos Electric Power Coop, Inc. Sa n Amonio City Public Service CNP Energy TXU Lower Colorado River Authority South Texas & Medina Electric Coops Texas Municipal Power Agency $112,738 $40,385 $43,809 $53,290 $57,540 $189,475 $289,788 $268,838 $25,117 $43,321 $1,124,301 Agenda Information Sheet May 3, 2005 Page 2 PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will consider this item at its April 25 meeting. PRINCIPAL PLACE OF BUSINESS City of Austin Electric Util. Brazos Electric Power Coop. Austin, TX Waco, TX S.A. City Public Service San Antonio, TX CNP Energy Houston, TX Texas Municipal Power Agency Bryan, TX TXU Dallas, TX South TX & Medina Electric Coops Nursery, TX American Electric Power Columbus, OH TX Municipal Power Agency Bryan, TX Lower Colorado River Authority Austin, TX FISCAL INFORMATION Funds to meet these regulatory fee obligations were budgeted in 2004-2005 budget account 600400.6072. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-File 3334 CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING MINUTES APRIL 25, 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, April 25, 2005 at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. Present: John Baines, Bob Bland, Bill Cheek, George Hopkins, Charldean Newell Dick Smith EX OFFICIO MEMBERS Mike Conduff, City Manager Howard Martin, ACM/Utilities Excused: Phil Gallivan CONSENT AGENDA: 1) Consider and recommend approval of an Ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3334-Electrical Energy Transmission Fees in the total amoum of $1,124,301). Board Member Bill Cheek asked that Consent Agenda Item #1 be pulled. ITEMS FOR INDIVIDUAL CONSIDERATION: 1) Consider and recommend approval of an Ordinance of the City of DeNon, Texas authorizing the expenditure of funds for paymems by the City of DeNon for electrical energy transmission fees to those cities and utilities providing energy transmission services to the City of Denton; and providing an effective date (File 3334-Electrical Energy Transmission Fees in the total amoum of $1,124,301). Cheek moved to recommend approval of an Ordinance authorizing funds for electrical energy transmission fees, with a second from Board Member George Hopkins. The motion was approved by a vote of 6-0. Page 1 of 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE EXPENDITURE OF FUNDS FOR PAYMENTS BY THE CITY OF DENTON FOR ELECTRICAL ENERGY TRANSMISSION FEES TO THOSE CITIES AND UTILITIES PROVIDING ENERGY TRANSMISSION SERVICES TO THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (FILE 3334-ELECTRICAL ENERGY TRANSMISSION FEES IN THE TOTAL AMOUNT OF $1,124,301). WHEREAS, in order to comply with the legislative requirements contained in the Utility Regulatory Act of 1995, for the payment for energy transmission services fees, the City of Denton is required to pay such fees imposed by the Public Utilities Commission of Texas to ten listed utilities set forth in Exhibit "A": and WHEREAS, the City Manager has reviewed and recommended that the City Council approve and authorize the payment of such; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the expenditure of funds in the amount of $1,124,301 to be paid to the Listed Utilities in the specified amount shown on Exhibit "A", which is attached to and made a part of this ordinance for all purposes is hereby authorized. SECTION 2. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY BY: 3-ORD-FILE 3334 EXHIBIT "A" American Electric Power American Electric Power West Texas Utilities City of Austin Electric Utility Brazos Electric Power Coop, Inc. San Antonio City Public Service CNP Energy TXU Lower Colorado River Authority South Texas & Medina Electric Coops Texas Municipal Power Agency Total $112,738 $40,385 $43,809 $53,290 $57,540 $189,475 $289,788 $268,838 $25,117 $43,321 $1,124,301 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 3, 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 January Aviation, LLC for property located at 4705 Spartan Drive at the Denton Municipal Airport; and providing an effective date. Airport Advisory Board unanimously recommends approval 4-0. 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 January Aviation, LLC. January Aviation, LLC have agreed to assume the obligations of the existing lease agreement. ESTIMATED SCHEDULE OF PROJECT The lease assignment would become effective May 3, 2005 and continue through the last day of April 2034 (end of current lease). PRIOR ACTION/REVIEW The City Attorney has reviewed the lease assignment and the Airport Advisory Board unanimously 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 agreement. current version of the lease EXHIBITS Ordinance Assignment Respectfully submitted: Mark Nelson, Director Airport and Transit Operations S:\OUR DOCUMENTS\Ordinances\05~WC Airport Lease Assignment. doc ORDINANCE NO. AN ORDINANCE APPROVING AN ASSIGNMENT OF LEASEHOLD INTEREST IN AN AIRPORT LEASE FROM JVC REAL ESTATE, LLC TO JANUARY AVIATION, LLC FOR PROPERTY' LOCATED AT 4705 SPARTAN DRIVE AT THE DENTON MUNICIPAL AIRPORT; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute an Assi~tmment of Leasehold Interest in Airport Lease from JVC Real Estate, LLC to January Aviation, LLC, 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. EULINEBROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY BY: LEASE ASSIGNMENT OF PAD SITE AT DENTON MUNICIPAL AIRPORT DATE: May 3, 2005 ASSIGNOR: JVC Real Estate LLC ASSIGNEE: January Aviation, LLC LEASE: Date: Landlord: Tenant: Premises: April 20, 2004 City of Denton, Texas JVC Real Esme LLC Tho property located at 4705 Spartan Drive, Denton, Texas 76207 and more fully described in the attached Exhibit A which is made a part of this Assi~mnnent for all purposes. Assignor assigns to Assignee Tenant's interest in the lease. A. 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 Assi~ment becoming effective. Landlord consents to this assi~ment, 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. PREVIOUS ASSIGNMENTS: None .l F~r~W~t~eal ~state LLC, $ohn A. Vann, Manager, Assignor / Per Ja tuary Illlllllllll I IIIIIIIII II IIII I ,, Attest: Jennifer Walters, City Secretary Michael A. Conduff, City Manager By: Approved as to Legal Form: Edwin M. Snyder, Interim City Attorney STATE OF TI~XAS COUNTY OF DENTON This instrument was acknowledged before me on thc I ~... day of ~fp'rJ$ , 2005, by Iohn a. Vann, President of JVC Real Estate, LLC, a Texas,~dt~ Liability Company, on behalf of ~d,Comp~y. ~~/~. dom gE. ,I! /,/tqota~,Public, S~at~ofTex~3T~,-- / ,, '"' *o,,','o°' J! My Commission Expires ~ff ~ -' ~' ~' ~::: :: ..... ~ .... (or Notary Stamp) t ' STAT~ OF TEXAS COUNTY OF DENTON ,~ /} This imtmment was acknowledged before me on thc~ day of , 2005, by Jim lancaster, President of January Aviation, LLC, a'"'~exas Limited L~6ility Company, on behalf of said Company. [SE~l /~~ Notary Public , [*~'~)_*} STATE OF TEXAS · ~..~Y I~/Comm. Exp. 11/12/200~.: Page 2 of 3 i STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before mo on the ~ day of . , 2005, by Michael A. CondtffL City Manager .on behalf the City of Denton, Texas, a municipal corporation. [SEAL] Notary Public, State of Texas My Commission Expires (or Nom'y Stamp) Page 3 of 3 AGENDA INFORMATION SHEET AGENDA DATE: May 3, 2005 DEPARTMENT: Airport and Transit Operations ACM: Jon Fortune, Assistant City Manager SUBJECT Consider the adoption of an ordinance authorizing Amendmem No. 1 to an agreemem dated February 3, 2004 relating to a grant for the purchase and installation of radio equipment between the City of Denton and the State of Texas acting through the Texas Department of Transportation; authorizing the City Manager to expend funds provided for in the amendment; and declaring an effective date (TxDOT Project No.: AP DENTON 6 and TxDOT CSJ No.: 0418 DENTN). The Airport Advisory Board unanimously recommends approval of this amendmem, 5-0. BACKGROUND As part of cominued airport developmem and following recommendations outlined in the 2003 Airport Master Plan, the Texas Department of Transportation, Aviation Division (TxDOT) is offering an opportunity to amend the currem Tower-Terminal Gram in order to provide $150,000 dollars in federal funding for the design and construction of the proposed Airport Terminal building. The current terminal grant is a 50:50 match agreement with TxDOT participation of $400,000 for the terminal and parking lot. The proposed amendmem will designate TxDOT to serve as the City's agent in the administration of grant funds to ensure federal and state grant compliances are met pursuant to construction services. Facilities Management will continue to serve as the Airport's represemative to ensure the new facility meets local building standards and program needs. TxDOT officials have requested the City of Denton to provide documentation of support and acceptance of the offer through the attached proposed ordinance and amendment. PRIOR ACTION/REVIEW The Airport Advisory Board has been briefed and unanimously recommends approval of the proposed amendment. Staff recommends approval of the proposed grant amendment. ESTIMATED SCHEDULE OF PROJECT Upon receipt of the executed amendment, the Director of TxDOT will sign the document and approve the increase in grant assistance. The project is currently in the design phase. Completion and occupation of the new facility is scheduled for spring 2006. FISCAL INFORMATION This component of the grant assistance is a 90:10 match grant for design and construction services related to the proposed airport terminal building. Total terminal project participation by the FAA is $150,000. This will require the City to contribute $16,667 in sponsor funds for a total project match of $166,667. TxDOT has already committed to $400,000 in 50:50 State match funding for this project. EXHIBITS Ordinance Amendment Original Gram Respectfully submitted: Mark Nelson, Director Airport and Transit Operations S:\OUK DOCUMENTSLtdRPORTXOrdinances-Resolutions\TxDOT Gram-Radio Equipment.doc ORDINANCE NO. AN ORDINANCE OF TIlE CITY OF DENTON AUTHORIZING AMENDMENT NO. 1 TO AN AGREEMENT DATED FEBRUARY 3, 2004 RELATING TO A GRANT FOR THE PURCHASE AND INSTALLATION OF RADIO EQUIPMENT BETWEEN THE C1TY OF DENTON AND THE STATE OF TEXAS ACTING THROUGH THE TEXAS DEPARTMENT OF TRANSPORTATION; AUTHORIZING THE CITY MANAGER 'TO EXPEND FUNDS PROVIDED FOR IN THE AMENDMENT; AND DECLARING AN EFFECTIVE DATE (TxDOT Project No.: AP DENTON 6 AND TxDOT CSJ No.: 0418DENTb0. WHEREAS, Pursuant to Ordinance No. 2004-025, the City of Denton and the State of Texas acting through the Texas Department of Transportation, Aviation Division ("TxDOT") entered into an agreement dated February 3, 2004 (Contract #4XXAV070) relating to a grant for the purchase and installation of airport radio equipment at the Denton Municipal Airport (the "Agreement"); and WHEREAS, TxDOT has presented to the City an Amendment No. 1 to the Agreement, a copy of which is attached hereto and made a part hereof by reference ("Amendment'); and WHEREAS, the City Council finds that the Amendment is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: S~2C2ID. h!.~ The City Manager of the City of Denton, or his designee, is hereby authorized to execute the Amendment to the Agreement on behalf of the City of Denton. ~. The City Manager is hereby authorized to expend such funds as are provided for in the Agreement as amended. SECTION 3_ This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR Page 1 S:\OUR DOCUMENTSL~LRPORT~Ordinances-Resolufions\TxDOT Grant-Radio Equipment.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY Page 2 TO: FROM: TEXAS DEPARTMENT OF TRANSPORTATION AIRPORT PROJECT PARTICIPATION AGREEMENT (Federally Assisted Airport Development) TxDOT 'Project No.:AP DENTON 6 TxDOT CSJ No.: 0418DENTN TxDOT Contract No.: 4XXAV070 Amendment No. 01 to the Agreement Part I - Identification of the Project The City of Denton, Texas The State of Texas, acting through the Texas Department of Transportation The City of Demon, Texas, hereinafter referred to as the "Sponsor," and the Texas Department of Transportation, hereinafter referred to as the "State," have entered into an Airport Project Participation Agreement TxDOT CSJ Number 0418DENTN, executed by the Sponsor on February 4, 2004, and by the State on March 15, 2005, for the development of the Denton Municipal Airport, hereinafter referred to as the "Airport". The project is described as follows: purchase and install airport radio equipment at the Denton Municipal Airport as approved by the Texas Transportation Commission on December 18, 2003. It is in the mutual interest of the Sponsor and the State to include FY 2003 non primary entitlement funds in additional to those funds granted for the terminal building in grant CSJ 0218DENTN executed in January 22, 2002; and to have the state act as agent for the construction services of this grant. Part II - Offer of Financial Assistance, estimates total project costs to be $166,667; and financial assistance is currently limited to $150,000 in federal funds and $16,667 in local sponsor funds. The following amendment to the Airport Project Participation Agreement shall become effective upon execution of this Amendment by the Sponsor and the State. The Airport Project Participation Agreement is amended as follows: 1. Part I, Item 3, the project description will read as follows: construction services associated with the terminal building at the Denton Municipal Airport as approved by the Texas Page 1 of 5 Transportation Commission on December 18, 2003. 2. Part II, delete item 6. Replace with 6. Sponsor's share of project costs (Amount D) shall be paid initially in cash when requested by the State. At project closeout, Sponsor will be reimbursed for any credited amounts that exceed Sponsor's share. 3. Add item 7. 7. Sponsor, by executing this Agreement certifies, and upon request, shall furnish proof to the State that it has sufficient funds to meet its share of the costs. The Sponsor grants to the State and federal government the right, upon advance written request during reasonable and regular business hours, to audit any books and records of the Sponsor to verify said funds. In addition, the Sponsor shall disclose the source of all funds for the project and its abihty to finance and operate the project. Following the execution of this Agreement and upon written demand by the State, the Sponsor's financial obligation (Amount D) shall be due and payable to the State. State may request the Sponsor's financial obligation in partial payments. Should the Sponsor fail to pay the obligation, either in whole or in part, within 30 days of written demand, the State may exercise its rights under Part V-7. Likewise, should the State be unwilling or unable to pay its obligation in a timely manner, the failure to pay shall be considered a breach and the Sponsor may exercise any rights and remedies it has at law or equity. Expenditures for eligible project costs for the above project made by the State or the Sponsor prior to the award of a federal grant for the project, and prior to actual receipt of the authority to expend federal grant funds, shall be made from Sponsor funds. On page 7 and 8, delete items 11, 12 and 13. On page 8 replace Part IV - Responsibilities of the State with: Part IV- Nomination of the Agent The Sponsor designates the State as the party to apply for, receive and disburse all funds used, or to be used, in payment of the costs of the project, or in reimbursement to either of the parties for costs incurred. The State agrees to assume the responsibility to assure that all aspects of the grant and project are done in compliance with all applicable state and federal requirements including any statutes, rules, regulations, assurances, procedures or any other directives, Page 2 of 5 except as otherwise specifically provided. The State shall, for all purposes in connection with the project identified above, be the Agent of the Sponsor. The Sponsor grants the State a power of attorney to act as its agent to perform the following services: Receiving Disbursing Agent: a. apply for, accept, receive, and deposit with the State Treasury any and all project funds granted, allowed, and paid or made available by the State and/or the United States under Title 49 U.S.C. and congressional appropriation; receive, review, approve and process Sponsor's reimbursement requests for approved project costs; and pay to the Sponsor, from granted funds, the portion of any approved reasonable and eligible project costs incurred by the Sponsor that are in excess of the Sponsor's share. Paying Agent: d. receive, review, approve and pay invoices and payment requests for services and materials supplied in accordance with State executed contracts; when applicable; receive, review and approve reimbursement requests for reasonable and eligible property acquisition costs incurred by the Sponsor, provided the required documentation is supplied. Contracting Agent: f. advertise for professional engineering and/or planning services for, but not limited to, the preparation of planning studies, plans and specifications for the above project and for the management of the construction of the above project; certify consultant selection procedures; provide notification of contract award for professional services; and negotiate professional services fees; and execute, on behalf of the Sponsor, a professional services agreement as related to this project; administer Disadvantage Business Enterprises (DBE) and/or Historically Underutilized Business (HUB) Programs in accordance with federal and state regulations. Contract Management Agent: h. exercise such supervision and direction of the project work as the State reasonably finds appropriate. Where there is an irreconcilable conflict or difference of opinion, judgment, order or direction between the State and the Sponsor, any engineer, contractor, or materialman, the State shall issue a written order, which shall prevail and be controlling; Page 3 of 5 coordinate and review project plans, specifications and construction; coordinate and conduct progress and final inspections. Construction Phase: j. authorize the advertisement, receipt and opening of bids for construction of the above project; and award contracts for construction of the above project and acquisition of materials related to it; and execute, on behalf of the Sponsor, construction contracts as related to this project; participate in pre-bid and pre-construction conferences; and issue orders as it deems appropriate regarding c0nstmcfion progress, including but not limited to Notices to Proceed, Stop Work 'Orders, and Change Orders; 1. review, approve and maintain record drawings. All other terms and conditions of the agreemem are unchanged and remain in full force and effect. This Amendment to the Airport Project Participation Agreement between the City of Denton, Texas, and the Texas Department of Transportation is mutually agreed to and accepted. Executed this day of ,20 The City of Denton, Texas Sponsor Wimess Signature Sponsor Signature Witness Title APPROyED AS TO LEGAL FORM: EDWINIM. SNYDER, INTERIM CITY ATTORNEY Sponsor Title Page 4 of 5 Execution by the State Executed by and approved for the Texas Transportation Commission for the purpose and effect of activating and/or carrying out the orders, established policies or work programs and grants heretofore approved and authorized by the Texas Transportation Commission. STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION By: Date: Page 5 of 5 TEXAS DEPARTMENT OF TRANSPORTATION AIRPORT PROJECT PARTICIPATION AGREEMENT (Federally Assisted Airport Development Grant) TxDOT CSJ No..~418DENTN TxDOT Project No.: AP DENTON 6 Tx_DOT Contract No.: 4XXAV070 Part I - Identification of the Project TO: The City of Denton, Texas FROM: The State of Texas, acting through the Tex~ Department of Transportation This Agreement is made and entered into by and between the Texas Department of Transl~mfion, (hereinafter referred to as the "State"), for ard on behalf of the State of Texas, and the City of Denton, Texas, (hereinafter refemxl to as the "Sponsor"). The Sponsor desires to sponsor a project for the development of a public aviation facility, known or to be designated as the Airport under the Airport and Airway Improvement Act of 1982, as repealed and recodified in Title 49 United States Code, Section 47101 et seq., (herein,aRe, referred to as "Title 49 US.C?'), and Rules, Regulations and Procedures promulgated pursuant; and trader V.T.C.A. Transportation Code, Title 3, Chapters 21-22, et seq. (Vemon and Vernon Supp). The project is described as ibllows: purchase and install aiport radio equipment at the Denton Municipal Airport. The Sponsor applies for federal non-primary entitlement financial assistance and desires the State to act as the Sponsor's agent in matters connected with the project described above. The parties, by this Agreement, do fix their respective responsibilities, with reference to each other, with reference to the accomplishment of the project and with reference to the United States. Purmamt to and tbr the purlx~se o1' canying out the provisions of Title 49 U.S.C., and m consideration of (a) thc Sponsor's adoption and ratification of the representations and assurances eontahaed in lhe Airport Project Participation Agreement and its acceptance of this Offer as provided, and (b) the benefits to accrue to the United States and the public ttom the accomplishment of the project and compliance with the assurances and conditions as herein provided, THE TEXAS DEPARTMENT OF TRANSPORTATION, FOR AND ON BEHALF OF THE UNITED STATES, FEDERAL AVIATION ADMINISTRAIION (ItEREINAFTER REFERRED TO AS THE "FAA"), HEREBY OFFERS AND AGREES to pay, as the United States share of the allowable costs incuncd in accomplishing the project, ninety percentum of all allowable project costs. Page 1 of 27 This grant is made on and subject to tl~ following terms and condiffons: Part il - Offer of Financial Assistance The allowable costs of the project shall not include any costs determined by thc State to be ineligible for consideration as to allowability under Title 49 U.S.C., the V.T.C.A. Tram-~rtation Code, Title 3, Chapters 21-22, et seq., (Vernon and Vernon Supp), and the Airport Zomng Act, Te×. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vernon and Vernon Supp). It is estimated that comtruction project costs will be approximately $166,667 (Amount A). It is fmther estimated that appmxirnately $166,667 (Amount B) of the project costs will be elibdble for federal financial assistance, and that federal financial assistm~cc will be for ninety percent (90°/3) of the eligible project com. Final determination of federal eligibility of total project costs will be determined by the State in accordance with federal guidelines following completion of project. In the event that federal funds are unavailable, this Agreement shall automatically be voided and become of no force and effect, except that unexpended or unencumbered moneys actually deposited by the Sponsor and held with the State tbr project purposes shall be retumed to the Sponsor. The maximum obligation of the United Smtcs payable under this offer shall be $150,000 (Amount C). This grant should not be conslmed as block grant funds for the Sponsor, but as a grant for funding of the scope items as listed on page one ofttUs agreement. It is the intent of the State to provide funding to complete the approved work items of this grant and not to amend the scope of work to include items outside of the currer~ detcrm/ncd needs of this project. Scope of work may be mended ~s necessary to fulfill thc unforeseen needs of this specific development project within the spirit of the approved mope, subject to the availability of state, federal, and/or local funds. It is estimated that the Sponsor's share of the total project costs will be $16,667 (Amount D). The Sponsor specifically agrees that it shall pay any project costs, which exceed the sum of the federal share (Amount C), It is further agreed that the Sponsor will reimburse thc State for any payment or payments made by the State in behalf of the Sponsor which are in excess of the federal percentage of financial participation as stated in Paragraph 11-2. The State shall refund to the Sponsor, at the financial closure of the project, any excess funds provided by the Sponsor. If them is an overnm in the eligible project costs, thc State may not increase the bnant to cover the amount ofoveman. The Sponsor is responsible for all overruns. The State will not authorize Page 2 of 27 expenditures in excess of the dollar amounts identified in this Agreement and any amendments, without the consent of the Sponsor. Payment of the Un/ted States share of the allowable project costs will be made pursuant to and in accordance with the provisions of such regulations and pi, ocedures as fl~e State and FAA, shall prescribe. Final detmn~tion of the United States share will be based upon the final audit of the total amount of allowable project costs and settlement will be made for any upward or downward adjnstments to the Federal share of costs. Sponsor, by executing this Agreement certifies, and upon request, shall famish proof to the Slate that it has sufficient funds to meet its share of the costs as stated, The Sponsor grants to the Slate and federal government the right, upon advance written request during reasonable and regular business hours, to audit any books and records of the Sponsor to verify said funds. In addition, the Sponsor shall disclose the source ff all funds for the project and its ability to finan~ and operate the project. Expenditnres for eligible project costs for the above project made by the State or the Sponsor prior to the award of a federal ~ant for said project, and prior to actual receipt of the authority to expend federal grant fimds, shall be made from Sponsor funds. Monthly grant payments to the Sponsor will be made upon request to the State. Payments of the State's share of the allowable project costs will be made m proportion to the amount expended by the Sponsor for the eligible project costs. No more than ninety (90) percent of the total grant will be paid prior to the completion of the project. The last ten (10) percent of the grant will be paid only after the staffhas inspected and approved the completed project. PART Ill - Sponsor Responsibilities In accepting the Agreement, the Sponsor guarantees that: it will comply with the Attachment A, Certification of Airport Fund, attached and made a part of this Agreement; and it will comply with the Attachment B, Airport Assurances (9/99)(State Modified 9/99), attached and made a part of this Agreement; and it will, in the operation of the facility, comply with all applicable state and federal laws, rules, regulations, procedures, covenants and assurances required by the State of Texas or the FAA in connection with the federal bnant4 and the Airport or mvigafional facility which is the subject of dais Agreement shall be controlled for a period of at least 20 years, and improvements made or acquired under this project shall be operated, repaired and maintained in a safe and serviceable manner Page 3 of 27 for the useful life of the improvements, not to exceed 20 years; and consistent with safety and security requirements, it shall make the ah-port or air navi~fional facility available to all types, kinds and classes of aeronautical use without unjust discrimination betwe, tm such types, kinds and classes and shall provide adequate public access during the renu of this Agreement; and f. it shall not grant or permit anyone to exercise an exclusive right for the conduct of aeronautical activity on or about an airport landing area. Aeronautical activities include, but are not limited to scheduled airline flights, charter fights, flight instruction, aircraft sales, rental and repair, sale of aviation petroleum products and aerial applications. The landing area consists of nmways or landing strips, mxiways, parking aprons, roads, airport lighting and navigational aids; ard it shall not permit non-aeronautical use of airport facilities, unless noted on an approved Airport Layout Plan, without prior approval of the State/FAA; and k it shall not ente~ into any agxecment nor txamit any aircraft to gain direct ground access to the Sponsors airport from private property adjacent to or in the mediate area of the airport. Further, Sponsor shall not allow aircraft direct ground access to private property. Sponsor shall De subject to this prohibit/on, commonly known as a '~krough-the- fence operation," unless an exception is granted in whting by the State due to extreme circumstances; and it will acquire all property interests identified as needed for the purposes of this project and comply with all applicable state and federal haws, roles, regulations, procedures, covenants and assurances required by the State of Texas or the FAA in connection with the federal grant in the acquisition of such property interests; and that airport property identified within the scope of Ibis project and Attomey's Certificate of Airport Property Interests shall be pledged to airport use and shall not be removed ficrm such u~e without prior written approval of the State; and the Sponsor shall submit to the Stale annual statements of airport revenues and expenses as requested; and all fees collected for the use of an abort or mvigational facility constructed with funds provided under the program shall be reasonable and nondiscriminatory. The proceeds of such fees shall be used solely for the development, operation and maintenance of the Sponsors system of ai_.-~rt(s) or navigational facility(ites). Sponsor shall not be required to pledge income received from the mineral estate to a/rporc use unless state and/or federal funds were ~ed to acquire the mineral estate of airport lands or any interests therein; and an Airport Fund shall be established by resolution, order or ordinance in the treasury of the Sponsor, or evidence of the prior creation of an existing airport fund or a properly Page 4 0?27 executed copy of the resolution, order, or ordinance creating such a fund shall be submitted to the State. Such fund may be an account within another fund, but must be accounted for in such a manner that all revenues, expenses, retained earnings, md balances in the account are discernible from other types of moneys identified in the tired as a whole. All fees, charges, rents, and money from any source derived from airport operations mint be deposited in said Akport Fund and shall not be diverted to the general revenue fund or any other revenue fund of the Sponsor. All expenditures from the Airport Fund shall be solely for airport or airpoa syslcm purposes. Sponsor shall be ineligible for a subsequent grant or loan by the Slate unless, prior to such subsequent approval of a grant or loan, Sponsor has complied with the requirements of this subparagraph; and the Sponsor shall operate mnway lighting at least at low intensity from sunset to sunrise; and insofar as it is reasomble and within its power, Sponsor shall adopt and enforce zoning regulations to restrict the height of stmotur~ and use of ~d adjacent to or in the immediate vicinity of the aixport to heights and activities compatible with normal airport operations as provided in Tex. Loc. Govt. Code Ann. §§ 241.001 et seq. (Vcmon and Vernon Supp.). Sponsor shall also acquire and retain aviation casements or other property interests in or fights to use of land or airspace, unless Sponmr can show that acqmsition and retention of a~ch interests will be impractical or will result in undue hardship to Sponsor. Sponsor shall be ineligible for a subsequent grant or loan by the State unless Sponsor has, prior to such subsequent approval ora grant or loan, adopted and passed an airport hazard zoning ordinance or order approved by the State; and it will provide upon request of the State, the engineering or plarming commltant, and the FAA copies of any maps, plans, or reports of the project site, applicable to or affecting the above project; and aRer reasonable notice, it wilt permit the State, the FAA, and any consultants and contractors associated with this project, access to the project site, and will obtain permission for the State, the FAA, and consultants and con~ctors associated with this project, to enter private property for purposes necessary to this project; and all development of an airport comtmcted with program funds shall be consistent with the Airport Layout Plan approved by thc State and maintained by the Sponsor. A reproducible copy of such p 'lan, and 'all subsequent modifications, shall be fried w/th the State for approval; and it shall take 'all saeps, including lifi~9~tion ff necessmy, to recover funds spent fraudulently, wastefully, or in violation of Federal anfilru~t statutes, or misused in any other manner in any project upon which Federal and State funds have been expended. For the purposes of this grant agreement, the term "funds" means funds, however used or disbursed by the Spomor or Agent that were originally paid pursuant to this or any Page 5 of 27 other grant agreement. It shall obtain the approval of the State as to any detemdmtion of the amount of such funds. It shall return the recovered share, including fi~nds recovered by settlement, order or judgment, to the State. Ir shall furnish to the State, upon request, all documents and records pertaining to the determination of the amount of the funds or to any settlement, lifigration, negotiation, or other efforts taken to recover such funds. All settlements or other final position~ of the Sponsor, in court or otherwise, involving the recovery of such funds shall be approved in advance by the State. The Sponsor certifies to the State that it will have acquired dear title in ~ simple to all property upoa which construction work is to be perlbrmed, or have acquired a leasehold on such property for a term of not less than 20 years, prior to the advertisement for bids for such construction or procurement of l~flities that are part of the above project, and within the time frame of' the woject, a sufficient interest (easement or otherwise) in any other property which may be affected by the project. The Sponsor, to the extent of its legal authority to do so, sha~ save harmless the State, the State's agents, employees or contractors from all claims and liability due to activities of the Sponsor, the Sponsogs agents or employees performed under this agreement. The Sponsor, to the extent of its legal authority to do so, shall also save harmless the State, the State's agents, employees or contractors from any and all expenses, including attorney fees which might be incurred by the State in litigation or othenvise resisting said claim or liabilities which might be imposed on the State as the result of such activities by the Sponsor, the Spomofs agents or employees. The Sponsor's acceptance of this Offer and ratification and adoption of the Agreemem incorporated shall be evidenced by execution of this instrument by the Sponsor, as provided, and said Agreement shall comprise a conlmct, constituting the obligations and fights of the State of Texas and the Sponsor with respect to the accomplishment of the project and the operation and maintenance of the airport. Such Agreement shall become effective qx~n execution of this instrument and shall remain in full force and effect for a period of at least 20 years. The Sponsor and not the State shall, for all purposes, be the "Sponsor" of the project identified above as defined in Iitle 49 U.S.C. Sponsor agrees to assume responsibility tbr operation of the facility in compliance with all applicable state and t&leml requirements including any statmes, roles, regulations, a.~mmnccs, procedures or any other directives before, during and after the completion of this project. For a project to replace or reconstruct pavement at the airport, the Sponsor shall implement an effective a/rport pavement maintenanc~ management program as is required by Airport Sponsor Astute Nmber 11. The sponsor shall use such program for the useful life of any pavement constructed, reconstructed, or repaked with Federal financial assistance at the airpoxt. As a minimum, tl~ program must conform to the provisions in Armchmmt D "Pavement Maintenance Matmgement Program", attached and made a part of this agreement. 7. The Sponsor agrees to assume the responsibility to assure that all aspects of the grant anti Page 6 of 27 10b 11. 12. project are done in compliance with all applicable stale and f~dcral requi~ts mdudmg any statutes, roles, regulations, assurances, procedures or any oth~ directives, except as otherwise specifically provided herein. Unless otherwise approved by thc Stat~, thc Sponsor villi not acquire or permit any contractor or subcontractor to acquire any steel or manufactured products produced outside the United States to be used for any project for airport development or noise compatibility for which funds are provided under this grant. The sl~onsor will include in every contract a provision implementing this special COlX~on. SPECIAL CONDITION: Except for instrument landing systems acquired with AlP funds and later donated to and accepted by the FAA, the Sponsor must provide for the continuous operation and maintenance of any navigational aid funded under the AlP dmng the usethl liti: of ibc equipmcnt. The sponsor must check the facility, including instnznent landing systems, prior to commissioning to ensure it meets the operational standards. Thc Sponsor must 'also remove, relocate, or lower each obsltucfion on the approach or provide for the adequate lighting or mark/rig of the obstruction if any aeronautical study conducted under FAR. Part 77 determines that to be acceptable; and mark and light the runway, as appropriate. The Federal Aviation Administration w/II mt take over the ownet~ohip, operation, or maintenance of any sponsor- acquired equipment, except for immanent landing systems. The Spomor shall have on file with the State: a. A current and approved Attomey% Certificate of Airport Property Interest~ and Exhibit A property map; and Attachment C, Cerfifica6on Regarding Drug-Free Workplace Requirements, attached and made a part of this agreement. The Sponser shall submit the following ¢efdfications, as appropriate, for compliance with statutory and administrative requirements of the federal grant: a. Sponsor Certification for Selection of Consnltants; b. Sponsor Certification for Project Plans and Specifications; c. Sponsor CaXificafion for Equipment/Comtmction Contracts; d. Sponsor Certification for Construction Project Final Acceptance; e. Sponsor Certification for Real Property Acquisition. Thc Sponsor shall administer Disadvantage Business Enterprises (DBE) Program in accordance with federal regulatiom. They shall report the amount of participation to the State for the period ending September 30 of each year the grant is open no later than October 15 of each year the Page 7 of 27 grant is open~ In addition, semi-annual rcports must be submitted for the period October 1 - March 31 and April 1 - September 30. Submission shall be made using Department of Transportation (DOT) Form 4630 "Report of DBE Goal Accomplishments" and a Report of Certified DBE Contractors Used on FAA Assisted Contracts." Additionally the Sponsor shall submit with each reimbursement or paym~t request foxm, the mount of DBE participation during the lxximt of that requcst on TxDOT form "Subcontractor Monitoring System" and when appropriate "DBE Prime Contractor Payments to NOn-DBE Subcontractors 13. The Sponsor shall submit to the State the following: documentation of official designation of the consul 'tant selection corem/tree, evaluafon cfitcria, scoring matrix and consultant ranking; and if property acquisition is funded unde~ this grant, documentation of the professional service contracts (e.g. surveyor and appraisal), and negotiation and settlement agreements; and prior to entering into professional services contract: copies of the independent engineering fee analysis and negotiation stuxtrnary; and d. advance notification of the project pm-design meeting; and prior to start of preliminary design phase: design option selected after review of the prelimimry engineering report; and f prior to advertising for construction: engineering plans, specifications, bid documents, and draft construction contract; and g. prior to construction conWact award: bid tabulation and recommendation of award; and following execution: copy of the construction contract; and i. advance notification of pre-constmc6on meeting; and j. prior to exeoafion: construction change orders and supplemental agreemeats; and k. notification of the final inspection; and copies of the as-built plans and Exhibit A, property map, if changed from the one on file will~ thc Aviation Division. 14. The Sponsor may util/ze paving specifications meeting State Highway criteria fbr runways at non-prknary airports with lengths up to 5,000 feet and serving aircraR not exceeding 60,000 Page 8 of 27 pounds gross take-off weight. The sponsor agnees not to request additional AlP funds for recomstmcfion or ~ehabilitate of pavement construct ufli~ing State specification for 10 years from pavement acceptance. 15. SPECIAL CONDITION: The Sponsor must demonstrate tlmt statutory reqmrements such as minimum wage requirements and Veteran's preference were met in the construction or hnprovement of the control tower. In addition, the Sponsor must demonswatc compliance with environmental reviews, Disadvantaged Business Enterprise, professional services contracting and requirements under 49 CFR Part 18, the regulations covering grant programs including competition requirements. Part IV- Responsibilities of the State The Sponmr designates the State as the party to apply for, receive and disburse all funds used, or to be tgsed~ in payment of the costs of said project, or in reimbursement to either of the parties for costs incurred. The State shall, for all purposes in connection with the project identified above, be the Agent of the Sponsor. The Sponsor grants the State a power of attorney to act as its agent to perform the following services: Receiving Disbursing Agent: a. apply for, accept, receive, and deposit with the State Treasury any and all project timds granted, allowed, and paid or made available by the State and/or the United States under Title 49 U.S.C. and congressional appropriation made pursuant, and the Sponsor; receive, review, approve and process Sponsors reimbursement requests for approved project costs. Monthly grant payments to thc Sponsor will be made upon request to the State. Payments of the State's '-sham of the allowable project coats will be made m proportion to the mount expended by the Sponsor for the eligible project costs. No more than ninety (90) percent of the total grant will be paid prior ~o the completioa of the project. The last ten (10) percent of the grant will be paid only after the stuff has inspected and approved the completed project. pay to the Sponsor, from granted funds, the portion of any approved reasonable and eligible project costa incurred by the Sponsor that am in excess of the Sponsor% share. 3. Responsibility of the State shall include, ff appropriate, but not be limited to: a. concurrence with project scope; and b. verifica~on of corksultant selection process; and Page 9 of 27 L review and concurrence with property acquisition procedures; and concurrence with engineer~ l~; and attendance at the project pre-design meeting; and review and concurrence in design options based on preliminary engdneering report; and review and acceplance of engineering plans, specifications, bid documents, arid construction contract; and concurrence in the contract award based on bid tabulations; and attendance at the pre-consm~ction meeting; and occasional visits to the project site during construction; and review and concurrcrnce with construction change orders and .mpplemental agreements; attendance at the final inspection meeting; and maintaimg record drawings. PART V - Recitals The Sponsor shall obtain an audit as required by federal or state regulations; and procure and forward to the State and FAA such specific project documentation as is necessary to complete all aspects of this project. The Sponsor, and not the State, shall be the contractual party to all construction and professional service contracts entered into for the accomplishment of this project The power of attorney, as granted by the Sponsor to the State in Part IV - Nomination of Agent, is a limited power to perform acts in connection with airport improvements as specified in or necessitated by this Agreement. The Sponsor agrees to pursue and enforce contract items, which are required by federal and/or state regulations, laws and orders to insure satisfactory performance of contract vendors. Such items include, but are not limited to, bid bonds, payment bonds, and performance bonds. Putmit and enfomement of contract items may require litigation and other remedies of law. The Umted Sates and the State of Texas shall not be responsible or liable for dm[mgc to property or injury to persom, which may arise from, or be incident to, compliance with this Page 10 of 27 grant agreement. This Agreement is executed for the sole benefit of the conlrac~ting parties and is not intended or executed for the direct or incidenlal benefit of any third party. Furthermore, the State shall not be a party to any other contract or commitment, which the Sponsor my enter into or assume, or have entered into or have assumed, in regard to the 'above project. If the Sponsor fails to comply with the conditions of the grant, the State may, by written notice to the Sponsor, suspend the grant in whole or in part. The notice of suspension shall contain lhe following: The reasons for the suspension and the conective action necessary to lift the s~ion; b. A date by which the corrective action must be taken; Notification that consideration wit[ be given ~o im~minatmg the grant after the corre~ve action date. In thc case of suspension or termination, Ihe SIx~nsor may request the State to reconsider the suspension or termination. Such request for reconsideration shall be made within 45 days after receipt of the notice of suspension or termination. This Agreement is ~ubject to the applicable pmxdsions of Title 49 U.S.C., the V.T.C.A. Transportation Code, Title 3, Chapters 21- 22, et seq., (Vernon and Vernon Supp.), and the Airport Zoning Act, Tex. Loc. Govt. Code Ann. §§ 241.001 e~ seq. (Vernon and Vernon Supp.). Failure to comply with the terms of this Agreement or with the aforementioned rules and statutes shall be considered a breach of this conUact and will allow the State to pursue the remedies ~br breach as stated below. Of primary importance Io the State is compliance with the leans and conditions of thi. s Agreement. If, however, afmr all reasomble attempts to require compliance have failed, the State finds that Sponsor is unwilling and/or unable to comply with any of the terms and conditions of this Agreement, the State may pursue any of the following remedies: (1) require a refund of any money expended pursuant to the Agreement herein, (2) deny Sponsor's future requests for aid, (3) request the Attorney General to bring suit seeking reimbursement of any money expended on the project pursuant to the Agreement herein, provided however, these remedies shall not limit the State's authority to enforce its rules, regulations or orders as otherwise provided by law, (4) declare this Agreement null and void, or (5) any other remedy available at law or in equity. Venue for resolution by a court of competent jurisdiction of any dispute arising under the terms of this Agreement, or for enforcement of any of the provisions of this Agreement, is specifically set by Agreement of the parties in Travis County, Texas. Page 11 of 27 The State reserves the nght to amend or withdraw this Agreement at any lime prior to acceptance by the Sponsor. The acceptance period cannot be greater than 30 days after issuance unless extended by the Sate, which extension shall not be unreasonably denied or delayed. This Agreement constitutes thc fifll and total undcrstanding of the parties concerning their rights and responsibilities in regard to this project and shall not be modified, amended, rescinded or revoked unless such modification, amendment, rescission or revocation is agreed to by both parties in writing and executed by both parties. 10. All comments by the Sponsor and the State are subject to const/tutional and statutory limitations and restrictions binding upon the Sponsor and the State (including §§ 5 and 7 of Art/cie 11 of the Texas Constitution, if applicable) and to the availability of thnds which lawfully may be applied. 11. The Sponsors acceptance of this Agreement and ratification and adoption of the Airport Project Participation Agreement incoi3~orated shall ~ evidenced by execution of this ins~-ument by the Sponsor, as provided, and this Offer and Acceptance shall comprise a Grant Agreement, as provided by the Title 49 U.S.C., constituting the conWactual obligations and rights of the United States, the State of Texas and the Sponsor with respect to the accomplishment of the Project and compliance with the assurances and conditions m~ provided herein. Such Grant Agreea-nent shall become effective upon the State's written Notice to Proceed issued following execution of this agreement. 12. The state auditor may conduct an audit or investigation of any entity receiving fimds fa'om the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of timds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit comm/ttee, to conduct an audit or investigation in comection with those functs. Page 12 of 27 Part VI - Acceptance of the Sponsor The City of Denton, Texas, does ratify and adopt all statements, representations, warranties, covenants and agreements constituting the described project and incorporated materials referred to in the foregoing Agreement, and does accept the Offer, and by such acceptance agrees to all of the terms and conditions of the Agreement. xecu d this . day Witnekv/ritle x../ The City of Denton, Texas Certificate of Sponsor's Attorney I, ...~c~ Sr~t~P..rm' . acting as attomey for (,_, i 44-4 D'(-' be.,t%~ , Texas, do certify that I ha,~e fully examined the Agreement and the proceedmg~ taken by the Sponsor relating, and find that the manner of acceptance and execution, of the Agreement by the Sponsor, is in accordance with the laws of the State of Texas. Dated at %~]q,'~ )'/_~ ,Texas, this ~ day of K.J4~~, 20~. Witness Signature ture Witn~s,0I'itie ] Page 13 of 27 Part VII - Acceptance of the State Executed by and approved for the Texas Transportation Commission for the purpose and effect of activating and/or camfing out the orders, established policies or work programs and grants heretofore approved and authorized by the Texas Transportation Commission. STATE OF TEXAS TEXAS DEPARTMENT OF TRAIN SPORTATION Date: David S, Fulton, Director Aviation Division Texas Department ol lfansportation Page 14 of 27 ATFACHMENT A CERTIFICATION OF AIRPORT FUND The Sponsor does certify that an Airport Fund has been established for the Spomor, and that all fees, charges, rents, and money from any source derived from airport operations will be deposited for the benefit of the Airport Fund and will not be dive~xt for other general revenue fund expenditures or any other special fund of the Sponsor and that all expenditures from the Fund will be solely for airport pnrpo.qes. Such fund may be an account as part of mother fund, but must be accounted tbr in such a manner that all revenues, expemes, retained m.mings, and balances in the account am discenfible other types of moneys identified in the fund as a whole. The City of Dentorh Texas (Sponsor) Page 15 of 27 ATTACHMENT 13 PART V ASSURANCES General, These assurances shall be co~nplied with ia the imformaace of grant agreemenl~ for airport dev¢lopn~nt, airport planning, and noise cxmap~ttihility pmgnun grants for aixpo~t sponsors. These assurances ate required to be submitted as part cf the project Airport Project Par~cipation Agr~emerrt {hereinafter refomsd to a.s "APPA~) by sponsors r'equosting thnrla under the provisions nf Title 49, IIj.$.C_, at~htitl~' VII, as amended_ As used hotels, the term "public agency sponsor" rncam a public agmey with control of a publi~-u~ nlq}art; the term "private spa:tsar' meam.s a peivate owner ufa public~use airport; and lira term "apnn.,~Or" ira;lades la, th public agermy ,,,panaor~ and private sponsor~. Upon ~cceptanee ot'~e grant filer by the ~x~or. these ar~rance~ are |ncorparated in and [:~come part of the grant ~tz~L B. Duration and AppHeablll~. Airlmrt dcvdnpmc~tt or Noise Compaflldllty Program Proj~t~ [Jedertaken by a Public Agency Slmnsor. The terms, conditions and amaan¢¢~ of thc grant agr~n~ shall mmin in full fccc~ and ~ect ~amugt~out the ~r~l lil;e ol'lhe fi~ilitiea developed nr ~qnipm~rrt acquired tbr an eirpcn't development nr nni~ compatibility p~ogram project, or throughout the u~ful life the I~0jeet kerns in~aLle~ within a facility under a noi~ comoafibility program project, but in a~y ~nt ~ot to ex, ned twenty year~ fix~rt ~e dale nf aeeeolanee nfs gntnt offer of Fedm"ol fun& for the I~ojeet. However, lhere shall be no limit on the tbs'allen of the assurances regarding Exclusive Rights and Aitlx~ Revenue so long as the airpoxt is used as an airporL There shall be no limit on Ihe duration of lbo Igrms, eundition~, and nastmquee~ v,4th re. spe~ to rea!. ~rc~ acquired with Ccderai duration oft~ Civil P..igh~ assurance shall be specified in the assurances, Airlmrl Develupmeat ar Noise Cnmpatibilify Praieelln Undertaken by a Private Sponsor, The. preceding paragraph ! also al~liea ~o a private ,~pmmor except that the ~eful lliVe of project items installed within a aea¢iiity cq the useful llf~ of th~ fae. ilities developed or equipment acquired undnr m~ airport d~elopnmn£ cn noi~ c~mpailbility pvo.t,wam project aha][ be no less ~an teal (1{3) years from the date of accepance of Federal aid for the p~ojttt. Airport Planning Uuderta.~a by a Spn~aer, Unl~ ol.herwiae sp¢cifir~tl in the grant agreement, only Amurnnces 1, 2, 3, 5, 6, 13, 18, 30, 3~, 33. and 34 in ~cllon C apply to pla.truing ptoj¢cl~. The terms, conditions, and asnlrances of the grant agreement sludl remah~ i~t fall for~e and effect daring t~te life of tl~ C..qpenser Cerfilicaiion. 'l'h~ sponsor lmr~by as~urc~ and certifies, with respect to this graat that: Gnn~ral Fnderal R~lUlr~m~n~s~ it will comply with gl applkable Fe~ laws, fogMatioam, executiw o~e~, policies, gu~flelin~, and ~lui~s as ~hey ~lam ~ t~ ~j~, a~tan~ md u~ of F~l ~& f~ this p~j~: ~¢l~g b~ ant Federal I..egisintin n Title 49, U.S,C., subtitle VII, as amended. b. Davis-B~n Act - 40 U.S,C, 276(a), ~ ~q,~ ~etleral Pair 1~ g~k~ls Act-~9 ELS.C. ~01~ et seq. d. Ila~ Act - 5 U.S.C. 1501, ~ Unifo~ ~l~fion ~b~ ~d R~ P~p~y A~sition Polities A~ or' ] f N~ia~ Hi~fic ~s~fi~ A~ of 19~ - ~ction g. ~h~u~l ~ H~g ~aion Act of 1974 - h. Native ~s ~vc ~on ~ - ~ U.S.C. Section 3001, i. Clan Ak Act, P.L. ~-148, ~ ~end~d. Coa~al Z~e ~ge~t A~, P.L 93-20~, a~ amen~d. k, FIo~ DJa~r Pwte~tion A~t of 1973 - Section t02(a) - 42 U,S.C. 4012a) 1_ Thle 49 ,U_S.C_, gee~ 303. (fo~er[y ~ ~ $~fion m, Reh~ili~fi~n Act of 1~3 - 29 U,S.C, 794, Ci~l Righ~ Act of 19~- Titl~ VI -42 U_S.C. 2000d ~rough o. Age Di~fi~ Act of 1975 - 42 U,S.C. 6101, et Amefimn ]~ian Religi~g Fm~om Act, P.L. 95-341, ~ amerind. ~ B~ A~ of 1968 42 U.S.C. 4151, ~ ~,~ Pow~ plant ;md ]ndu~al Fuel Use Ac~ of 1978 - ~clion s. Co~ W~kH~ ~ ~ S~ Act - ~0 U.S.C. 327, ~ ~q.~ t. Co~l~d ~tikir~a~ A~ - 18 U.S.C. 874. ~ u. Hatio~l ~vi~en~l ~Kcy Act of 1969 - d2 U.8.C. 432 WiM ~ S~ti< Kiw~ Act, P.L. 9~342r ~ ~n~. w. ~gl¢ A~dit Act of 1984 - 31 U.~.C. 7~01, ~ ~q? x. Dmg-F~ Wo~ A~ of 1988 - 41 O.S.C. 702 ~x~ 705. Executive Orders Exe~ntive Order 11246 - Equal Employm~n~ Opportunity ~ Execmive Order 11990 - Prntection et'Wetlands E,,x~¢utiv¢ Order 11998 ~ Flood Plain Management £xeeullve Order 12379 - Inmrgnvemmental Review of' Federal Program~. Executive On~ 12699 - Selm~i¢ Sat'gey of Fed~al and Federally Aasisted New BuildSeg C0nstmctio, t ~ £necntive Ord~ 12R~ - Envlmnmental Zustice Federal Regulatloi~s a. 14 CFR Pan 13 - Mves~igafivc and Enfa~ement Procedure& Page 16 of 27 ]4 CFK lan 16 - RuL~ of Practice ¥c~ Fo~vally ~t~d Ai~ ~t~t 14 C~ Pa~ 150 - ~fl noi~ c~patlbJli~ piing, 29 CFR Pan ] - ~ Ibr p~mrmi~mlion of w~ m~~ 29 CFR Pan 3 - ~n~ ~d ~~ ~ ~ic ~ld~g or p~blie w~ ~d ~ whole or 29 CFR P~ 5 - ~ ~ ~vi~ions ~llc~[e ~ ~n~ ~v~g fe&~ly fi~c~ ~ ~d (also la~ s~ ~is~ons appfi~Le to ~n~m~cfi~ ~n~t~ su~ m ~ C~n~ wn~ Hum and S~e~ 41 CFR P~ 60 - Offi~ ot'Fo~l ~ ~mpl~ Pmg~]~ ~] E3n~lo~nt Op~]audit~, ~.~ 49 CFR Pa~ lg - U~f~ s~ ~e~s t~ ~ ~d ~iw a~ ~ ~ ~d 1~1 a9 CFR Pa~ 2fl - New ~ions ~n l~hying_ 49 CFR Pa~ 21 - ~s~m~6~ in t~lly~si~ p~s of ~ ~t of Tmm~ian - Title VI orthe Ci~] RighL~ Act~ 1~. ~9 CFR Pa~ 23 - P~ci~ by Di~dv~ ~ss E~ in Ai~ 49 CFR Pwt 24 -tlnifimn mh~fion ~is~ce ~d ~ pn~e~y ~uigLitm fiw F~d ~md ~lly ~ 49 ~R Pm 27 - Nonfiction on ~e bmis of~di~p in p~ ~ ~fi~tles ~c~v~g or ~n~fi~g ~m F~ 49 CFR ~a ~0 - ~nial ~ ~bli~ ~r~ ~n~ co ~ppU~ ofg~ ~d ~i~ 0f ~un~es ~ ~ny 49 CFR Pan 41 - S~c ~ of F~ ~ f~e~ly ~ts~ or re~la~d ~w ~ilding ~olls~tigl~ Office of Manageraeta¢ and Bridget Clrcula~ a_ A-~7 - Cr~,;t P~nciples Appficable to C]ran~ and Cont~acL~ wilb ~tz_m and Local (.{overnmant~. h, A. 133 - Audi~s of State~, Local Governments, and Non-l~flt Organizations (1) These laws do not apply to aiq~ort planni~tg sponsors. (2) These laws do not apply to private spoaser~_ (3) 49 CFR Pa~I 18 mid OMB Circular A-87 con,aha fo:l),irgm, gllLg for Slaty mid Loc~ GOVgiXnTle~LS mo~iving Federal assi~tanvc. Any rcquiren'g-nt levied npon State and Local Governments by this regulation and circular slmll ',~o tw applicable to private sponsors z~'ceiving l"nd~ral assistance un,m- Title 49, LJditeri .gtm~ Cod.,'. Sl~ciflc assurances required to b~ included m gmmt a~e~me~ts by any of the abow l~.v~, r~aLations or circulars me itlenrporated b~ refe~ee in the gm~r agreemem. Responsibility and Authority of ibc Sponsor. Public Agency Sponsor; It has legal authority to apply for the gram. aad to ftram¢c and carny out tJg pzoposnl F'ffoject; that a msolLdion, motion or similar action hm'~ ~ duly ndolr~l or p[3.ssed e.~ BA official ~ of thc applicanfs gov'~mLag body a.uthoriz~g the filing of the APPA, h~.cludlng alt underganding$ ar~ a:~umaccs ~;ontained 'thei~in, and directing and authorizing 6~ pemcm identified a.g the official representative nfthe :tlsplie~nt re act in ~nnection with ~he APPA and to provide sucJt additional infom~atloa as may be n~qui~d. b. Prlvale Spmmnr: It h0.s leal aufl~oriiy to apply li*r th~ grdni m~d L~ Iimtn~ ttnd garry out the proposed project and comply wilh all terms, conditions, and assurances 0f th~s grant agreement. It shall designate an official representative and ah'all in writing din:gl and authorize ~hat @or, on to fife Ibis APPA, grgluding alt undmslnndings and assm'at~s conlained therein; to act ia eotmectioa with this APPA; and to provide such additional information as may bo nxluin:d Sponsor Fund Availability. It has sufficient funds available for that portion of'flag project co.~ which am Iml to he paid hy the Udiled grates. It aa sufficiem fuM~ available ~ assa~ operation ~d mnimennnce of items fianded unger thc graa'c agreetm~t which Good Title. a. it, a public ag~iuy or tlc Fed~al gownunant, hol~ good tiU¢, satiuthcLory to tho Set~te~, to th~ landing ar'e~of thc alrpon or sire zhcaeof, o~ will give assurance satlsfaeto~' to the ;Secretary tlmt good t~tle will ~e agqulm& b. For norm conkoatibiliiy pv0gram projects to be cai'tied out o~ the pruperty of the sponsor, it holds good title satisfacrow to thc Secretary to ~hat portion of The property uptn~ which Federal funds will be expended or will give assurance to the Secretary tha~ good title will be ob'a-2ned. Preserving Rights and Powers. il TL will nc~L I~&e IIr permit any il~c-nlon which would ~evat~ ~o d~v¢ ii o~any of~c fi~s ~ ~wc~ ~ my ~l ff~e ~. ~n~ti~, ~ ms~c~ ~ ~e ~t ag~me~R wi~ut the wdt~ S~, ~d will ~ 0mm0tly to ~qui~, extinguish ~r ~i~ aW ou~ding figh~ or cln~ ~f ~ of ~e~ whkh world in~ ~ ~h ~o~ce by ~e s~, ~ s~ll ~ ~c ~ a ~er ~le b. It will nec sell. lame. e~um~r, or o~e~ ~f~ ~ ~s~sc of ~y p~ of i~ ~c ~ o~cr ~ in ~ pmpm'ty shown ~n E~ibit A to this APPA or~ Iht a noi~ coa~patibility pnl~am pmjecir lhot ~on of~e p~ a~t wi~lout ap~ ~ ~ ~. If ~¢ ~af~ is fo~d by ~ S~ m ~ eligible und~ T~{Ie 49, g~ ~ ~ out aB such ohli~o~ the spoiler ~H i~R ~ ~e ~nWact ar d~ument ~nffe~ng or die,sing Page 17 of 27 10, !1. 12, 13, 14. 15. of~h~ spin,oCs iotcrcst, ~nd u~),k~ biadi~ upou ~l~ ~mf~c ~[ of~c t~, c~i~ons, ~d ~l~ conta~d · i~ ~t ~cmcm. For ~1 noi~ com~fibdity pm~ ~j~h which am tu ~ c~ ~ut by ano~er unit nfl~l go--em ~ ~m on p~ o~ by a uni~ ofl~l go~t ~ ~ ~e s~r, it ~11 ~t~ into ~ a~ent wi~ g~gm, ~c~ ~ o~e~[g s~¢iftgd by ~o S~r~, fl~at ~n~l ~1[ ublS~te t~t govem~nt m the same ~ems, ~ilions; and ussm~s ~ would ~ a~li~ble to it if it ~ii~ dig~ly ~ ~e F~ ~or a m~g ~ noig cm~bilJ~ ~ ~j~gt. Th~ ~ ~d c~s ~o mg~ ~ ,~Lisfi~ 1o the 8ea~. It will raga s~ps m ~ ~is ~m a~in~ ~e I~al ~v~1 if~ is mb~t~l For noi~ mmp~ibili~ pmg~ proj~ to ~ e~i~ eeL mt pdvmely u~ed pm~: ]t will em~ M~ ~e o~ ~t ~ w~ ~1~ pm~si~ ~ifiM by ~e ~c~. It will ~ s~s ~ e~ ~is If the ~r is a ~vale s~r, it will ~e ~ ~cr~ ~ the ~m~ to e~ ~t ~ or ~ ~[~ ~ ~ ~, ~ ~r Mll mse~ ~ffigignl fi~ mid nuttily ~ h~m ~t o~ated and ~in~d ia ac~e Title 49, I)nited gm~ C~, the ~]a~0ns ~d the te~s. ~tlons Cousistency wllh Lacal Plans. Thc project is reasonably consistent wi~h plans (exiSting at ~¢ time ofsubJ~ssiou of thi:; APPA} ofp,,blic agencies that am au[horiz~l by Ih~ 8 'lat~ in which the pmj~t is locat~al to plan tbr the development of the m surrouadit~g O]c airport. Congldenatlon o! Local lMer~t ]I hez giveu t~i~ consideration lo thc inlcve~ of ctm~munities in or near wher~ thc project may tn loca~d. Cons,,ltatioa wilh Uset~. In makig a decision to urderl:ak¢ any airpor~ dgv¢lopmmt ~xo~e~t under Title 49, United Slams Code, it has Lmt~rakon reasonable consutlalim~s wflh atli~t~ pm'ties using ~ae airlift ar which ~'ojeer is propoaed. Public Hearings. la projects involving ~he location ofaa~ a]rlmrL,fm airport runway, ~ ~ for p~lie ~a f~ ~ p~ of ~i~ng ~e ~ ~i~, ~d ~v~ ~ffg~ of ~c a~a or m~ay l~tion ~d i~ co~istcncy wi~ goals ~ objectives of such pl~$ ~ Im ~ c~ oat by ~e ~uni~ a~d it shaft, wh~ ~u~ ~ ~ ~, s~mit a m~ of the ~ ofs~h h~s m ~ Sem~. F~, f~ s~h ~je~, co~nnili~ t~l ~gy hav~ lhe riehl to ~lion the ~m~ c~ing a pm~ Air nad Water f~'nnlily ~ilandards. in pmj~ts involving ai~ I~on, a mnjnr runway ext~ginn, or mwfiy l~tL~ it will pmvi& f~ ~he Gov~ of~e ~ in w~eh ~c ~j~ is l~a~ m ce~i~ in ~tlng Io~gt~, ~si~d, ~, ~d ~ m ~ ~ ~mply wi~ ~pllc~l~ ~r ~td wam~ quality sma&m~s. In ~ ~ w~ ich ~nda~s ~ave not ~m ~mv~ and w~ a~limble ak ~ wat~ q~li~ A~smmr of ~ ~v~ ~ Agm~, c~fication shll ~difi~ttim ur mr~d ~ ~fy shall ~ ~vi~d within s~ days afl~ pmi~ Pavement Pr'evuntiv~ Mainl~nanc~ With ~spect to a pmjec~ approved afl~' Jannary l, 1995, for ?he replacement or n~analmction of pavemem at the albert, it assures or ceatlf*es th~ it has ~mplementcd an effective airpozt p~vemeat mainframes- management pm§mm m)d it a.qsur~q ihat it will u.qa s~lm pn)gr~amq flit I]lt~ mm~uJ IH'e of uny parrot eonsmuYaxl, geon~0~ted or repaired with l:ederal financial asa~ee at Ihe akport It will pmvlde such reports on @avement condition and pavement management programs as the lea:t~ta~ d~t~m~es amy b~ useful, Terminal I~vdopmmt Prerequisites. }'or projc~t~ whkh include tgm~.ttal devdopmeat at a public use airport, t; defined in Tkle 49, it has, on the date of submiltal of rite project grant request, ~[ the ~afely equipment requi~ed for c¢ffific, al~on of suCh &iq>or~ ua&:r section 4~*706 of Title 4~, Uafitgd Skates C.o~, and all iht segmily equipm~'nt axluimd by rule or regulation, and has provided for ~c~s an the p~.q~nger enplaning and depl~ng area of such airpo~ to passengexs c~i~lanlng md dcplaxiag from aircraft other than dr carrier AccountiRg System, Audit, aud Record Keeping Requlrement~. iL sl~l keep all pmj~L ~ ~d ~ which fully di~le~ ~c ~oum ~d dis~idon ~ r~ ~ipi~t of~e ~ of ~c ~t, ~ ~l ~ of ~e ~j~ ia colorlon ~ which ~c ~t ~ ~ven or usg~ md ~ ~lo~t the P~i~, ~¢ ~muam and r~s shall be ~i in aeeo~m wi~ an ~omtiag s~cm ~t will fgi[iUg ~ eff~ve a~t in a~ ~ ~e S~e Audk Act ~ log& b. 1~ s~l ~ avai~blo to ~e ~ ~d ~ Cm~ll~ (~1 of the Uni~d Sta~s, ~ any of ~[r duly ~o~ ~m~m~g, for~ p~ ofa~l ~ e~a~, my ~, d~onm, p~% and m~mls oFth~ [n ~y ~ in w~ a~ ~ a ~t R ~ of ~ a~ of a ~r m left ng m ~g dis~sJtion o f ~t~ yr~ ~a ~t or m~ng ~ ~ pmjmt ia ~ng~on wi~t w~x ~g ~ w~ gi~ ar m~d, it shall file a c~ificd ~ ofs~ au&t ~ ~o C~llcr G~ of~c Uffimd g~$ not later ~ s[a (6) mon~ following Minimum Wail* P~m. It shall incltt~, tn all c~am~c:ts in ~xcess of $2,~ for ~ oa any ~me~ which in. lye la~r, provisions ~lishiag minimum ra~s of wag~ ~ a~ with the Dads-Bacon Act, ~ ~d (~ U.S.C. 276a-27~-5), which coat. rs shall ~y D skilled ~d unskilled i~r, ~ ~uch minimum [~ s~l ~ s~d iff th~ i[]vi~timt for bi~ ~d shaLl ~ i~lud~ in p~osal~ o~ bids f~ ~e ~. V~ran's Pr~fer~oee. It shall include in all coa~xaeta for work on any project ti~ded u]ut~r {he gllal ngl~ement which involve labor, such In~visirms ms are ~ece.*~ary to in.~ure that, in the empl03mlent of labor (ex¢c'pl La ¢×~x:uSve, administrative, xed Page 18 of 27 16. 17. 18. 19. 20. ?.1. 22. gupe~visory positions), preference shall be givem to Veterans of the Viclllam cra and disabled veteran~ as: dermal m Section 47112 of 'l'[tlo 49, Urtitod States Code. However, this pre~..mnce sial] apply only wh,e~ '~h~ indivld~aals are available and qu~.lkfiecl to perform work 1o which the employment ~elates. Conforming to Plans and Specifications. It will execute the project subject to plans, apccifi~tions, and sc.J~nlcs approved by thc Secretary. 8reit plans, s!xgificatio~m, and schodulca shall bo submitted m tho ."4ct:a~ary prior tn commen¢~llent of site preparation, corian'action, or o~er peffot'maae, eumler ~fi$ grant incoqlorated into this grant agro~rrionL Any modification to the approved [alans~ sl~eci[ications, Lad schedules shall also be subject to approval of the 8e,~etary, and incorporated into thc grant C~on~fruetian Inspection and AppravM. It will provide and maintain ~t ~c~cal $u~i~ =t ~ con~on ~te ~oo~ut ~ project ~ ~'~ ~ut ~c wo~ ~afo~ ~ ~c p~, s~ifimfi~s, ~d ~h~l~ ~pmvcd ~ t~ g<~ for ~e p~j~. It ~1 subj~t &e e~et[~ w~ o~ ~y p~je~ ~n~d M ~ ~ved ~jgt APPA ~ M~tion ~ ~proval by ~ ~g~ ~ sa& wa& ~1 ~ ~ ~ wi~ ~gulatiom ~d p~ p~d ~ the ~_ ~h m~lati~ Hashing Proj~et~. In ~rqting out plmmmg pmjet~tq: it will exee~ ~e pmje~ m~figafio~ a~ilmly ~prov~. It w~l ~h t~ S~ ~ ~ ~e ~m ~ ~d ~g ~ ~e pl~Jng ~j~; ~d pl~ing work ~tivities, c. It will mclud~ in all pu~]i~ ~al p~ p~d ~ a ~t ~ ~ th~ Uni~d S~t~. d. It ~ill ~e s~gh ~t~ avMl~l~ f~ ex~i~ ~y Ihe ~blle, and a~s ~at no ~t~M ~ with ~n~ under ~is pmje~ a It ~ill give ~ p~ ia c~gfi~ wi~ ~is ~t. f It will ~mt the ,%c~ t~ fi~t to di~pp~ve ~ s~ds e~lo~t of s~m ~n~l~ ~d their su~ pmf~s~ g. It will ~t ~ Se~ ~e fi~ m dis~pm~ ~¢ ~ of~ ~ ~ley~s ~ do all ar ~y p~ el'tim pmjeeL m~al ~vel~d OperaHon and Maintenance. a. Thc aiqm~t and all facilities which arc n~mag, to sorve lee a*zrn~ufical u~r~ of the aiTl-,ort, other thma facilitics over~t or con'tm]l~ by th~ United Stales, ghall be operated at all times in t safe md serviceable condition and in a~,~ocdance wi~ the minima gandardS as ma)' lg requked 0r presciila~l by apph "cabl~ Feder, d, stalg and lc, mi agencies for m;dnt~naneo nad operation, h will not muse or permil any activity or actlon ~ercon which v,xruld [n~-g with its us~ for aiqaoR plarposo$~ It will alilably ol:grat~ and rrmntaio thc airart and all facilities therenn nr tmnnecled therewith, with flue regard m clirnatie nnd flood enndilinns. Any propogal i0 t¢cffiporarily clone the airpmt for a¢~n-atam;autical puqx~¢s mttsl first be aplaVOv~, by thc 8*cr~tary. In ~c~ oftlfi~ a*alrance, tl}¢ q}oo~r will haw ia ¢ffoct arr~nenm ft~- (1) Operating the ai~rr'~ a,:ammufical faeilidc~ whcncvor required; (2) P~mptly marking and lightmg h~ rgsultiag £rom airpmt conditions, including temlmmry conditions; and (3) Prompt~ node, lng ainm~ of any eonditlon affeetlng aeroaaa'fieal use oft,he ah'po~t. Nothing contained h~r,m shaJl I~ conatm~l 'ca roqmro that thc aiq~rt be operatad rl)r aenmauficu] use during temporm--y pm'ioda whoa snow, flood or other climatic conditions intm-['m~ with such operation and malmmlance. Further, nothing ho'cia shall be cmstrt~ as rgtniring the maint~nangn, :q~alr, ~,ration, or t~pmal~olm~l ~,r ~,,y ~;tru¢,tlr~ or ~oikit3, whlrla i~ mhsLsmfially damag~sd m' d~glmyaf] dn~ to an etet of God or oth~ eoilditioct or elreurr,.$tan~ beyond the control of'tl~ sponsor, It will suiLahly {lperd~ and maintain noise compafi[ql]W program items that ~t owns or ¢Olm~olg upon which Federal Curds have been expended. Haz~r~l Remowl and Mitigation. It will take appre~arlat¢ action ;o agar,re that such terminal aimpa~¢ as i.s roquired m protect inatamgnt and visual opara0.mt$ to tho airport (includiz~g ~:stabliMu:d min/rmnn Hi,at altitudes) will bo adequately cleared and prmeetefi by removing, lowering, relocating, marking, or lighting or otherwise mitigath~g existing a{q~ort ~ and by pr~cnting thc establish~rgr~ or creation of futm ~fl 'hazeLs. Compatible Land Use. It will ~ake ~propr~ action, to the oxtent reasonable, i~tcluding the ;uloprion of' z~>uing la~, to restrict thc use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with :tormgl ~iqaurt 01:gratiano including ]andlag a~l lal~off of ak,~a.R. In addition, if tlm p[oj~'t ia for Role: cm~afibility program implementation, it will n~t e. an~ ct p~rmit nny change in land use, within ~ts jurisdlctlon, that will reduce i~s compatibility, with re~po~t to tho airport, oftl~ n0ir~ cmnpafibility p~o~,n ms llpOll which Federal fuad.s huvc I~n expended_ Economic Nonai~erimin,~lon. a. It will nml~ thc airlyor~ avail'dale as an airport I~r publin tL*,e rm reasonable terms and without ttajust discrimination to ail types, kin4$ a~d ¢[a.~ses of aeronamical activities, including ¢ommcTcial a~ronauiicai aeti¥ifies otTerlng sca'vices to Itl public at tho airport. b. la my agreement, earth"act, k:a$c, or or. her m'ranlgemertt tmdcx which a right or privilege at the. aiqaog ia gramcd tt* any peach, finn, ur corporation to oanduet m ~ magag~ in ~n¥ ~mrmm"ieal activity for fumighlng service~ to the public at thc airf~, the sponsor will insert and ea~'orce provisions requiring the contraclor to- Page 19 of 27 23. 24. 25, 26. (1) furnish said ~:~i¢c~ on a r~a.~onable, and not ~j~y di~mL~o~, b~is to all u~ volmne 1~. ~ ~ o~mr at ~ ~ s~l ~ subject W ~ ~ m~ ~s, ~ ~ ~fo~ly ~pli~ to all ~er fm~-b~ o~rato~ ~ng ~e ~e or si~l~ ~s of such au~ or ~ ~ ~ ~ ~ ~e ~y air ~ at m~ ai~. ~h ~r ~i~ ~ing such ~ (w~a ~ a t~ ~k or sub~l~: of mmgt~ air sohj~ to a~ch nondi~minao~ and sub~miaUy c~pa~blc ml~s. m~dalions, ~ndkio~. ~s. f~s. ~ls, ~d o~ c~m wi~ ~ ~ f~ilities ~y md subs~t~lly ~la~d ~ pmvi~g air t~mslm~inn ~s a~ ~]ia~le lo ~1 such air ~ wh~ ~ke si~l~ u~ of such a~x and u~l~ ~ger ~eLli6es. ~ubj~t t~n~ or si~t~ ~1[ ~t ~ ~bly wield by ~y ai~ ~ ~ air ~ ~ obliga6~ it ~ll not ex~i~ or ~t ~y ~ or ~le~e w~ch o~es m p~t ~ ~on. fl~, ai~cmfl on ~e a~a ~m ~g ~y ~[~s ~ ~ own ~rcmfi wi~ its own employes [icelmlin~, bat not llmk~ ~o ~te~ce. ~k. md &el~ ~I it may ch~e ~ la tge event ~ s~r i~lf ~emi~ ~y of ~ righ~ ~d privileges re~a m in this a~urm.~, th~ involved ~11 ~ p~vi~ on ~ s~e ~om m wou~ a~ly to ~c ~ish~g of s~h ~iccs by c~e~ial ~c ~r may e~bllsh ~h ~blc. ~ n~ unj~tly ~scr~to~. c~tiom m b~ ~t by ~e s~r ~y p~hit or l~t ~y ~v~ ~, ~ or cla~ of ~m~l ~ of~e ai~ if s~h ~ is ~ f~ ~c ~& ~ of ~ ~ or m~ ~ ~ ~ civil a~on ~ of~ Exclusive Rights. It wilt i~tmit no ~xchsiw right for ~he u~c ofth~ airport by any p~rson providing, or inteadLag to providE, aeronautical ~eeg to the public. For puq~os~a of this l~nmgraph, the providing or,he services at an airport by a single fixed-be.sad agitator shall not I~ ¢ons~a*d as aa ~xcl~siw right i£both of~he following apply: It would be ura-easonnbly easily, burdensome, or impme6eal for more thnn one ~xe3-besed ope~tor 1o pro~idc such services, ~ b_ [fallowing more than one Fate~d-basext ope~alvr to provide such services wo~ld r~qui~e the reduc6.oa of slx~ Ica.~d pumuz, nt ~o an existing agreement betwe~ such single ftxe6-based oF~ratot and sugh airpoR. It ~er agre~ ~hat it will nuL eiflt~r dir~ctty or iadixmti¥, go:mt or p~rmit any p~n~n, firra, ar coqmmtinn~ lhe exal~.~siv¢ right at lhe airpoR to conduct any :~rc~a~.u0.eal acti~A'de~, including, bu'~ no: limited to charter flights, pilot ~:aining, ~.ir¢~ft r~ttal a~. slght~alng, a~fial photog~-aphy, crop dueling, imrla[ advg~.iaing and. ~surv~yinu~ ~r ~lzfi~r up, taffeta, ai~TaR roles and ser~cea~ .~ale of' aviation pea~0L-um groduet~ wlmther or nat conducted in ennjm',~on ~th oth~ ~eroneutical activity, repair and maimemace of aircraft, sale of airc~rafl pa.~ ami a~y oth~r activi6~ which tgcaum of their 6ir~c~ ~la~omhip fo the o~ration of aimmlt nan bo aeronautical activity, md ~hat it will grraiaa~ any ea¢lusiw rlgh~ to coad~:t an a~ronaufical activi~ now existing at such a~l airport before tl~e gram of~y a~i~t~nce under Tifl~ 49, Limted Stung Code. l%e end Rcnial ~.tructere. It will ~nbt~ a F~ and ~ml sm,crum flor ~ f~ilhiea Grad ~ at ~he a~o~ whleh ~ll ~ &e aiwa ~ selgsu~n~8 ~ ~slble un&r ~e ci~ces ~g ~ ~e p~cul~ ~a. ~[ng ~to ~omR such factom ~ ~e voh~me nf~ffic ~ ~y nf cnll~n~. No ~ of~e Fc~t s~ of ~ ai~n ~cln~at. ai~ pl~g or ~pa~iliW p~j~ for which a ~ is ~ ~t Till: 49, ~it~ States C~. ~e A~ ~d Airy ~p~vemo~ Act of 1982, the F~I Ai~o~ A~ or the Ai~o~ ~d A~y ~elop~nt A~ 0f 1 ~0 s~nll ~ i~luded ~ the m~ ~is ~ Airport a_ All revenues generated by the a~ ~ uny [o~1 taxes on a~on ~el ~bli~M ~fier D~m~ ex~ded ~ k f~ ~ ca,mi ~ ~]ng cosU of~e a~a; ~ ]~al a~ system; or ~er n~d ~ ~ ~ ~ n~ ~ o~t~ of~e ai~ ~ ~ich a~ di~ a~ ~n~ally ~ m ~e a~ml air ~:i~ of~ or p~; ~ f~ nolg ~:i~fi~ ~gs ~ or cff~e ai~ ~vi~ ~ if~ ~r m~m~3 in ~ ohli~fions ig~ ~b~ S~ 3, 1982, ~ the o~ ~ ~mtor of~e ai~ or pmvisi~ ~ ~tog S~ 3, 1982, ia gov~ing s~mtgs ¢~II~g ~e o~ ~ o~o~ to ~ nm ~ly ~¢ a~ but al~ ~¢ ai~a o~ or o~s g~ ~ oblig~[om or o~gr ~ili6~, th~s llmlmfi[m on ihe u~ of ali ~Venll~ ~{ ~ ~e aiwa (and, ~ ~he c~ cfa public avia~on ~l) ~a]l ~ ~ply. As ~ of ~¢ ~1 au~L ~u~ ~r ~ Single Au~t Act of ! 9~, ~c s~r will di~t t~t review, and ~ ~sul~ a~t ~ w~lt ~v~ ~ opi~oa conce~g, ~ ug of ai~ ~ ~d ~es in m~nor ~n~ia~nt wi~ Titl~ 49, United 5~s C~c ~d ~y o~cr ~pli~b]e p~vlsi~ of taw, J~clud~g ~y ~an ~al~d ~y ~ Sc~ ~ A~ing~tor. c. Any civil ~n~lries or o&~ ~cti~s ~11 ~ imbed for vioh~on of this agsum~ tn a~ wi~ ~e ~sioas of Sm6on 47107 of Title 49. Uni~d 5~t~ ~. Reports and lasincliefla, it will: a_ sulanit tu 0m .%orea~y such annual or si~zial finmtcial ami ~r, aioas repons ns ibc Secretary may reasonably request and raak~ such reports aYailablc to tl~ public; make availabl," to ~he public at rea.so~,abl¢ tim~ ami plates a ~ of the airp~ budget in ;~ fonnat ga~'fibed by thc b. for airport development projects, m~ke d~ ~ti~ and ~[ ai~o~t records and. tlocum~ts afl*crag +.he ai~ocg including de~l~, leases, uI~ra~o~ ',md. us~ agnmmgnls, rcg~ations and other in.~a~rcenm, zvailahle for inspe~on by any duly au~orlzed agent of thc Secretary upon reasonable Page 20 of 27 27. 28. 29. 31.. fca uoi~c ~mpatibility pmgnun projov-% makv ic~md~ ~d d~cn~ ~dafing :o thy p~oj~t md ~uafinucd ~mpli~ with ~ to~, c~ons, ~d ~ of~ ~t a~emem {~lu~ng de~ I~. ~, rc~lafio~, o~ez ~, ava~l~ f~ ~ion ~ any duly ~o~ ag~ of~ ~r~ u~n ~e~onabla ia a fo~t ~d ~e p~fi~d by ~ ~, provide to ~ S~ and ~ke avni~ble to ~c ~ub]k ~h of i~ fi~ ~ ~ ~ r~d Listing in (i) all ~unm ~id hy ~ ai~ ~ ~y ~ unit ot-gnvemm~t ~d the ~s for which ~ch (ii) all ~i~s ~d ~ pmvid~ hy the ai~n m a~ uni~ ~f gnve~ment and r~ am~nc of Use by Government Aircraft. It w~ll mak~ available all of the facilities of the airport developed with F~cml financial a.~istaac, e and all those usable for hmding ~md takeoff of aircraft to the United gta~es for use by Clovemrnem aircnffi ia common with other aircra~ at all times wiLl,out charge, except, if the u~e by Government aircraft is substantial, cha~e may be made for a rtamnabJc share, l~,rop0rdonal tn .such us, e, for the etx~rt of npeml~ng and ma]nra[rang ~e facilities mod_ t. Jnl~s othm"wisg d~orminead by the Secv~aty, or otherwise agg~ *o by the sponsor and thc using agency~ substantial use of an aiq~n by Gowxzm~-at ~rcraft will be considered to exist when operatic~m of such atrcmR are tn exce.~$ of tlmse which, in the opinion ~fthe Secretary, would andu[y irt[effete vAth use of :he landing areas by other authorized aiwtaR, or during any calendar mon~h that- n. Five (~) ~n m~re Cn~vernmeat aircraft, are regulazly ha_qed ut die airpnrL or un I:~t] m]j:a:enl thereto; or b, The total number 0f movements (counting each land[ag as a movement) of Govemmem aircraft is j00 or more, ur the gTO~ ao.:ttmul'.Rive weight of Gnvernmenl almmfl tmmg Lhe ai~nort (Lite Lo[al mnvemm~. ~ff Govornme~t aircrMt- multiplied by g~oss weighs of such airer-~) is in excess of £:ve million funds. Lami for Federal Facilities. It will fumL~h wi~out cost to 1~_c Federal Govemmc~ for usc in cunco;finn w~th any air non[mi or air navigation actlvlti~, or weather-mpa[ting and commtmicatinn acfiv~fie.~ related to air Untie cona-ol, any are0g of land or wmer, or estate then:in, or fights ia buildings of the spomor as the Secretary considers necessary c~ desirable for ¢ons~uction, opera[kin, anti maintet~atc~ at Fedm'a[ enrnm~ of space or Ih~iliti~ for sa~h purposes. S. ucll m'ao.$ or any pmti.n iher~F ~11 he made available as pm~vlded bernie withln four maths after rece[pl ora wrilten reques~ dom the airport Layout PlEa. It will ke~p up to date at all ihn~ an aa'port layout plan of tho aii~r~ showing (1) bornE[at[es of the airport 'ami all proposed add?dom thereto, together w~th ~he bouad~e~ of' all off,4te area~ owned or controlled by the sponsor airpoxt pmpos~ and propused additiong thereto; (2) the location m~d nature of all eh[sLing and proposed aiqaort thgiiltieK and slructu~s (such as runways, taxiway~, apron~, terminal buildings, ha~gata an~ ronda), iaclading all laoposed extensions and reductions of oxlstiag airport facilities; and (.3) the location of all exlatiag and prolmsod ao,avi~Lfimt a~eas and 0fatl existing Lmprow. mcnts thereon. Such ~irport layout plans and each amendment, revision, or u~di1.~cati0a [hencol, ~hall i~ subj.[ ~ the ~pmval oft. he Secr~a~T- which appsoval ~]ull lie cvid~Ef;ed by the sighting of ~ duly nathori~'t representative oCt he Secre,ar~ on t~e fa*e of the airport Inyont plan, The Slm~r will not make or p~mit any cha~g~ or altemion~ in the ~ or any oflts facilities whicli a~ not in conformity with tho airport ~ynut plan ~ approved by the Secretary nad ~hlch might, in the opinion of the genre[sty, ndvea.~_~ affect tl~ safety, utility c-r efficiency of Ib.c alqx~'L ii. Ifa ehang~ or nltemfian in the ~it'port or the fu~ilifi~ is made which the 8ec~ta~ determines ndYemely atTix'tq the anfety, utility, or effieie~-y of a~ federally owned, In.cd, or funded ptOlmay on or off the aL'Tort and which is rot in eon tormity with lhg ai~orl layout plan as appmvetL h y the Secm~try, the owns- or operator vail, if reques/~l, hy the Sec~lar~ ti) eliminate such adverse effec: in a manner apgroved by the Secretary; or (2) bear ail c:o~ts of g:logatlag such proreRy (or replacement themot) to a sit~ acceptable to tb.e Secaeta~ and ali costa nfre~to~ng .guah prnT.,m'W (er rephcemeat dr~reot') to ~e level of rmf'~, utility, effmiency, ami oo~t of operation exi~ng before the mml~oved change m the aiqmrt or its facititJes. Civil Rights. l~ will rumply with sm;h mica a~ am paomulgated in ~¢ ~t no ~m0n ~hall, 0~t tho ~un~ of race, cgcd, eol~, nafi~l ~gln. ~x, age. or ~d~ap ~ ~cluded ~m p~ipafi~ ~iv~ From Offs ~mtL ~fis ~s~tgc ubli~ O~c s~naor fu~ ~c ~ti~ 6mi~ whiO Fe~ fmm~i~ ~sis~ ~ ~mn~d to ~e pm~, exert w~ P~e~ fme~ ~i~ in.est ~e~ or ~ ~ imp~ ~n ~ which ~ ~e ~s~ce obli~s ~e ~m~ or an~ ml~ [br me I~ of ~e goll~ing ~fi~: (a) ~e ~fi~ d~ag ~ich t~ ~ ia ~d for a ~g for w~ieh F~I fi~l ~ce is ex~ or fm ~x ~ ~votv~ ~e pm~s~ ~ si~l~ ~i~ ~ ~efi~, or Cb) ~e ~fi~ ~ing which the ~po~r ~ta~ o~e~p or ~i~ of the Disposal of Land. For land purchased under a gram for airport noise compahbiliB, lauposes, [twill dlspo,~ of the l~d, whou the lind i,~ no lo.get needed fear such puq~s~s, at t~Lr market wlue, at the eetliest practicable time. That portion of[be l~oeccds of such disposition which is prolx~ior, aU~ ~o [be United $~.tes' ~are of acquisition of tach I~md will, at the diversion of the Seeratary, 1 ) be paid m fine F~x:mtary for deposit in the Tr.x~ Fum:t, or 2) be reinve_.raxt in an al:laroved noise compatibility proj,:,ct az prescribed by thc Se;xemT. (]) For land purchased under a gran~ I-bt aiqmrt clevel~lnnant pmlm.~s (other than noise eompafibilJl:y), it will, when the land is no Io~ger ne~d for ahlx, n purposes, dlspog of such lan~ at fair mark.~ valu~ o~ n-~ke available to go.:~lary an m~munt equal to the Unilod States' pmportio~ml~ sham olqhe fair mm-keL Ytl]Ue of tho ]nndl That portloe of' the proceeds of such d{sposklon which is proportlenate to the Un|*ed $~tes' share of th~ cost of acquisition of sucli I;md will, (a) aptm appliuatkm [o the gecm'lary, be reinvestml ~n amdher eligible airpoa improv~mont project or projects approved by the Seeretar~ at that airpmt or wldtla ~ national nlq>ntt system, or (b) be paid to the Se~rr,etary fur d~posit i:t thg Trust Fund if an gl[gibl,s pt'0J~¢t oni~ts. (2) Land shall be eomider~d to be ~teeded ~r airpor~ puqaoses uadea' this a,.~urance if(a) it may be needed for ae, ronatltic, al pUil~O~s (illgltldiug rllltway pfote~J, oll zones} or i~rve as noig b..Lffer land, 'and (.b) lhe rewnue filwn intern u~s of such lind eon~buto to the f~.mmelal aelfmfficieney of ~lx: airport, Ftmh~, land pu~a,a,r~ wlth a grant rer.~iwd by an akpo~t operator or ,ywn~' bet-or* ~cen~ber 31, 1987, will be comlder~l to be neecLed iht airart pure.es il'the Secretary or Federal agency making sucl~ grant before ~ 31, ] 987. was notified by the operator o{ owner or,he Page 21 of 27 33. 35. 37. u.se.~ .f .such la.~ d;,d no£ u~jv*t tr+ such u.~, ~md thc land c. smtlaues to I~ x~sod for that puspo~e, reich use hawing commented no later than Decembcr 15, 198.9.. D/sl~c. itioa of st~h land m~der (a) ox (b) will I~ subject 1o thc retention o~ rese~alSon of any inlerca or figh'~ th¢~in neeess~ t~ ensure that such [and will only be us¢~ los pu~se~ which are ~mt~atible with nois~ l¢~ls assa:iat~d wi~ Ol~¢ration of thc airI~, p~ct sr ~rvi~ of a f~ co~ ~g ~e ~d~ in whi~ ~ f~ ~ is li~ ~ ~e [In~6 Sta~ T~ R~ivz ~ de~ng fa~ ~d ~ui~lc ~c~ ~ri~ f~ p~L~ ~d ~li~ of~e Uni~ S~s ~ g~ent ~d ~on~on. Pnllele~ Standards, and Specifications. It will carry o~ the p~jcct in a~an~ with ~licLes. ~, ~d s~ific~om ~v~ by ~ 5e~ iaclu~ng ~t no; ]imit~ to th~ aavlso~ ci~ul~ liana ia ~ ~nt FAA Advi~ Ci~ul~ for AlP purest,, t~md 7t1~ m~d bmladed in this R~L ~d in ~¢~nc~ with a~li~ble state polici~ ~nd~. ~d s~ific~oaa Relocation and Real PreFeety Acqublflon. (I) It ~11 ~ ~i~ in a~i~g ~ ~, ~ ~ ~ate~ ex~nt p~bl~ under S~ la% hy ~ 1~ ~quisifion ~]icies in Sub~ H o[' 4g CFR P~ 24 m~d will pay or ~imba~ ~ o~ ~or n~ ~s ~ ~i~d ia S~ B. (2) It will pm~ a ~1~ ~;~ce pm~ offeEng ~ ~ ~m~ m Su~ c ~ f~r ~d ~t~le ~l~i~ ~y~ ~d ~is~;~ ~ ~k~ ~s a, ~ui~d in Stlh~a D and E of 49 CFR P~ 24, (~) It will ~ke availabl~ wi~ a ~a~le ~ of~ ~or m dlspl~L c~p~ble ~p~nt d~llinD to ~spl~ ~ ia ao~;~ wi~ 8ubp~ g of 49 C~ P~ 24. Acee~ By latereil3, Buses, The aiq~fl ovmer or operttor will permit, to the maximum extent practicable, mtercity buses or other raudes of trampofluti0fl to lave a.c,/:ess lc, the ahlX~ however, il 'has au obligation to iq. md spec'ia] thcilifies far inte~eily hu~'o.~ or for o~hcr modes of u'an~rmtlc~. Dl~advant#g~ ~udne~s En~e~rl,t~. TI~.a ~i~* ~hall nol di~mimte on tM basin of~e, coloL mtio~ ~ or sex ~ ~ ~ ~ ~ ~ ~T-~d ~ or ~ ~c ~ficn of iB DBE pm~'mz or ~ ~ui~ 0f49 C.~ PaR ~6. ~ R~cipicrlL ~all ~ ~ll n~ und mi~ni~l~ slep~ under 49 CFR Pa~ 26 to cns~ ~n distinction in ~ awmd ~d a~i~smfi~ of ~T~si_~ C~r ~C rceipi~t'S DBE pm~, ~ requital by 49 CFR P~ 26, ~d ~ ~mved by ~'l', is inm~rated by mfe~m ia ~s ~m~k lmpl~atinn nr~is pm~ is a legal ehli~fion and faitum to ca~ oat it~ ~ a~l[ ~ m~d as a v~lafi~ of ~a a~t_ U~a mfifimfim m ~e ~[~t of i~ f~[~ m c~ out i~ appmv~ pmgm, ~ Dep~nt my im~ ~iom m pmvi~ ~rm~r ~t 26 m~d nmy, in app~al~ ~, ~fer the maer ~r ~o~t under 18 U.S.C. }~1 a~ the ~ Fraud Ovil ~es Ant of 1986 (31 U.S.C. 380[). Page 22 of 27 CURRENT FAA ADVISORY CIRCULARS FOR AIP/PFC PROJECTS Th~ following apply £o both ALP a,ld PFC Proj,'cts NUMBER 70/7460-l.I 15015000-13 150/5 IUU-14C [50/5200-30A, C~G 1 ~ 2 150/5200-33 15~21~B 150/521 150I~21 ¢13 A ~50I~ZI~I4A 150/521~15 1501521~[g 150t521~19 150152204B 15015220-10B 1 $ff/5220-13B 15ff/5220-16~ [ 5ff522~ I ?A 156/5220-1 150/5220-19 150/522~21 A 15fl/53~-1], C~G I. 2, 3,4, 5 150/5300-15 150/$32~5B ] 501532~6D 150/532~12C ] 501532~14 ] 5015320-16 150/53254A. CHG 150/5340-1G I50/534~C, CHG i ~ 2 150/5340-5~, CHG ] 150~534~14B. CI'IG 1 & 2 15~534~-18C. CIIG 150/534~19 150153~21 t 50/534~23~ 150/534~24~ CHG 1 I 150/5345-3D 150/~345-5A 150/5345-7D, CHG I 150/5345-12C 150/5345-13A 15~5345-26B, CHG 1 & 150;5345-27C 150~5345-28D, CHG I 150~5345-39B, CHG 150/~3~5~2C. CHG 1 ]50153~5~P, CHG I ] 50~5~5~5A ] 50f53~5~7A 150/5345~A 15015345-50, CHG 150[5345-5 I, 150J5345-52 [50~5345-53A, (iaclodia$ ~deadmn) tSW5360-9 [ 50/5360-12A l¥&ted on: 7./I/90 TITLE Obstruction lv~rlcing and Lighting Annmmc~rm~m of Availabili~-RTCA Inc., ~cumem RTCA-~21, Gui~ ~d Reco~nded ~qu~ &r ~ $~e Movemmt aensor~ ~hi~cl~al, ~ng, ~d Pl~ing Cmsulmt ~ims for Ai~ ~nt ~j~t~ A~ W~r Sde~ ~fl O~tio~ H~o~ Wil~ife At~ ~ o[ N~ Ai~ Pain,ag. ~ ~d Li~ of VeMcles U~ on ~ Ai~ A~ F~ ~ R~ Co~i~fions Wat~ R~e Plato. Faeilifiea. ~ ~uipmem Ai~ Fire ~d R~gue P¢~o~l Pto~¢tiw CIoflm~ Ai~ Re~e & F~fi~fing g~ati~ Buildhg De~i~ S~ for la--fig T~g of ~a ~en Enh~e~ Vision ~smm Wa~ Su~Iy Sy~ ~ ~ F~ ~d ~e P~ctlon Am~l~ W~ Ob~ g~m ~r Node&mi A~li~tions ~ S~ ~ Aig~ff Ke~cue FJrefi~ti~ T~ Facilities Huildinga ~hr S~ge and Maint~ of A~ ~9ow and I~ Con~l ~uip~nt ~ Ma~als Ai~n gnnw and le~ C~l Gui& S~=fion ~r Li~ H~ ~ Bo~ Airline P~ngers Use of Value Engm~g fm ~ng ~ihm of Aide Ai~R ray--ut ~i~ ~d Evalmfion M~t, Contrail, and Maia~ ofg~d Resi~ Ai~ ~v~t ~i~ for ~e R~ing ~7 Slantings f~ Ai~ ~l~on De~ls f~ RuRw~y C~n~rl~e Touchdo~ ~ LigMi~ Systrn~ Sg~ted C~le Ai~ M~ ~onomy ~pm~h Li~g S~ Pow~ ~ N~FAA Ai~. Lighting St~s f~ ~ Si~ ~tems T~iway Cen~rlino Lighting System Ai~ Mi~lM~oua L~t~g V/~m[ Aida 8uppl~ Wind Cmos Runway ~md T~txiway ~go Li~fing 8ys~m Air-m~mund ~o Co~l of ~o~ Lishting 8p~iCmMion fnr LR21 P~els ti~ R~m ~n~l ~' Ai~ I.i~fing Cim~t Sel~ S~tch ~i~6~ f~ ~24 U~u~ El~ C~le for Ai~ Lighting C~ui~ S~aifi~tion for Aiwa ~d Hali~ 5~i~6on f~ L~I A~ili~ ~lay C~inet ~hly for Pilot Consol ofA~ Li~ti~ Cir~ui~ g~en6~ tot L823 Plug ~ ~c~ele, C~le C~ S~fimt for Wind Cone ~mb[i¢~ ~ei~i~ Approach Palh Indictor (P~I) F~ S~ifi~ion L853, R~y ~d 'l'~iway ~n~riin~ R~tn~efl~five S~eifimfion for ~ Li~t Ba~s. Tm~ Homiag~ 5~ific~ ~ ~ction L[~ting ~quip~m g~fi~fion for Ta~way and Runw~ $1~ Li~i~t ~ach Light S~ifi~on fnr Runway ~d T~i~y Light Fix~ lsohfi~ T~f~ t~ Ai~ Li~ti~ Sp~ifmafi~ LR54, R~io Control F~uipm~nr S~if<a~ for ~mbl¢ R~way Li~m Sl~iti~tim~ for Di~Ty~ ~*nhe~ F~uipm~t G~e V~ Gli&sl~ In~ (GVG0 Plug ~ ~ of Ai~ T~nfl F~ilities ~ NonIIab Lo~fions Page 23 of 27 Page 24 of 27 ATTACHMENT C CKI~I'IIqCA'IlON REGARDING DRUG-FREE WORKPLACE R~O~NTS A. l-he grantee certifies that it will or will continue to provide a drag-free workplace by: (a) Publishing a statement notifying employees that the unlawful manut~lcture, distribution, dispensing, possession, cruse cfa control]ed substance is prohibited in the grantee's workplace and specifying thc actions that will be taken against employees for violation of such prohibition: (b) Establishing an ongoing drug-free awareness program to inform employees about- (l) The dangers of drug abuse in the workplace; (2) Thc grantee's policy of maintaining a drug-fr~.e workplaze; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (4) The penalties that may be imposed upon employees for drag abuse violations occurring in the workplace; (c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of thc statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph (a) that, as a ¢onditlou of employment under the gram, the employee will- (l) Abide by thc terms of the statement; and (2) NotiO] the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notifying the agency in writing, within ten calendar days after receiving notice under paragraph (d)(2) from an employee or otherwise receiving actual notice of suck conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notices shall include the identification number(s) of each affected grant; (0 Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with re,peet to any employee who is so convicted- (l) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requiremems of the Rehabilitation Act of 1973, as amended; or (2) Requiring such employee to participate safisPaetorily in a drag abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), Co), (c), (d), (o), and (1), B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, coonty, state, zip code} Check ?t~re ar~ork~lac.~s on file ~hat are not identified here. Signed: / Dated: T~ed N~e and Title of SpOnsor ~epresentative ' Page 25 of 27 ATTACHMEN~I D PAVEMENT MAINTENANCE MANAGEMENT PROGRAM An effective pavement maintenance management program is one that details the procedures to be followed to assnre that proper pavement maintenance, both preventative and repair, is per(brined. An airport sponsor may use any form of~nspection program it deems appropriate. The program must, as a minimum, include the following: 1. Pavement Inventory. The following must be depicted in an appropriate tbrm and level of details: a. location of all runways, taxiways, and aprons b. dimensions c. type ofpavemem d. year of construction or most recent rehabilitation For compliance with the Airpoff Improvement Program assurances, pavements that have been constructed, reconstructed, or repaired with Federal financial assistance shall be so depicted. Inspection Schedule. Detailed Inspection. A detailed inspection must be performed at least once a year. Ifa history of recorded pavement deterioration is available, i.e. Pavement Condition Index (PC1) survey as set forth in Advisory Cimular i 50/5380..6, Guidelines and Procedures for Maintenance of Airport Pavetnents, the frequency of' inspections may be extended to three years. b. Drive-by Inspection. A drive-by inspection must be performed a minimum of once per month to detect unexpected changes in the pavement condition. 3. Record Keeping. Complete information on thc findings of all dctailcd inspections and other maintenance performed mustbe recorded and kept on f~le for a minimum of five years. The types of dlstress, their locations, and remedial action, scheduled or performed, must be documented. The minimum information to be recorded is listed below. a. inspection date b_ location c. distress types d. maintenance scheduled or performed For drive-by inspectlon% the date of inspection and any maintenance performed must bc recorded. 4. Information Relrieval. An airpnt~ sponsor may use any form ef record keeping it deems appropriate, so long as the information and records produced by the pavement survey can be retrieved to provide a report to the FAA as may bc required. 5. Reference. Refer to Advls cry Circular 150/5380-6, Guidelines and Procedures for Maintenance of Airport Pavements, for specific guidelines and procedures for maintaining airport pavements and establishing an effective Page 26 of 27 maintenance program. Specific types ofdlstress, their probable causes, inspection gui&linc, and recommended methods of repair are presented~ Page 27 of 27 AGENDA INFORMATION SHEET TO: City Council AGENDA DATE: May 3, 2005 ACM/CA Dorothy Palumbo, Senior Assistant City Attorney SUBJECT Consider the adoption of an ordinance clarifying, amending and ratifying the Oil, Gas and Mineral Lease at the City &Denton Airport dated January 17, 2002; and providing an effective date. BACKGROUND Dan A. Hughes, lessee, has met with the Director of the Denton Airport and the City Attorney's office to request a clarification, amendment and ratification of the Oil, Gas and Mineral Lease at the City of Denton Airport because of rig unavailability for the drilling of horizontal wells and the unusual mount of rainfall this past year. We have previously reported to you on these negotiations and a discussion of the lease terms is provided in the City Attomey stares report. We are recommending that you approve the amended lease. Respectfully submitted: Dorothy G. PalFu~bo ~J ' ' Senior Assistant City Attorney DGP:di S:\OUtt DOCUMENTSkAgcnda Info Sheet\oS~hpot; 011 and Cms Amended Lease.DOC S:\OUR DOCUMENTS\Ordinances\05~Airport Ordinance Dan A Hughes.doc ORDINANCE NO. AN ORDINANCE CLARIFYING, AMENDING AND RATIFYING THE OIL, GAS AND MINERAL LEASE AT THE CITY OF DENTON AIRPORT DATED JANUARY 17, 2002; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Dan A. Hughes Company, "Lessee", of Oil, Gas and Mineral Lease of the City of Denton Airport, dated January 17, 2002, "Lease", and the City of Denton desire to clarify, amend and ratify the Lease to provide for the full development of the lease and to create in advance the gas units in anticipation of completion; and WHEREAS, Lessee and the City of Denton also desire to clarify, amend and ratify the lease to provide for the unavailability of horizontal drilling rigs and the unusual amount of rainfall; and WHEREAS, the City desires to authorize the City Manager to execute the Lease to clarify, amend and ratify the lease with Dan A. Hughes Company at the City of Denton Airport to provide for the above mentioned terms. NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON 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. The City Manager or his designee is hereby authorized to execute a lease in substantially same form as attached Exhibit A, clarifying, amending and ratifying the Oil, Gas and Mineral Lease at the City of Denton Airport dated January 1, 2002. SECTION 3. 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 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: EDWIN M. SNYDER, INTERIM CITY ATTORNEY BY: EXHIBIT "A" For discussion purposes only l-Draft 4-26-05 MODIFICATION, CLARIFICATION & RATIFICATION OF OIL, GAS & MINERAL LEASE City of Denton Airport STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS THAT: WHEREAS: (a) By Oil, Gas and Mineral Lease dated January 17, 2002, a Memorandum of which is recorded in Volume 5010 at page 858 of the Official Public Records of Denton County, Texas, The City of Denton leased to Enexco, Inc. the 554.14 acres of lands therein described ("Lands") on the terms and conditions therein set forth ("Lease"); (b) Dan A. Hughes Company has succeeded to all of the rights of Enexco, Inc. in and to the Lease and has drilled and completed as a horizontal well capable of producing gas in paying quantities the City of Denton - Airport #2-H Well ("#2 Well") on the Leased Premises; (c) The Lease does not specifically define "Oil Units or Gas Units" in the context of horizontal wells; and (d) The parties desire hereby to modify the Lease to provide for the development of the Leased Premises by the drilling of horizontal wells, to confirm the validity and existence of the lease as to all of such Lands; and to effect the other modifications of the Lease as hereinafter set forth: NOW THEREFORE, for the sum of ten dollars ($10.00) dollars and other good and valuable consideration paid to each of the undersigned the receipt and sufficiency of which are hereby acknowledged and the mutual covenants and benefits arising hereunder, the City of Denton acting herein by and through its City Manager, Michael A. Conduff, duly authorized by resolution to execute this Modification, Clarification and Ratification of Oil and Gas Lease, whose address is 25 East McKirmey, Denton, Texas 76201 ("Lessor"), and Dan A. Hughes Company, a sole proprietorship whose address is 208 East Houston Street, Beeville, Texas 78102 ("Lessee") have agreed to Modify, Clarify and Ratify and by these presents do hereby Modify, Clarify and Ratify the Lease in the manner hereinafter set forth. Lessor and Lessee agree that the Lease is ambiguous with respect to whether the #2 Well maintained the Lease as to all of the Lands or only the north 512 acres of the Lands. In consideration of the modification of the continuous development provisions of the Lease, the marketing covenants, increase in the royalty interests of Lessor and other covenants and benefits deriving hereunder, Lessor and Lessee have agreed to resolve such ambiguity by construing the provisions of the Lease so that the #2 Well shall have maintained and shall maintain the Lease in full force and effect as to all of the Lands for a period ending at midnight on July 1, 2005. Thereafter, such well shall maintain the Lease only as to the Gas Unit established therefore as hereinafter set forth. NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. For discussion purposes only 1-Draft 4-26-05 o t 10. I1. The Lands shall be divided into the four (4) tracts described and designated as Tracts 1-4 on the schedule attached hereto as Exhibit A. If on or before the date set forth in Section 1, Lessee commences the actual drilling of a horizontal well on the Lands, then the Lease shall continue in force and effect as to all of the Lands so long as not more than one hundred eighty (180) days elapse between the date the drilling rig used to drill a well on the Lands is released and the date the actual drilling operations commence for a subsequent well on the Lands with a drilling rig capable of drilling such well to its permitted depth. Upon the expiration of the continuous development of the Lands in accordance with the provisions of Section 3 above, this Lease shall terminate as to all Lands not then located in an Oil Unit or Gas Unit (as set forth in the Lease and modified herein for horizontal wells) upon which there is located a well producing or capable of producing oil and/or gas in paying quantities and, as to each such unit, this Lease shall terminate as to all depths below a depth of one hundred feet (100') beneath the deepest horizon then producing or capable of producing in the well for which such unit was established. With respect to a horizontal well drilled on any of Tracts 1-4, the tract upon which such well is located shall be considered as the "Oil Unit" or "Gas Unit" for such well and it shall not be necessary for the Lessee to designate such units as set forth in Section 13 of the Lease. Tract 2 shall be the Gas Unit for the #2 Well. With respect to any Lands as to which the Lease terminates or is released, Lessee shall never the less retain all of the rights granted in the Lease with respect to the use of such lands for the ingress and egress to the Lands as to which the Lease has not terminated or been released, including rights pertaining to roads and pipelines. With respect to any well completed upon the Lands as a well capable of producing oil and/or gas in paying quantities, Lessee covenants to use its best, diligent efforts to commence the sale of production from such well as promptly as is practicable. It is understood that wells drilled on Tracts 3 and 4 will require more extensive pipeline construction to commence such sales. With respect to that part of Tract 4 known as the "South Runway Extension," (being all of that part of Tract 4 lying south of the south line of the William Smith Survey, A-1188 and containing approximately 40 acres), Lessee shall attempt to secure actual production from such lands by soliciting the owners of oil and gas leases covering adjoining lands to form a pooled unit and drill a horizontal well. Lessor shall cooperate in such efforts, particularly with respect to granting the rights to pool such lands with adjoining lands. The failure to secure the development shall not affect the validity of the Lease as to Tract 4. Lessee shall not be required to solicit such development if the same would reduce the allowable for any well drilled on Tract 4 below the amount of production which can be actually produced from such well. With respect to Tracts 1, 3 and 4, the one-fifth (1/5) royalty fraction provided in the Lease shall be increased and changed to one-fourth (1/4) in ali instances where such fraction appears in the Lease. With respect to Tract 2, the one-fifth (1/5) royalty fraction shall remain unchanged. If any term or provision of this Modification conflicts with the provisions of the Lease, the terms and provisions of this Modification shall prevail and control. Modification, Clarification and Ratification Page 2 of 5 Airport Lease Hughes to City of Denton Denton County, Texas For discussion purposes only 1-DraR 4-26-05 For and in consideration recited herein, Lessor hereby ratifies, adopts and confirms the Lease as the same as modified and clarified herein and does hereby grant, lease and let unto Lessee the Lands, subject to and in accordance with the terms and provisions of the Lease, as modified and clarified in this agreement. IN WITNESS WHEREOF this instrument has been executed by each of the undersigned on the date such execution is acknowledged, but the same shall be effective for all purposes as of January 16, 2005. LESSOR CITY OF DENTON By: Michael A, Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: LESSEE DAN A. HUGItES COMPANY By:. Dan A. Hughes, sole proprietor Modification, Clarification and Ratification Page 3 of 5 Airport Lease Hughes to City of Denton Denton County, Texas For discussion purposes only l-Draft 4-26-05 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on this .. day of ,2005, by Michael A. Conduff, as the City Manager of the City of Denton, a municipality established under the laws of Texas, on behalf of said city. My commission expires: Notary Public in and for the State of Texas STATE OF TEXAS COUNTY OF BEE This instrument was acknowledged before me on this __ day of Hughes, owner of Dan A. Hughes Company, a sole proprietorship. ,2005, by Dan A. My commission expires: Notary Public in and for the State of Texas Modification, Clarification and Ratification Page 4 of 5 Airport Lease Hughes to City of Denton Denton County, Texas For discussion purposes only 1-Draft 4-26-05 EXHIBIT A Attached to the Modification, Clarification and Ratification of Oil, Gas & Mineral Lease Insert description of Tracts 1-4 and attach plat depicting the same Page 5 of 5 Modification, Clarification and Ratification Airport Lease Hughes to City of Denton Denton County, Texas AGENDA INFORMATION SHEET AGENDA DATE: May 3, 2005 DEPARTMENT: Fire ACM: Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an Ordinance approving a Statement of Agreement between the City of Denton and the American Red Cross - Dallas Area Chapter for mutual assistance of catastrophic events, emergencies or disasters; and providing for an effective date. BACKGROUND This proposed Statement of Agreement between the City of Denton and the American Red Cross - Dallas Area Chapter will allow both entities to cooperate in a manner as to provide optimal service to the Citizens of Denton during disaster situations. The City of Denton and the American Red Cross - Dallas Area Chapter agree to cooperate in the areas of emergency planning, emergency preparedness and emergency response and recovery. Among primary measures outlined in the agreement, the Red Cross will provide a liaison to the City Emergency Operations Center or other command post, provide emergency mass care (including public shelters), share damage assessment information and provide direct assistance to effected individuals and families. It is understood that the assistance requested or furnished may be refused, limited or recalled at the sold discretion of the party from whom assistance is requested or furnished. OPTIONS Approve ordinance or deny ordinance. RECOMMENDATION Staff recommends the approval of the proposed ordinance. ESTIMATED SCHEDULE OF PROJECT N/A PRIOR ACTION/REVIEW (Council, Boards, Commissions) N/A FISCAL INFORMATION All Red Cross disaster relief assistance is an outright gram made possible by volumary donations of time and money from the American people. Repaymem for services provided by the Red Cross to the City of Denton or its Citizens is not required or requested. No Red Cross disaster supplies are sold. Respectfully submitted: Ross Chadwick Fire Chief-Emergency Management Coordinator S:\OUR DOCUMENTS\Ordinanees\05XAmerican Red Cross SOA 2005.doc ORDINANCE NO. AN ORDINANCE APPROVING A STATEMENT OF AGREEMENT BETWEEN THE CITY OF DENTON AND THE AMERICAN R_ED CROSS - DALLAS AREA CHAPTER FOR MUTUAL ASSISTANCE DURING TIMES OF CATASTROPHIC EVENTS, EMERGENCIES OR DISASTERS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas finds that the identification of potential hazards and the mitigation of their effects must be an on-going concern of the City if the lives and property of the populace are to be protected; and WHEREAS, the City Council hereby declares that the preparation of a mutual-aid- agreement, and the means for its implementation, for the protection of lives and property in the City of Denton from natural or man_made disasters or threat thereof is immediately essential; and WHEREAS, the City Council further finds that in times of disasters which may imperil the safety of the inhabitants of the City, or their property, it becomes necessary to effectuate and place into operation preconceived plans, regulations, and preparations with a minimum of delay; and WHEREAS, the City Council £mds that it is in the public interest to provide for the necessary powers and authority to provide prompt and effective use of all City resources to prepare for, respond to, and recover from disasters that are likely to affect the public health, welfare and safety; and WHEREAS, in times of disasters and emergencies there is an urgent need for the immediate enactment of mutual-aid-agreements to protect the public health, welfare, and safety; and WHEREAS, in accordance with Section 9-7 of the City Code, the Mayor as Director of Emergency and Disaster Services hereby recommends a Mutual-Aid-Agreement with American Red Cross - Dallas Area Chapter - for approval; and WHEREAS, the City Council finds, therefore, that the approval of a Statement of Agreement with the American Red Cross - Dallas Area Chapter is necessary and in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The Statement of Agreement with the American Red Cross - Dallas Area Chapter is hereby approved and the Mayor, as Director of Emergency and Disaster Services, is hereby authorized and directed to execute, the Statement of Agreement between the City of S:\OUR DOCUMENTS~,Ordinanees\05L~nerican Red Cross SOA 2005.doc Denton and American Red Cross - Dallas Area Chapter for mutual assistance during times of catastrophic events, emergencies or disasters under the terms and conditions contained in the Agreement which is attached hereto and made a part hereof. 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: EDWIN M. SNYDER, INTERIM CITY ATTORNEY Page 2 of 2 STATEMENT OF AGREEMENT BETWEEN THE AMERICAN RED CROSS - DALLAS AREA CHAPTER THE CITY.OF DENTON Purpose This statement defines methods of cooperation and coordination between the American Red Cross - Dallas Area Chapter, and the City of Denton, relative to disaster preparedness and disaster operations. II. Mutual Assistance in Public Emergency In the event of occurrence of a natural, technological or terrorist incident, or emergency, or disaster as these terms are defined in Chapter 9 of the City Code, "Emergency and Disaster Planning and Response," which cannot be met with the usual resources and facilities of the parties hereto, the City and the Red Cross shall agree, upon request of the other, to furnish the assistance provided for herein. Notwithstanding any other provision setting forth the assistance to be provided, the extent of ability to provide such assistance shall be determined solely by the party fi.om whom assistance is requested or furnished. It is understood that the assistance requested or furnished may be refused, limited or recalled at the sole discretion of the party from whom assistance is requested or furnished. III. Responsibilities The City of Denton: The City of Denton, (herein referred to as The City) will endeavor to protect the public and to preserve life and property through specific disaster preparedness activities and by conducting and coordinating actual disaster relief operations. The American Red Cross - Dallas Area Chapter: Through its Emergency Planning; Emergency Preparedness and Emergency Response and Recovery programs, the American Red Cross - Dallas Area Chapter, (herein referred to as Red Cross) maintains its capability to take immediate action to provide emergency assistance to any number of people affected by,. and emergency workers involved in, disaster or the threat of disaster. Individuals and families who suffer from the effects of disaster may have immediate disaster-caused needs and/or may lack sufficient resources to begin their recovery phase. In times of disaster, the needs of people can be identified by: · Emergency Assistance - those of such an urgent need that they must be met immediately. · Additional Assistance - those that can be met after appropriate planning has · been undertaken by the family and the Red Cross. In conducting its disaster rehef services, the Red Cross represents all people and extends aid in an equitable and impartial manner. All Red Cross .disaster relief assistance is an outright grant made possible by voluntary donations of time and money from the American people. Page t of 7 Disaster victims are responsible for their own recovery, and Red Cross assistance is provided to facilitate and support disaster victims in their recovery. Assistance is based upon addressing disaster-caused need according to the following criteria: · Resumption of more normal living · Verification of immediate need · Identification · Disaster-caused damage The Red Cross disaster relief service is dehvered in three phases (where applicable): · Emergency Mass Care Response - The period where shelters are opened for evacuees, mass feeding is provided, damage assessments are conducted, and bulk distribution of relief supplies are provided for disaster victims. · Emergency Assistance Response - The period when individuals and families received Red Cross assistance on an individual basis to address their disaster- caused emergency needs. · Additional Assistance Response - When government assistance and other resources are not available to an individual or family, or when such assistance is not adequate to meet disaster-caused needs, the Red Cross may partner with other agencies to provide additional assistance on an individual case-work basis. Assistance may include disaster relief funds made available through an American Red Cross Client Assistance Card (cash enabled debit card), and/or Disbursing Order (similar to Purchase Order) for food, clothing, temporary shelter, cooking and eating utensils, bedding supplies, cleaning supplies, linens, and other basic needs. In doing so, the Red Cross utilizes ail available resources, including those of the family, if they can be used without causing undue hardship; the resources of federal, state, and local government, and private agencies' disaster relief capabilities, in addition to the resources of the Red Cross. The Red Cross provides disaster Welfare inquiries from relatives outside the disaster area, inquiring about their family members that may have been affected by disaster. The Red Cross refers families to available governmental resources and, if necessary, assists families in making application for such aid. Whenever possible, Red Cross aSsistance is channeled through normal commercial establishments in the community in an effort to help restore the disrupted local economy. Alt Red Cross help to the disaster victims is an outright grant. No repayment is required or requested. No Red Cross disaster supplies are sold. Page 2 of 7 IV. Legal Authorities 1. The City conducts authorities: its disaster preparedness and operations activities under these i Texas Disaster Act of 1975, 64th Legislature, Article 6889-7 Vernon's Texas Civil Statutes, now Chapter 418 of the Texas Govemment Code. Robert T. Stafford Disaster Relief and Emergency amended) 42 U.S.C. 5121. Assistance Act, (as Texas Government Code, Chapter 418 (Emergency Management) and Chapter 421 (The Homeland Security Act of 2003). D. City Ordinances (if any): City of Denton Code of Ordinances, Chapter 9. E. The City's home rule process and any other applicable laws. The Red Cross conducts its Emergency Planning, Emergency Preparedness, and Emergency Response and Recovery operations activities under these authorities: In providing disaster relief, the Red Cross has both a legal and a moral mandate that it has neither the authority nor the right to surrender. The Red Cross has both the power and the duty to act in disaster, and our prompt action is clearly expected and supported by the public. Red Cross authority to perform disaster services was formalized when the organization was chartered by the Congress of the United States in 1905. Among other provisions, this charter charged the Red Cross-- to continue and carry on a system of national and international relief in time of peace and apply the same in mitigating the suffering caused by pestilence, famine, fire, floods, and other great national calamities, and to devise and carry on measures for preventing the same. -U.S. Congress, Act of January 5, 1905, as amended, 36 U.S.C. Red Cross authority to provide dis,aster services was reaffirmed in federal law in the 1974 Disaster Relief Act (Public Law 93-288) and in 1988 in the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Methods of Cooperation 1. Emergency Planning, Emergency Preparedness, Em..ergency Response and Recovery. In order to assure continuity in disaster planning, disaster preparedness, emergency response readiness, and any other Red Cross program or service, the Red Cross will seek representation from the City for its Community Page 3 of 7 Liaison Committee (usually the City Emergency Management Coordinator or designee). Likewise, the City will seek Red Cross representation on its disaster planning body. The Red Cross and the City will share their written disaster plans. The Red Cross will provide to the~ City a digital/electronic copy of it's most current' Disaster Response Plan and it's annexes. The digital/electronic copy will be mailed to the Emergency Management Coordinator and made available in Adobe Acrobat PDF format on CD. The citY agrees to admit properly identified Red Cross personnel into the disaster impact area to provide Red Cross services. Government Emergency Management Liaison A. During disaster operations, the City will provide space within its Emergency Operations Center for a Red Cross Government Emergency Management Liaison. The Red Cross will assign a Government Emergency Management Liaison to the City's Emergency Operations Center or'other command post. Specifically, the Government Emergency Management Liaison will perform as the Red Cross Mass Care, Shelter, Human Services Liaison for the City, and other applicable Red Cross activities during EOC Operations. During potential or actual Incidents of National Significance, the National Response Plan - Emergency Support Function #6 provides further detail on American Red Cross primary agency roles and responsibilities. Emergency Mass Care Emergency Mass Care - This service involves the coordination of non-medical mass care services to include sheltering of victims, organizing feeding operations, providing emergency first aid stations at designated Red Cross Service Delivery Sites, cOllecting and providing information on victims to family members (Disaster Welfare Inquiry), and coordinating bulk distribution o f emergency relief items. The City and the Red CrOss will cooperatively conduct and maintain an inventory of all buildings which could potentially serve as mass care shelters. The City will identify and document fac,bt, es (shelter list) that are preferred mass care shelter sites (Parks and Recreation Centers, Schools, etc..i). The Red Cross and The City will complete a Facility Use Agreement for the Use as Mass Care Shelters. This agreement specifically identifies the owner/operator of all city owned facilities identified as available Red Cross shelter facilities. The agreement will also identify facility use responsibilities, utility costs responsibilities, and other aspects of facility usage. At the time of activation and occupation of a shelter facility, a Red Cross volunteer or employee wil! complete a "Disaster - Form 6506 Building Inspection Checklist". The checklist is to be completed before Red Cross assumes the premise for the opening, operation of a mass care shelter. Prior to closing and vacating the Page 4 of 7 premise after operation as mass care shelter, a Red Cross employee or volunteer will complete "Disaster-Form 6556 Release of Facility'. This form is completed during the clOsing procedures just prior to vacating the facility. The City and the Red Cross will, during preparedness activities, also complete a Shelter Survey for each identified facility included in the Facility Use Agreement for the Use as Mass Care Shelters (a physical site visit by a Red Cross representative to complete a survey document about each facility). When the need for mass care shelters occur, the City and the Red Crosg cooperatively designate one or more mass care shelter facilities based upon anticipated need. The Red Cross w/Il retain administrative and financial control of the mass care activities it provides. The Red Cross will assign a shelter manager to each mass care shelter for this purpose and will assume responsibility for the cost of providing Red Cross shelter and feeding operations. Disaster Damage Assessment AL The Red Cross and the City agree to exchange and share damage assessment information and to conduct assessments cooperatively to the extent possible. The City agrees to admitl properly identified Red Cross personnel into the disaster impact areas for the purpose of conducting Red Cross disaster damage assessments. ~ Direct Assistance to Families The Red Cross provides direct assistance to disaster victims as defined in Section III Responsibilities, Paragraph 2 above. In carrying out any relief activities, the Red Cross will exercise administrative and financial control over its own operations. BL The City will assist the Red Cross in establishing disaster service centers (if Red Cross deems it necessary to open community disaster service centers during or after a disaster) by providing use of City owned facilities as available and requested. Fund Raising: The Red Cross may initiate fund raising activities in the affected areas in accordance with existing fund raising ordinances and agreements. Recurrent Local Disasters The City will notify the Red Cross (refer to Section V-8 Notification and Contact) of recurrent local disasters (such as house fires, multi-unit apartment fires, or other natural occurring or man made disasters, etc...) where families or individual(s) will require immediate assistance. Page 5 of 7 10. 11. 12. bo The Red Cross will endeavor to dispatch its Disaster Action Team to recurrent local disasters within two (2) hours of incident notification to meet the emergency needs of the affected families or individual(s). The Red Cross will, upon request, provide emergency canteen services to firefighters, and other emergency workers at the scene of recurrent local emergencies or disasters (includes extended law enforcement managed emergencies). Notification and Contact,'Modification and Cancellation Reference Appendix A which is attached to and incorporated herein by reference. Coordination and Planning of Assistance under Agreement The City hereby authorizes and directs its Director of Emergency and Disaster Services and his or her staff, and Red Cross hereby authorizes and directs its designated officers or employee, .to mutually plan for, establish, and coordinate the details of implementing and furnishing the services and assistance agreed to be provided in the Agreement. No Duty Imposed This Agreement shall not be construed as or deemed to be an agreement for the benefit of any third party or parties. Any performance undertaken pursuant to this Agreement shall be completed as a part of the governmental function of providing emergency services to the public in general and this Agreement is not meant to and shall not be construed as imposing any duty, public or private, on any party hereto to provide any assistance, aid, or care to the other party or to any third party. Mutual Responsibility and Preservation of Defenses The City agrees to and accepts full responsibility for the acts, negligence and/or omissions of all City's employees and agents, City's subcontractors and/or contract laborers in performing services under this Agreement with the Red Cross. The Red Cross agrees to and accepts full responsibility for acts, negligence, and/or omissions of all Red Cross's employees and agents, Red Cross's subcontractors and/or contract laborers performing services under this Agreement. It is further agreed that if a claim or liability should arise from the joint or concurring negligence of both parties hereto, it shall be borne by them comparatively in accordance with the laws of the State of Texas. This paragraph shall not be construed as a waiver by either party of any defenses available to it under the laws of the State of Texas including, without limitations, the defense of governmental immunity and the limitations of liability imposed during times of disaster and emergency by Chapter 9 of the City Code, Chapter 418 of the Government Code and other applicable laws. Term, Amendment or Cancellation of Agreement This Agreement shall continue in effect until terminated by either party hereto, by such party giving the other party thirty days written notice (see Appendix A - Page 6 of 7 " Modification and Cancellation contact information). This Agreement's Appendix A shall be reviewed annually and modified as appropriate. . 13. Texas Law Controls This Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto 'shall be governed by the laws of the State of Texas. Venue of any litigation or dispute involv/ng this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. 14. Severabilit¥ In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties that the remaining portions shall remain valid and in full force and effect to the extent possible. Endorsement The undersigned officers hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto and each party hereby certifies to the other that the necessary ordinances, resolutions, orders 'or other actions extending said authority have been duly passed and are now in full force and effect and, by their signatures hereto, bind themselves to the faithful performance of this Agreement. City of Denton, Texas American Red Cross Dallas Area Chapter By: Euline Brock Mayor Date Stephen Vetrano Chief Operating Officer American Red Cross Dallas Area Chapter Attest: Jennifer Walters, City Secretary Date Approved as to leg~_l, form/; Herbert L. Prouty, City P~omey Date ~- ~0'~ 0~- Dallas Area Chapter Date Date Page 7 of 7 STATEMENT OF AGREEMENT BETWEEN THE AMERICAN RED CROSS- DALLAS AREA CHAPTER THE CITY OF DENTON Appendix A Notification and Contact, Modification and Cancellation Notification and Contacts The City will alert the American Red Cross - Dallas Area Chapter Denton Branch promptly of actual or potential disasters during normal business hours at: 972-219-4860 The City will alert the American Red Cross - Dallas Area Chapter promptly of actual or potential disasters after normal business hours at: (214) 678-4800, or (877) 505-4800 3. The Red Cross may contact the City's Emergency Operations Center (EOC) at 940-349-8836. A. The City Emergency Management Coordinator (EMC) may be reached during normal business hours at 940-349-8836. B. Alter normal business hours, the City Emergency Management Coordinator (EMC) may be reached at (Cell) 940-391-0906. · II. Modification and Cancellation This Agreement shall be reviewed annually and modified (requiring a revised agreement document to be agreed upon and endorsed) as appropriate. The Agreement may be cancelled by either party through written notice to the other by notifying the following persons at the following addresses: The City Michael A. Conduff City Manager City of Denton 2t 5 East McKinney Denton, TX 76201 The Red Cross Martin A. Nerren Director, Emergency Planning American Red Cross - Dallas Area Chapter 4800 Harry Hines Blvd. Dallas, TX. 75235 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 3, 2005 Electric Utility Howard Martin, 349-8232 SUBJECT Consider adoption of an ordinance of the City Council of the City of DeNon, Texas authorizing the City Manager to execute a Professional Services Agreement with R. J. Covington Consulting, LLC for consulting services relating to Task Order No. 05-C; providing for services related to Determination of Denton Municipal Electric's Future Requirements for Wholesale Electric Supply and Related Services; to Solicit and Consider Alternatives to Replace the Existing Transition Power Agreement; and to Issue a Request for Proposals for Purchased Power by Denton Municipal Electric; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval by a vote of 6-0. BACKGROUND DME uses two sources of energy to serve its customers. The first source is its 21.3% share of the output of the TMPA Gibbons Creek coal fired power plaN. Gibbons Creek supplied approximately 56.5% of DME's total energy needs in FY04. The remainder of DME's energy requirements was supplied through the existing Transition Power Agreement with Constellation. The TPA also provides the energy scheduling and settlement functions required by the Electric Reliability Council of Texas (ERCOT). The TPA and the TMPA agreemeNs are the two most critical DME agreements. DME FY04 expenditures under the TPA represented 40% of DME's total FY04 expenditures. The TPA expires in June of 2006. The potential of major changes in the structure of the electric wholesale market in ERCOT will make the power purchasing/scheduling/settlemeN agreemeN(s) that replace the TPA even more critical to DME's ability to remain competitive. The new market design that is being discussed in ERCOT will create a much more volatile and risky energy market and require sophisticated short-term modeling and hedging activities in order to be successful. Therefore, the process of choosing a vendor or vendors to provide those products and services is an extremely important effort. This process must be very thorough and will require a great deal of effort and expertise. Analysis of various options will require careful modeling and consideration of both quaNitative and qualitative areas. In order to minimize expenditures, DME maintains a very small administrative staff that manages day-to-day activities and supervises outsourced activities on an as-needed basis. That small staff is augmented with special expertise, through outsourcing, as needed to accomplish specialized tasks. Development and issuance of an RFP for a replacement of the TPA and negotiation of a new agreement(s) is such a specialized task. The attached Task Order No. 05-C describes the services that will be provided by R. J. Covington Consulting, LLC to support procurement of a replacement for the TPA. R.J. Covington Consulting, LLC provided analysis and negotiation support for the initial TPA procurement. One of principals assigned to work on this Task Order was part of the TPA negotiation team, which means he already has a through knowledge of DME's system load and technical requirements. Both principals assigned to the project have extensive backgrounds in the private Texas natural gas and wholesale generation businesses as well as the current and proposed operating protocols of ERCOT. In addition, since the deregulation of the wholesale electric energy market, they have managed several procurement processes for Texas aggregation groups and another municipal electric utility. The support staff for this project worked on the DME Transmission Cost of Service filings, which means they have a detailed knowledge of DME's financial structure. OPTIONS 1. Approve Task Order No. 05-C. 2. Attempt to perform the tasks with internal personnel. RECOMMENDATIONS Approve Task Order 05-C with R. J. Covington Consulting, LLC. PRIOR ACTION/REVIEW (Council, Boards, Commission) The PUB Utilities Board voted approval of Task Order 05-C with R. J. Covington Consulting, LLC at their April 25, 2005 meeting by a vote of 6 to 0 with 6 members present. FISCAL INFORMATION Task Order Cost not to exceed $94,400 EXHIBITS 1. Ordinance 2. Task Order No. 05-C 3. Professional Services Agreement 4. PUB Minutes Respectfully submitted: Sharon Mays Director of Electric Utilities CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING MINUTES APRIL 25, 2005 DRAFT After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, April 25, 2005 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, George Hopkins, Charldean Newell Dick Smith EX OFFICIO MEMBERS Mike Conduff, City Manager Howard Martin, ACM/Utilities Excused: Phil Gallivan ITEMS FOR INDIVIDUAL CONSIDERATION: 3) Consider and recommend approval of Task Order No. 05-C with R. J. Covington Consulting, LLC, Austin, Texas, for support in the development, analysis, and negotiation of a new contract(s) for provision of DME's energy requirements (above the energy available from Gibbons Creek) and scheduling and settlement services for all DME energy resources, in an amount not to exceed $94,400. Sharon Mays, Director of Electric Utility presented this item. DME uses two sources of energy to serve its customers. The first source is its 21.3% share of the output of the TMPA Gibbons Creek coal fired power plant. Gibbons Creek supplied approximately 56.5% of DME's total energy needs in FY04. The remainder of DME's energy requirements was supplied through the existing Transition Power Agreement with Constellation. The TPA also provides the energy scheduling and settlement functions required by the Electric Reliability Council of Texas (ERCOT). The TPA and the TMPA agreements are the two most critical DME agreements. DME FY04 expenditures under the TPA represented 40% of DME's total FY04 expenditures. The TPA expires in June of 2006. Board Member George Hopkins moved to recommend approval of Task Order No. 05-C with R.J. Covington Consulting LLC, with a second from Board Member Dick Smith. The motion was approved by a vote of 6-0. Page 1 of 1 EXHIBIT 4 ORDINANCE NO. 2005- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH R. J. COVINGTON CONSULTING, LLC FOR CONSULTING SERVICES RELATING TO TASK ORDER NO. 05-C; PROVIDING FOR SERVICES RELATED TO DETERMINATION OF DENTON MUNICIPAL ELECTRIC'S FUTURE REQUIREMENTS FOR WHOLESALE ELECTRIC SUPPLY AND RELATED SERVICES; TO SOLICIT AND CONSIDER ALTERNATIVES TO REPLACE THE EXISTING TRANSITION POWER AGREEMENT; AND TO ISSUE A REQUEST FOR PROPOSALS FOR PURCHASED POWER BY DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public imerest to engage the firm of R. J. Covington Consulting, LLC of Austin, Texas ("Covington"), to provide professional consulting services to the City relating to Task Order No. 05-C; which includes, without limitation, services providing an evaluation of options to meet Denton Municipal Electric's future requirements for wholesale electric supply and related services, and to solicit and consider alternatives to replace the current existing Transition Power Agreement; also possibly culminating in the issuance of a Request for Proposals ("RFP"); and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-described specialized professional services, and that limited City staff cannot adequately perform the services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas 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 on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, Covington has represented DME continuously and ably over the last eight (8) years, and has proven to be a valuable, reliable, affordable, and competem professional resource that has expertise in, and is well-acquainted with the electric operations as well as the financial and regulatory framework of Demon Municipal Electric ("DME"), as well as its relations with the PUC and ERCOT. Covington and his staff are familiar with the characteristics, operations, and present rate structure of DME: and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the professional services, as set forth in the Professional Services Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized to execute a Professional Services Agreement with R. J. Covington Consulting, LLC of Austin, Texas, for professional consulting services relating to Task Order No. 05-C, to the City and to Denton Municipal EXHIBIT 1 Electric, in an amount of not to exceed $94,400; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference as Exhibit "A." SECTION 2: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Covington and the ability of Covington to perform the professional services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY By: S:\OUR DOCUMENTS\Ordinances\05\R J Covington Consulting LLC-DME-Ord Aprv TO 5-C-2005.doc ATTACHMENT PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON TEXAS AND R.J. COVINGTON CONSULTING, LLC TASK ORDER NO. 05-C Request for Proposals for Purchased Power This Task Order is directed at assisting Denton Municipal Electric ("DME") to perform an overall evaluation of options to meet its future requirements for wholesale electric supply and related services and to solicit and consider alternatives to replace the current Constellation Transition Power Agreement. It is anticipated that this solicitation will be accomplished by way of the issuance of a Request for Proposals ("RFP"). RJC will administer the RFP process, act as the point of contact for all prospective respondents and interested parties, and help conduct and support final negotiations for any resulting agreements. Discussion DME is currently purchasing power to serve a portion of its electric utility load obligation under a Transition Power Agreement ("TPA") with Constellation Power Source ("Constellation"). This agreement wilt terminate in June 2006. DME desires to solicit and consider alternatives to replace the current Constellation TPA as part of an overall evaluation of options to meet its future requirements for wholesale electric supply and related services. It is anticipated that this solicitation will be accomplished by way of the issuance of a Request for Proposals ("RFP"). There have been significant changes in the current market structure, an entirely new market structure proposed for the near future, an expanded range of energy product offerings, and a general increase in the level of uncertainty and risk in the electric market since DME executed its current TPA in 2001. In Task 1, RJC will work with DME to perform an overall evaluation of its resource planning process, explore the range of possible alternatives to meet the DME future load, and then fully define the desired results of the RFP process. Task 2 provides for a review of historic capacity and energy usage and to forecast future capacity and energy requirements. RJC will utilize the material provided in Task 2 to develop the RFP for Purchased Power document in Task 3. Tasks 4 and 5 will accomplish the RFP process and evaluation of all proposals submitted. RJC will work with DME management in the negotiation of a new purchased power agreement in Task 6. Following is a detailed list of services to be provided under this Task Order. EXHIBIT 2 Task 1 Task Order 05-C Request for Proposals Scope of Services Detailed Definition of Project Requirements and Deliverables 1. Review the current load forecast and underlying assumptions with DME. 2. Develop a comprehensive list of issues that should be evaluated in the resource planning and procurement process and recommend alternatives to incorporate into the RFP. 3. Define the objectives of the process, in both quantitative and qualitative terms. 4. Document the specific work products and deliverables expected from the RFP process. 5. Specify any particular products or product attributes desired in proposal responses. 6. Recommend the allowed timeframe within which to complete the process. 7. Finalize the basis for selection of qualified respondents. Task 2 Task 3 Information Gathering I. Assemble data on energy and capacity requirements for the last five years. 2. Document hourly dispatched volumes from DME owned resources for the last five years and future planned outages forecasted outputs. 3. Update long-term energy and capacity resource plan. 4. Summarize the DME projected future capacity and energy needs for presentation in the RFP. 5. Assemble required electric system information needed for the RFP for Purchased Power. Development of RFP for Purchased Power 1. Draft a description of the DME plans for the future operations of the utility. 2. Develop a draft version of the RFP for review by DME. 3. Finalize the RFP document incorporating the DME comments and edits. 4. Assist DME to obtain necessary approvals for issuance of the RFP. Task 4 1. Issuance and Administration of the RFP for Purchased Power Develop a list of potential recipients for direct distribution of the RFP and recommend other ways to alert highly qualified potential respondents. 2. Distribute the final RFP to approved recipients. 3. Serve as the single point of contact for all questions, data requests, and other potential issues raised by potentia[ respondents. 4. Accept delivery of responses to the RFP, and perform any required follow up or secondary communication with respondents. 2 of 4 Task Order 05-C Request for Proposals Task 5 Analysis of RFP for Purchased Power responses 1. Develop a spreadsheet model to evaluate and rank quantitative features of all responses. 2. Evaluate all responses to determine if they meet the conforming requirements of the RFP. 3. Model all bids to determine which responses offer the best pricing and options for DME. Responses will be evaluated regarding services offered, quality of these services, and pricing. All proposal evaluations will consider and quantify, when possible, additional costs such as transmission costs, the potential for congestion management charges, and supplying ancillary services. 4. Rank all proposals and measure against each other and submit to DME. Task 6 Negotiation of New Purchased Power Agreement I. Determine a shortlist of parties with which to initiate detailed discussions and negotiations for a new purchase power agreement. 2. Conduct and support negotiations to finalize and execute purchased power agreement(s) with one or more chosen parties. Budget The not-to-exceed amount for the above scope of services for both labor and out-of-pocket expenses is $94,400. This amount will not be exceeded without prior written approval of the City of Denton, Texas. This scope of services budget assumes that RJC acts as the point of contact for all prospective respondents, and that the RFP is submitted to a selected list of qualified vendors (as approved by DME) rather than widely distributed throughout industry channels. The budget estimate also assumes that there are 6-8 responsive proposals submitted by well-qualified parties, and that final negotiations would be with only one selected preferred party (involvement of the next one or two most competitive parties would be maintained until a final agreement is certain). RJC will bill this Task Order monthly, with supporting documentation of activities performed. The work being performed will be under the supervision of the Director of Electric Utilities, and may be modified at any time upon appropriate notice to RJC. EXECUTED this the day of .,2005. 3 of 4 AUTHORiZED BY: CITY OF DENTON, TEXAS A Texas Municipal Corporation Task Order 05-C Request for Proposals ACCEPTED BY: R.J. COVINGTON CONSULTING, LLC By : MICHAEL A. CONDUFF CITY MANAGER Dated: By: R.J. COVINGTO~ Its President Dated: /,¢ffJ ATTEST: JENNIFER WALTERS, City Secretary By: APPROVED AS TO LEGAL FORM: ED SNYDER, INTERIM CITY ATTORNEY S:\OUR DOCUMENTS\Contracts\05\RJC TO 05 C RFP Purchased Power doc 4 of 4 STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES PERTAINING TO DENTON MUNICIPAL ELECTRIC THIS AGREEMENT is made and entered into on the __ day of ,2005, by and between the City of Denton, Texas, a Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Texas 76201 ("CITY"); and R. J. COVINGTON CONSULTiNG, LLC, a Texas Limited Liability Corporation, with its principal office at 11044 Research Boulevard, Suite A-325, Austin, Texas 78759, hereafter "COVINGTON"; acting herein by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants, promises and agreements herein contained, the CITY and COVINGTON do hereby AGREE as follows: ARTICI.F~ t EMPLOYMENT OF CONSULTANT The CITY hereby contracts with COVINGTON, as an independent contractor, and COVINGTON hereby agrees to perform the services herein in connection with the Scope of Services as stated in the Articles to follow, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. ~RTICLR 11 SCOPE OF SERVICES A. COVINGTON shall provide to the CITY professional consulting services pertaining to assisting Denton Municipal Electric in performing an overall evaluation of options to meet its future requirements for wholesale electric supply and related services and to solicit and consider alternatives to replace the current Constellation Transition Power Agreement. tt is anticipated that this solicitation will be accomplished by way of the issuance of a Request for Proposals ("RFP"). COVINGTON agrees to perform those services and tasks more particularly and specifically described in Task Order No. 05-C attached hereto and incorporated herewith by reference. B. To consult with the City Manager, Assistant City Manager/Utilities, the Director of Electric Utilities, the Utility Attorney, and any other designated administrative personnel regarding any and all aspects of the services to be performed pursuant to this Agreement. ARTICLE lIl PERIOD OF SERVICE This Agreement shall become effective on the date this Agreement is approved and upon the issuance of a notice to proceed by Denton Municipal Electric ("DME"). The termination date of this Agreement shal[ be upon the earliest to occur of the following events: completion of the work EXHIBIT 3 described herein and in the attached Task Order No. 05-C; or upon the depletion and exhaustion of the $94,400 not to exceed amount provided for herein; or upon fifteen (15) day's written notice to terminate, issued by the Director of Electric Utilities, DME. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. COVINGTON shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its Director of Electric Utilities. COMPENSATION COMPENSATION TERMS: "Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense, overnight courier, photocopy expense, transportation, travel, communications, subsistence and lodging away fi:om home and similar incidental expenses reasonably incurred in coimection with that assignment. BILLING AND PAYMENT: 1. For and in consideration of the professional services to be performed by COVINGTON herein, the CITY' agrees to pay COVINGTON, a total fee, including reimbursement for direct non-labor expense, not to exceed $94,400 for those services described in Task Order No. 05- C. 2. The fee for the services described in this Agreement to be performed by COVINGTON are to be billed the rates as set forth in Exhibit "A" attached hereto and incorporated herewith by reference. Billing shall be reported in minimum one-quarter (1/4) hour increments. 3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly statements rendered to the CITY through its Director of Electric Utilities. The fee bills as submitted, shall be allowed and approved by the Director of Electric Utilities. However, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. 4. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory as reasonably determined by the City Manager or the Director of Electric Utilities, or which is not submitted in compliance with the terms of this Agreemer~t. The City shall not be required to make any payments to COVINGTON when COVINGTON is in default under this Agreement. 5. It is specifically understood and agreed that COVINGTON shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CtTY for any charge, expense or reimbursement above the maximum not-to-exceed fee as stated, without first having obtained written authorization from the CITY. C. PAYMENT If the CITY fails to make payments due COVINGTON for services and expenses within forty (40) days after receipt of COVINGTON'S undisputed statement thereof, the amounts due COVINGTON will be increased by the rate of one percent (1%) per month from the said forty (40th) day, and in addition, COVINGTON may, after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until COVINGTON has been paid in full all amotmts due for services, expenses and charges provided. However, nothing herein shall require the CITY to pay the late charge of one percent (1%) set forth herein if the CITY reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such defect. OBSERVATION AND REVIEW OF THE WORK COVINGTON will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in his work or the work of any subconsultants performed hereunder. ARTICLE VI OWNERSHIP OF DOCUMENTS All documents, analyses and other data prepared by COVINGTON under this Agreement ("Work Products") are instruments of service and are and shall remain the property of CITY. COVINGTON shall have the right to make and retain copies and use all Work Products; provided, however, the use shall be limited to the intended use for which the services and Work Products are provided under this Agreement. COVINGTON may use and may copyright certain non-sensitive Work Products as property of COVINGTON; provided that prior written approval is obtained from CITY, whose approval shall not be unreasonably withheld, and providing that copywriting will not restrict CITY'S right to retain or make copies of the Work Products for its information, reference and use on the Project or services under the Agreement. The Work Products shall not be changed or used for purposes other than those set forth in this Agreement without the prior written approval of COVINGTON. If CITY releases the Work Products to a third party without COVINGTON'S prior written consent, or changes or uses the Work Products other than as intended hereunder, CITY does so at its sole risk and discretion and COVINGTON shall not be liable for any claims or damages resulting from or connected with the release or any third party's use of the Work Products. ARTIC! ~E VII INDEPENDENT CONTRACTOR COVINGTON shall provide services to the CITY as an independent contractor, not as an employee of the CITY. COVINGTON shall not have or claim any right arising from employee 3 status. z~RTICLE VIII INDEMNITY AGREEMENT COVINGTON shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses and expenses, including but not limited to court costs and reasonable attorney's fees incurred by the CITY, and including without limitation, damages for bodily and personal injury, death and property damage, and damage for professional malpractice resulting from the negligent acts or omissions of COVINGTON or any subconsuttants, in performance of this Agreement. COVINGTON'S liability under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as set forth in Article IX. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement and nothing herein shall waive any of the party's defenses, both at law or equity, to any claim, cause of action or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICI.E IX INSURANCE During the performance of the Services under this Agreement, COVINGTON shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an "A-" or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence, and not less than $100,000 in the aggregate. Automobile Liability Insurance with bodily injury limits of not tess than $500,000 for each person and not less than $500,000 for each accident; and with property damage limits of not less than $100,000 for each accident. Professional Liability Insurance with policy limits of not less than $1,000,000 annual aggregate. COVINGTON shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies to the extent legally possible, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days prior written notice to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of the change or cancellation, deliver substitute policies furnishing the same coverage to the CITY. ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation. No arbitration or alternate dispute resolution arising out of or relating to, this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval. ARTICLE XI LIMITATION OF LIABILITY To the extent permitted by law, the total liability of COViNGTON to CiTY for any and all claims arising out of this Agreement, whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third-party claims, shall not exceed one million dollars ($1,000,000). ARIIC2.E_XH CONSEQUENTIAL DAMAGES In no event and under no circumstances shall COVINGTON be liable to CITY for any interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any consequential, indirect or special damages. ARTtCI,E XIII PROFESSIONAL STANDARDS COVINGTON will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same degree of similar services. No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and alt implied warranties are disclaimed. ARTIC[ ,E XIV TERMiNATION OF AGREEMENT Notwithstanding any other provision of this Agreement, either party may terminate this Agreement by giving thirty (30) days advance written notice of termination to the other party. This Agreement may be terminated in whole or in pan in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be effected unless the other party is given: (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the nonperformance, and not less than ten (10) business days in which to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. If this Agreement is terminated prior to completion of the services to be provided hereunder, COVINGTON shall immediately cease all services and shall render a final bill for services to the CITY within 30 days after the date of termination. The CiTY shall pay COVINGTON for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination in accordance with Article IV, Compensation. Should the CITY subsequently contract with a new consultant for the continuation of services on the Project, COVINGTON shall cooperate in providing information. COVINGTON shall tum over all documents prepared or furnished by COVINGTON pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. ARTICI ,F, XV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute nor be deemed a release of the responsibility and liability of COVINGTON, or any sub-consultants of COVINGTON, for the accuracy and competency of their designs or other work product. ARTICl ,E XVI NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail at the address shown below, certified mail, return receipt requested unless otherwise specified herein. Mailed notices shall be sent to the parties at the following addresses: To COVINGTON: To CITY: R.J. Covington Consulting, LLC Arm: Richard J. Covington 11044 Research Blvd., Suite A-325 Austin, Texas 78759 City of Denton, Texas Atto: Michael A. Conduff, City Manager 215 East McKinney Street Denton, Texas 76201 and to City of Denton, Texas Attn: Director of Electric Utilities 901-A Texas Street Denton, Texas 76205 All notices shall be deemed effective upon receipt by the party to whom such notice is given or within three days after the date of mailing. ENTIRE AGREEMENT This Agreement consisting of nine (9) pages, and four (4) additional pages consisting of Task Order No. 05-C, constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof. ARTICLE XVIII SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the party shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XIX COMPLIANCE WITH LAWS COVINGTON shall comply with ali federal, state, local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafl, er be amended. ARTIC1,17, XX DISCRIMINATION PROHIBITED In performing the services required hereunder, COVINGTON shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICJ .F. PERSONNEL COV1-NGTON represents that he has secured, or will secure at his own expense any additional personnel required to perform all the services required under this Agreement. Such personnel shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have any contractual relations with the CITY. COVINGTON shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. Ali services required hereunder will be performed by COVINGTON or under his supervision. Ali personnel engaged in work shall be qualified and shall be authorized and permitted under state and local laxvs to perform such services. ASSIGNABILITY COVINGTON shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation or otherwise) without the prior written consent of the CITY. ARTICI,E XXIII MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing, duly executed; and, the parties further agree that tire provisions of this section will not be waived unless as herein set forth. ARTICLE XXiV MISCELLANEOUS COVINGTON agrees that CITY shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of COVINGTON involving transactions relating to this Agreement. COVINGTON agrees that the CITY shall have access during normal working hours to all necessary COVINGTON facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. The CITY shall give COVINGTON reasonable advance notice of any intended audits. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by, and construed in accordance with the laws of the State of Texas. COVINGTON shall commence, carry on, and complete the work required by this engagement with ali applicable dispatch, in a sound, economical, efficient manner and in accordance with the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the CITY. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available information pertinent to the work required by this engagement, including previous reports, any other data relative to the project and arranging for the access to, and make all provisions for COVINGTON to enter in or upon, public and private property as required for COVINGTON to perform services under this Agreement. Eo The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive tern~s or conditions of this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covington Consulting, LLC has executed this Agreement by its duty authorized officer on this the __ day of 2005. "CITY" CITY OF DENTON, TEXAS A Municipal Corporation By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ED SNYDER, INTERIM CITY ATTORNEY By: "COVINGTON" R.J. COVINGTON CONSULTING, LLC A Texas Limited Liability Corporation By: Richard J. Co~f(~gtoh,~del S:\OU R DOCUM ENTS",Conlracts".05hgJ Covington Consulting L LC- PSA-TO 05-C- RFP Purchascd Power- DM E.doc AGENDA INFORMATION SHEET AGENDA DATE: May 3, 2005 DEPARTMENT: ACM: Utility Administration Howard Martin, 349-8232 SUBJECT Consider adoption of a resolution reappointing a Member to the Board of Directors of the Texas Municipal Power Agency, represeming the City of DeNon, Texas; and declaring an effective date. BACKGROUND Perry McNeill was originally appoimed to the Texas Municipal Power Agency (TMPA) Board on July 23,2001. Board Members are elected for two-year terms with no term limit. Mr. McNeill's currem term will expire on July 18, 2005 and he is up for re-appoimmem. OPTIONS 1. Reappoint Perry McNeill to the TMPA Board. 2. Do not reappoint Perry McNeil and select another representative. RECOMMENDATION Reappoint Perry McNeill to serve another two-year term to the Texas Municipal Power Agency Board. EXHIBITS 1. Resolution 2. Letter from TMPA Respectfully submitted: Howard Martin, Assistam City Manager, Utilities BERVtNB THE BITIE5 OF BRYAN, DENTON, GARLAND & ~REENVILLE March 14, 2005 Mr. Mike Conduff, City Manager City of Denton 215 E. McKinney Denton, TX 76201 RE: Board Member Appointment Dear Mr. Conduff: Our records indicate that Perry McNeill's term as a Member of the Board of Directors of the Texas Municipal Power Agency expires on July 18, 2005. After the City Council reaches a decision on this matter, please send me a certified resolution specifying the person selected to represent your City on the TMPA Board of Directors. Your cooperation is appreciated. Sincerely, Wanda M. Callahan Assistant Secretary TMPA Board of Directors Cc; Perry McNeill George Hopkins Sharon Mays TERMLTR EXHIBIT 2 TEXAS MUNICIPAL POWER AGENCY P.O. BOX ?FIE O BRYAN, TEXAS ?"TP__,OS-?BEIFI (936) E~"73-9. O l 2 RESOLUTION NO. A RESOLUTION RE-APPOINTING A MEMBER TO THE BOARD OF DIRECTORS OF THE TEXAS MUNICIPAL POWER AGENCY, REPRESENTING THE CITY OF DENTON, TEXAS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the term of office of Perry McNeill as a member of the Board of Directors of the Texas Municipal Power Agency will expire on July 18, 2005; and WHEREAS, the City Council of the City of Demon has selected Perry McNeill, the Mayor Pro-Tem of the City of Denton, for re-appointment for another two-year term of the Texas Municipal Power Agency Board of Directors; and WHEREAS, effective on July 18, 2005, the City Council hereby appoims Perry McNeill as a member of the Texas Municipal Power Agency Board of Directors; NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That pursuam to the terms and provisions of Ordinance No. 75-22 of the City of Denton, Texas, Perry McNeill is hereby appointed to a two-year term of office on the Board of Directors of the Texas Municipal Power Agency, the term of office beginning on July 18, 2005 and ending on July 18, 2007. SECTION 2. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2005. ATTEST: JENNIFER WALTERS, CITY SECRETARY By: EULINE BROCK, MAYOR APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY By: S:\Our Documents\Resolutions\05\Resolution Re-Appointing Perry McNeilI-TMPA Board.doc AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 3, 2005 Tax Kathy DuBose SUBJECT Consider approval of tax refunds for the following property taxes: Tax Name Reason Year Amount 2. Countrywide/Jones, Tracy Duplicate Payment 2004 $604.35 ~ana rb~i Chari Ev ne~upli at ~ ~nt 0N $ 4: LandAmeri~a~Bult0n, R0be~ & Sheila Duplicate Payment 2004 $!,4!4:66 ~c~ani ~g~ M~ ~!i~at ~nt ~0~ $ ~ 6. LandAmerica/Fulligim, Dwight & Frances Duplicate Payment 2004 $972.95 8. LandAmerica/Russell, Colleen Duplicate Payment 2004 $743.84 ~ an ~c~ S ut S~ ~up!i~at ~nt ~00~ $~ ~ 10. LandAmerica/Wohlgemuth, James R Duplicate Payment 2004 $1,022.65 efic~ ~ ~lt~c~l ~ D~!i~at ~nt ~003 $i i SS 6~ ! !: Siena Title ofNo~h Texas~Be!!, Philo Duplicate Payment 2004 $695:0! 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 $10,926.08. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations CITY OF DENTON CITY COUNCIL MINUTES April 4, 2005 After determining that a quorum was presem, the City Council convened in a Special Called Meeting on Monday, April 4, 2005 at 11:30 a.m. in the Council Work Session Room. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Council Members Mulroy and Thomson. ABSENT: Council Members Kamp, Montgomery and Redmon 1. The Council received a report, held a discussion and gave staff direction regarding the City of DeMon's employee health benefits program. City Manager Conduff stated that the goal was to have the city's portion of the health insurance increase no more than 3% annually. In order to accomplish that, plan adjustments and premium adjustmems for employees would have to be made. Scott Payne, Risk Manager, presented the recommendations for the plan design for next year. Those recommendations were a blend of the recommendations from the Employee Insurance Committee and the variables presented in Option 2. It met the budget target of limiting the city's total increase for health coverage to 3% assuming a 25% or less rate increase in 2006. The recommendations were as follows: Align the health plan year with the City's fiscal year beginning October 1, 2006 to give two full years of claims data with United Health Care and to allow sufficient time to align other employee benefits such as demal, vision, and life. Move to the Open Access Plus Medical Provider Network within United Health Care with an estimated 3% savings. Add a $500 per person/S1000 per family deductible. Curremly there was no deductible for in-network charges for an estimated 6% savings. Change the co-insurance to 90% in network and 70% out of network for an estimated 3% savings. Add $1000 per person/S2000 per family for an out-of-pocket maximum for an estimated 3.5% savings. Increase the physician office visit from $15 to $20 per visit for an estimated .5% savings. Change prescription drug copay to $10 generic, $30 formulary and $50 for name brand for a 2% savings Funding increases - increase all levels by $35 per momh Payne indicated that the above changes would result in an estimated total savings of 22.5%. He then reviewed an impact on employees plus a benefits comparison with other cities. City of DeNon City Council Minutes April 4, 2005 Page 2 Council discussion included: Were the deductibles and copay included in the $2000 out-of-pocket family expense - no, the $500 deductible had to be met first, and then the cost share at 90/10 would begin. The 10% would accumulate towards the out-of-pocket maximum. The copay was always paid but not applied to the deductible. Was a deductible on prescriptions considered - that was not recommended at this time. What did the consultant do for city for health insurance - the firm assisted with the determination of renewal rates and worked with underwriters to lower renewal rates before going out for a new bid. Council consensus was to go out for a new bid before renewing the consultant contract. The City was spending $10.5 million on health benefits and the proposed package rearranged benefits to keep a 3% increase for the City to absorb imo the budget that would be an annual goal. That will require additional alternatives in the future to keep those costs down. How did the Employee Insurance Committee work on this proposal and how would the Committee move forward. Payne responded that represematives from various departments made up the Employee Insurance Committee. The EIC had talked with departments on the changes that would have to be done. Was ample dialog done with employees through the Committee - some groups probably didn't get the message but about 90% of the employees had been notified. City Manager Conduff stated that some of the recommendations were different than what the Committee had recommended. The cost of retiree health care would also increase by $35. The retirees would get the full cost of the increase but also have $35 backed out of their benefits. What about employees who retired and were not eligible for Medicare - they could take city insurance and would be charged the retired rate. If an employee were 65 and still working at the City the city insurance would be primary and Medicare would be secondary. Retirees were curremly charged $343 for health insurance that was subsidized $100 per momh. The city was not curremly self-insured - correct; the City was fully insured through United Health Care. A down side of self-insurance was that if the stop loss coverage were not high enough the plan would be hurt. A suggestion was to look at self-insurance as a long-term goal plus joining with other organizations for a larger pool of participants. Consensus of the Council was to proceed with recommendations, keeping the EIC involved and provide Council with updates every three months. City of Demon City Council Minutes April 4, 2005 Page 3 2. The Council received a report, held a discussion and gave staff direction regarding the FY 2005-06 drainage operating budget and CIP. Howard Martin, Assistant City Manager, stated that Council had directed staff to evaluate the financial impact to the drainage budget and future CIP if the general fund did not pay drainage fees and the drainage division did not pay franchise fee and return on investmem. The revenue increase in combination with projected capital funding would produce approximately $880,000 in average annual funding for capital improvemems totaling an estimated $11.5 million over the next 13 years. This would also result in a net revenue increase of approximately $3.3 million over the next 13 years to the drainage CIP. At this time, staff was moving forward with the elimination of franchise fee, return on investment and drainage fee payments in the long-range financial forecast scheduled for an upcoming council review. Consensus of the Council was to proceed as proposed with more discussion to take place in the upcoming financial forecast meeting. With no further business, the meeting was adjourned at 12:30 p.m. EULINE BROCK MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES April 5, 2005 After determining that a quorum was presem, the City Council convened in a Work Session on Tuesday, April 5, 2005 at 4:30 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem McNeill; Mulroy, Redmon and Thomson. ABSENT: Council Members Kamp and Montgomery 1. The Council received a funding recommendations report from the Community Developmem Advisory Committee (CDAC) and the Human Services Advisory Committee (HSAC). The Council held a discussion and gave staff direction regarding the proposed 2005 Action Plan for Housing and Community Development and 2005-2009 Consolidated Plan for Housing and Community Development. Barbara Ross, Community Development Administrator, stated that both committees had spent many hours reviewing requests from a number of organizations for funding requests. She reviewed the process that the committees went through in order to reach their funding recommendations for Council. Ed Tourraine, Chair-Community Development Advisory Committee, stated that four meetings were held to review each of the funding requests. He reviewed the Committee process involved in reaching a decision. Carol Bounds, Human Services Advisory Committee, reviewed the process that the Committee used to review the funding requests. Council discussion included: Challenge with late applications from human service agencies - two applications were received late, after discussion and a tie vote, the chair had to make the decision on whether or not to accept those applications. They were accepted with one funded and one not funded. Agencies serving population outside of Denton - the agencies had to report how the funds were spem which could not be used outside the city. DeNon was providing services for more than just the city and providing services for county residents. Some agencies were only asking for funds from DeNon but were serving populations outside Denton. Consideration of a budget requiremem - provide a census of how long recipiems had resided in DeNon. Wendy Nails, Human Services Coordinator, stated that type of information could be provided Council as it showed that the funds provided by the City of DeNon were only being used for DeNon residems. That was a prerequisite for funding from the city. City Manager Conduff stated that staff was directed to work with the Committees to request a funding amount no more than the amount from last year. The recommendation brought forward was $48,000 more than last year with no reduction in amoums. In order to provide this funding City of DeNon City Council Minutes April 5, 2005 Page 2 allocation, one more employee reduction would have to be done and total funding recommendations would require the reduction of three more employees. Ross requested that if Council wanted changes to the planned use of the funds to allow the Committees to make the changes based on Council's guidance. Consensus of the Council was be bring back information on the census as requested and then look at funding recommendations. 2. The Council received a report, held a discussion and gave staff direction on gas well surface rights and mineral rights. Dottie Palumbo, Assistant City Attorney, stated that this would be a general discussion of the legal principles dealing with gas well surface rights and mineral rights. Mineral state was the dominant state for surface rights. Municipal regulations were not preempted by the Railroad Commission when regulated in the city limits or in the extraterritorial jurisdiction. Council discussion included: Did DeNon inspect wells outside the city limits - yes, Council had passed an ordinance allowing the City to do that for watershed protection only. Had there been any challenges to the either the original City ordinance or the amendmem - no claims had been filed to date. How was the money coming from the gas wells being handled so that the city would not become dependem on that revenue - Council would be discussing that in an upcoming session on the financial forecast. 3. Staff responded to requests for clarification of consent agenda items listed on the Consent Agenda for the meeting of April 5, 2005. The Council then adjourned imo Closed Session to discuss Item #2. Regular Meeting of the City of DeNon City Council on Tuesday, April 5, 2005 at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1. Council considered a Resolution of Appreciation for Sammy Davis. City of Denton City Council Minutes April 5, 2005 Page 3 Thomson motioned, Mulroy seconded to approve the resolution. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. The City was presemed a Tree City USA award and an award for the City's tree preservation ordinance from the National Forest Service. Mayor Brock read a proclamation for Redbud Day and for Presbyterian Hospital Day. B. Recognition of staff accomplishments City Manager Conduff presented staff accomplishments to the Council. 3. CONSENT AGENDA Mulroy motioned, Thomson seconded to approve the Consent Agenda and accompanying ordinances. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 2005-104 - An ordinance of the City Council of the City of Demon, Texas authorizing the City Manager or his designee to approve a Right-of-Way Use Agreement to allow continued existence of a monument sign within street right- of-way at McKamy Boulevard and North Locust Street to indicate entryway into McKamy Evers Estates; and providing an effective date. 2005-105 - An ordinance approving an Easemem to Verizon Wireless across City of Denton property being a tract of land situated in the Mary Austin Survey, Abstract No. 4, in the City of Denton, Denton County, Texas, and being a portion of the Remainder of Lot 1, Block 2 of the Municipal Utility Addition, an addition to the City of Demon, as recorded in Cabinet G, Page 346, Plat Records of the Real Property Records of Denton County, Texas; and providing an effective date. The Public Utilities Board recommended approval (6-0). Approved tax refunds for the following property taxes: Tax Name Reason Amount Year I ~ ~g~a~ S~gaa ~~ ~nt ~00~ $ 8~ 2. Choice Homes Inc Duplicate Payment 2004 $863.45 4. Fairfield Denton Exchange Ltd Duplicate Payment 2004 $1,460.16 6. First American Comm RE Tax Svcs/M & A Texas VE Ltd Duplicate Payment 2004 $16,542.71 8. Jones, Jeanne S Duplicate Payment 2004 $7,855.30 ~V ~IS~ ~ ~nt ~00 $ ~806 10. Maritn, Gary L Duplicate Payment 2004 $1,278.83 City of Denton City Council Minutes April 5, 2005 Page 4 Tax Name Reason Amount Year 12. Smith, Michael Christian Overpayment 2004 $895.72 !4, Thompson, J Cleo 0yerpayment 2004 $!,!09:8! 2005-106 - An ordinance accepting competitive bids and awarding a two-year contract for the purchase of water and sewer parts for the City of Denton Warehouse; providing for the expenditure of funds therefor; and providing an effective date (Bid 3244 - Two-Year Contract for Water and Sewer Inventory awarded to the lowest responsible bidder for each section in the annual estimated amoum of $500,000). The Public Utilities Board recommended approval (6-0). 2005-107 - An ordinance accepting competitive bids and awarding a three year contract for the purchase of substation switches for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (Bid 3300 - Three-Year Comract for Substation Switches awarded to the lowest responsible bidder for each item as listed in Exhibit A). The Public Utilities Board recommended approval (6-0). 2005-108 - An ordinance accepting competitive bids and awarding a comract for library shelving end panels and coumertops for the Demon Public Library System; providing for the expenditure of funds therefor; and providing an effective date (Bid 3305 - Library Shelving End Panels and Coumertops awarded to the Asmar Custom Cabinets, Inc. in the amoum of $32,465.20). 2005-109 - An ordinance of the City of Demon, Texas authorizing the City Manager, or his designee, to execute on behalf of the City of Demon an acceptance of an offer from the Texas Department of Transportation relating to a grant for construction services to construct a corporate apron and stub taxiway at the airport; authorizing and directing the City Manager to expend funds provided for in the gram program; and declaring an effective date. (TxDOT Project No.: AP DENTON 9; and TxDOT CSJ No.: 0518DENTO). The Airport Advisory Board recommended approval (5-0). Approved the minutes of: February 1, 2005 February 7, 2005 February 8, 2005 February 9, 2005 February 16, 2005 February 22, 2005 March 1, 2005 March 7, 2005 March 8, 2005 City of DeNon City Council Minutes April 5, 2005 Page 5 2005-110 - An ordinance of the City of DeNon, Texas, authorizing the City Manager to submit an application under the National School Lunch Act to obtain funding for the 2005 Summer Food Service Program; if such funding is grained, the City Manager is authorized to execute the Summer Food Service Program agreement with the Texas Department of Human Services and execute a contract with the Denton Independent School District and all additional documents and agreements, as required; authorizing the expenditure of funds to administer the program; and providing an effective date. 4. PUBLIC HEARINGS A. The Council held a public hearing inviting citizens to commem on the City of DeMon's 2005-2009 Consolidated Plan for Housing and Community Development and the 2005 Action Plan. Barbara Ross, Community Development Administrator, stated that the five-year plan included demographic and housing information for the City of Denton. It set forth the strategies for the next five years for expenditures of funds by community developmem. These recommendations were broad enough to allow citizens and council to make more specific decisions on an annual basis. The Mayor opened the public hearing. The following individuals spoke during the public hearing: Stan Morton, 43 Wellington Oaks Circle, Demon - in support of People's Clinic Bob Clifton, 311 S. Locust, Demon, 76201 - opposed to funding for city projects George Gibson, 1401 Lynhurst, Demon - in support of Our Daily Bread Tim King, 3609 Oakview Place, Demon, 76210, in support of Peoples Clinic Dessie Goodson, opposed to funding for city projects The Mayor closed the public hearing. No official action was needed at this time. B. The Council held a public hearing and considered adoption of an ordinance rezoning approximately 19.85 acres from the Neighborhood Residemial 4 (NR-4) zoning district to the Neighborhood Residemial Mixed Use-12 (NRMU-12) zoning district with an overlay. The property was located on the east side of Hinkle Drive, approximately 850 feet north of University Drive, and approximately 1,200 feet west of Carroll Boulevard. The Planning and Zoning Commission recommended denial (6-0). NOTE: A SUPERMAJORITY VOTE BY THE COUNCIL WAS REQUIRED FOR APPROVAL. (Z04-0009, Hinkle Addition) Mayor Brock indicated that as there were only five members present for this meeting, a supermajority vote was not possible. The public hearing would be opened for commems and then continued to the next regular meeting. The Mayor opened the public hearing. City of DeNon City Council Minutes April 5, 2005 Page 6 No one spoke during the public hearing. McNeill motioned, Mulroy seconded to cominue the public hearing to the April 19, 2005 meeting. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council held a public hearing and considered adoption of an ordinance graining approval of a public street easement for the surface use of an approximate 0.05 acre portion of the Denton Branch Rail Trail for the purpose of a public street at Woodrow Lane in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for the issuance of a Public Street Easement, and providing an effective date. The Parks, Recreation and Beautification Board recommended approval (5-0). Janet Simpson, Director of Parks and Recreation, stated that this was a public street easement for the widening of Woodrow Lane. A public hearing was required per the Texas Parks and Wildlife Code as the proposed use was for something other than a park. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. The following ordinance was considered: NO. 2005-111 AN ORDINANCE GRANTING APPROVAL OF A PUBLIC STREET EASEMENT FOR THE SURFACE USE OF AN APPROXIMATE 0.05 ACRE PORTION OF THE DENTON BRANCH RAIL TRAIL FOR THE PURPOSE OF A PUBLIC STREET AT WOODROW LANE IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE; PROVIDING FOR THE ISSUANCE OF A PUBLIC STREET EASEMENT, AND PROVIDING AN EFFECTIVE DATE. Mulroy motioned, Redmon seconded to adopt the ordinance. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. The Council considered adoption of an ordinance concerning an Alternative Developmem Plan for approximately 3.2 acres of land located in a Regional Cemers Commercial Dowmown (RCC-D) zoning district. The proposed site was generally located at the southwest corner of Windriver Lane and 1-35 E frontage road intersection. Two restaurants were proposed. The Planning and Zoning Commission recommended approval (5-0). (ADP04-O009, Shady Oaks BBQ and Mexican Grille) City of DeNon City Council Minutes April 5, 2005 Page 7 Kelly Carpemer, Director of Planning and Developmem Services, stated that 118 additional spaces for parking were proposed which were above what was required for the proposal. A variety of improvemems were proposed for the area to allow for the additional paving for parking. The following ordinance was considered: No. 2005-112 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATIVE DEVELOPMENT PLAN FOR APPROXIMATELY 3.2 ACRES OF LAND GENERALLY LOCATED AT THE SOUTHWEST CORNER OF WINDRIVER LAND AND 1-35, WITHIN A REGIONAL COMMERCIAL CENTER DOWNTOWN (RCC-D) ZONING DISTRICTS SITUATED IN THE M.E.P & P.R.R. SURVEY, ABSTRACT NO. 950, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (ADP04-0009) McNeill motioned, Mulroy seconded to adopt the ordinance. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. B. The Council considered adoption of an ordinance accepting sealed competitive proposals and awarding a contract for construction services for renovations to the City of Denton Municipal Jail; providing for the expenditure of funds therefor and providing an effective date (RFSCP 3290 - Additions to DeNon City Jail awarded to Jones and Jeffery Construction Co., inc. in an amoum not to exceed $317,992.30). Bruce Henington, Director of Facilities Managemem, presemed the details of the proposed renovation. The renovations would increase cell capacity from 18 to 34, provide two additional cells, increase ceiling security, provide a restroom for officers, provide a holding cell, and enhance existing security. Maimenance componems of the renovation would re-key the area, replace the door comrol panel, enhance security through additional cameras, provide a defibrillator, replace the washer/dryer, provide a new chiller, and new detemion furniture. The following ordinance was considered: NO. 2005-113 AN ORDINANCE ACCEPTING SEALED COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR CONSTRUCTION SERVICES FOR RENOVATIONS TO THE CITY OF DENTON MUNICIPAL JAIL; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR AND PROVIDING AN EFFECTIVE DATE (RFSCP 3290 - ADDiTiONS TO DENTON CiTY JAiL AWARDED TO JONES AND JEFFERY CONSTRUCTION CO., INC. IN AN AMOUNT NOT TO EXCEED $317,992.30). City of Demon City Council Minutes April 5, 2005 Page 8 Mulroy motioned, Thomson seconded to adopt the ordinance as presented. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. C. The Council considered approval of a resolution of the City Council of the City of Denton, Texas, authorizing the City Council of the City of Denton to provide comments to the North Central Texas Council of Governments concerning coordination of the alignment of the Trans-Texas Corridor; and providing for an effective date. Jon Fortune, Assistant City Manager, stated this item and next were related. The first resolution authorized a letter to the Council of Government seeking support for a northern connector for alignmem of the Trans-Texas Corridor. The following resolution was considered: NO. R2005-011 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY COUNCIL OF THE CITY OF DENTON TO PROVIDE COMMENTS TO THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS CONCERNING COORDINATION OF THE ALIGNMENT OF THE TRANS-TEXAS CORRIDOR; AND PROVIDING FOR AN EFFECTIVE DATE. McNeill motioned, Thomson seconded to approve the resolution. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. D. The Council considered approval of a resolution of the City Council of the City of Denton, Texas, establishing a regional policy position regarding the Texas Department of Transportation's Trans-Texas Corridor - 35 Initiative; and providing for an effective date. Jon Fortune, Assistant City Manager, stated that the Regional Transportation Council had adopted a regional policy for the Trans-Texas corridor and the Council Mobility Committee felt it was important to adopt a resolution adopting same policy as the RTC. The following resolution was considered: NO. R2005-012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, ESTABLISHING A REGIONAL POLICY POSITION REGARDING THE TEXAS DEPARTMENT OF TRANSPORTATION'S TRANS-TEXAS CORRIDOR 35 INITIATIVE; AND PROVIDING FOR AN EFFECTIVE DATE. Mulroy motioned, Thomson seconded to approve the resolution. On roll vote,, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. City of Demon City Council Minutes April 5, 2005 Page 9 E. The Council considered adoption of an ordinance providing for the reassignmem of the City Attorney and the appointment of an Interim City Attorney; and providing an effective date. The Council Appoimee Performance Measures Committee recommended approval. Mayor Pro Tem McNeill stated that the Committee had worked with the City Attorney on this reassignment and recommended acceptance of the retirement of Herb Prouty and the appointment of Ed Snyder as interim city attorney. The following ordinance was considered: NO. 2005-114 AN ORDINANCE PROVIDING FOR THE REASSIGNMENT OF THE CITY ATTORNEY AND THE APPOINTMENT OF AN INTERIM CITY ATTORNEY; AND PROVIDING AN EFFECTIVE DATE. McNeill motioned, Thomson seconded to adopt the ordinance. On roll vote, McNeill "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. F. The Council considered adoption of an ordinance approving a personal and professional services contract between the City of Denton and Herbert L. Prouty; authorizing the expenditure of funds; and providing an effective date. The Council Appoimee Performance Measures Committee recommended approval. Mayor Pro Tem McNeill stated that Mr. Prouty would assist with the continuance of his services in order to help with the transition. The following ordinance was considered: NO. 2005-115 AN ORDINANCE APPROVING A PERSONAL AND PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF DENTON AND HERBERT L. PROUTY; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. McNeill motioned, Mulroy seconded to adopt the ordinance. On roll vote, McNeill "aye", Montgomery "aye", Mulroy "aye", Redmon "aye", Thomson "aye" and Mayor Brock "aye". Motion carried unanimously. Go Citizen Reports 1. Review of procedures for addressing the City Council. 2. The Council received citizen reports from the following: A. Dessie Goodson regarding responsibility. City of Demon City Council Minutes April 5, 2005 Page 10 Ms. Goodson stated the council did not have money for streets or roads but had money to pay for the Denton Live magazine. She had made an Open Records Request and had not received the information at this point. She questioned what was the emergency to publish the magazine. B. Chris Williams regarding day laborer site and panhandling ordinance. Mr. Williams was not present at the meeting. C. Peternia Washington regarding elected official demeanor. Ms. Washington stated council demeanor during citizen reports was not the best with some members not paying attention to the speakers. She felt Council should respect the speakers and listen to their comments. D. Kelly Fincher regarding a report on drug abuse in Denton County. Ms. Fincher was not present at the meeting but her report was presented to the Council. H. New Business The following items of New Business were requested by Council Members for future agendas: 1. Council Member Redmon requested information on a loitering ordinance. I. Items from the City Manager City Manager Conduff did not have any items J. Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. The Closed Meeting was not continued. K. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. There was no official action on Closed Meeting Items. With no further business, the meeting was adjourned at 7:41 p.m. EULINEBROCK MAYOR CITY OFDENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 3, 2005 Fiscal Operations Kathy DuBose ~ SUBJECT Consider approval of an ordinance directing the publication of Notice of Intention to issue Certificates of Obligation of the City of Denton; and providing for an effective date. BACKGROUND This ordinance provides the Notice of Intention to issue City of Denton Certificates of Obligation Bonds, Series 2005. This notice will be published on May 8 and May 15, 2005. These Bonds will provide funding of $7,145,000 (including costs of issuance) for the following projects and improvements: $ 750,000 3,250,000 1,550,000 1,500,000 Miscellaneous Paving Public Safety - Fire Station #7 Solid Waste Vehicles and Equipment PRIOR ACTION/REVIEW {Council~ Boards~ Commissions} All of these projects were approved in the Capital Improvement Program, fiscal year ending 2005-2009. FISCAL INFORMATION The Certificates of Obligation Bonds will have an estimated average annual debt services requirement of approximately $510,800. This amount has been included in thc budget process. Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations ORDINANCE NO. 2005- AN ORDINANCE DIRECTING THE PUBLICATION OF NOTICE OF INTENTION TO ISSUE CERTIFICATES OF OBLIGATION OF THE CITY OF DENTON; AND PROVIDING FOR AN EFFECTIVE DATE THE STATE OF TEXAS COUNTY OF DENTON CITY OF DENTON WHEREAS, it is deemed necessary and advisable that Notice of Intention to Issue Certificates of Obligation be given as hereinafter provided. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: Section I. That attached hereto is a form of"NOTICE OF INTENTION TO ISSUE CERTIFICATES OF OBLIGATION OF THE CITY OF DENTON", the form and substance of which are hereby adopted and approved, and made a part of t~his Ordinance for all purposes. Section II. That the City Secretary shall cause said NOTICE, in substantially the form attached hereto, to be published once a week for two consecutive weeks in a newspaper of general circulation in the City, with the date of the first publication to be at least fifteen (15) days before the date tentatively set for the passage of the Ordinance authorizing the issuance of such Certificates of Obligation. Section III. That this Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the 3rd day of May, 2005. ATTEST: Euline Brock, Mayor Jennifer Walters, City Secretary APPROVED AS TO LEGAL FORM: Edw~n~ A~.orney THE STATE OF TEXAS COUNTY OF DENTON CITY OF DENTON NOTICE OF INTENTION TO ISSUE CERTIFICATES OF OBLIGATION OF THE CITY OF DENTON THE CITY OF DENTON, in Denton County, Texas, hereby gives notice of its intention to issue CITY OF DENTON CERTIFICATES OF OBLIGATION, in accordance with the Certificate of Obligation Act of 1971, as amended and codified, and other applicable laws, in the maximum principal amount of $7,145,000 for the purpose of paying all or a portion of the City's contractual obligations incurred pursuant to contracts for the purchase, construction and acquisition of certain real and personal property, to wit: (a) road and street improvements; (b) construction and equipping of a new westside fire station No. 7; (c) purchase of vehicles for use by the City's public safety departments; and (d) improvements to the City's solid waste disposal system and acquisition of related equipment; and also for the purpose of paying all or a portion of the City's contractual obligations for professional services, including engineers, architects, attorneys, map makers, auditors, and financiat advisors, in connection with said Certificates of Obligation. The City proposes to provide for the payment of such Certificates of Obligation from the levy and collection of ad valorem taxes in the City as provided by law, and from certain surplus revenues (not to exceed $10,000 in aggregate amount) derivedby the City from the ownership and operation of the City's Utility System (consist- ing of the City's combined waterworks system, sanitary sewer system, and electric light and power system). The City Council of the City tentatively proposes to authorize the issuance of such Certificates of Obligation at a meeting commencing at 1 t :00 a.m. on the 24th day of May, 2005, in the City Council room at the Municipal Building (City Hall), 215 E. McKitmey, Denton, Texas. CiTY OF DENTON, TEXAS By: Jennifer K. Walters, City Secretary AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: May 3, 2005 City Manager's Office Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance of the City of DeNon authorizing an agreemem between the City of Denton, Texas and the Denton Festival Foundation for supplemental funding for the Arts and Jazz Committee for the 2005 Denton Arts and Jazz Festival; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND: Mayor Pro Tem McNeill and Council Members Kamp, Momgomery and Thomson made requests of their contingency funds be expended to help pay for the arts and entertainment of the 2005 Arts and Jazz Festival. The total amount requested is $2,000. RECOMMENDATION Staff recommends approval of this ordinance ratifying the agreemem between the City and the Denton Festival Foundation to support the 2005 Arts and Jazz Festival. PRIOR ACTION/REVIEW (Council, Boards, Commission) None FISCAL INFORMATION The comingency fund expenditure request is for $2,000.00. Respectfully submitted: Betty Director of Managemem and Pub]ic !nfomation Prepared bT: Michel!e Garcia M~ageraent A~istant to the City Council S:\OUR DOCUMENTS\Ordinances\05~Denton Festival Foundation-Jazz Fest.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZ/NG AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE DENTON FESTIVAL FOUNDATION FOR SUPPLEMENTAL FUNDING FOR THE ARTS AND JAZZ COMMITTEE FOR THE 2005 DENTON ARTS AND JAZZ FESTIVAL; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Denton Festival Foundation (the "Organization") provides for the annual Denton Arts and Jazz Festival including the 2005 Festival (the "Program"); and WHEREAS, the City Council of the City of Denton hereb3~ finds that the Program and the agreement between the City and the Organization attached hereto and made a part hereof by reference (the "Agreement") serve a municipal and public purpose, including the promotion of tourism and economic development and the Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ~ 2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION THIS AGREEMENT is made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Festival Foundation, Inc. a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION"): WHEREAS, on September 21st, 2004 the CITY and FOUNDATION entered into that certain agreement for the 2005 calendar year to provide for services related to the promotion of tourism which was funded with hotel and motel tax revenue (the "Hot Funds Agreement"); and WHEREAS, a main purpose of the Hot Funds Agreement was to help implement the annual Denton Arts and Jazz Festival (the "Festival") held in April of 2005; and WHEREAS, the Foundation has requested supplemental funding for the 2005 Festival in addition to annual request for HOT funds; and WHEREAS, the Festival and this agreement serve an important public purpose in promoting tourism and economic development in Denton; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the FOUNDATION agree and contract as follows: I. PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by the FOUNDATION under this Agreement, the CITY agrees to pay to the FOUNDATION the sum of $2,000.00 to be used to fund the FOUNDATION'S Arts and Jazz Festival's 2005 Headliner, "Tower of Power", eXcept that such funds may not be used for overhead or employee salaries and benefits. Payment of the funds shall be made upon the effective date of this Agreement. The funds provided herein are not Hotel Tax Revenue funds but are general funds of the CITY. H. USE OF REVENUE 2.1 Use of Funds. For and in consideration of the payment by the CITY to the FOUNDATION of the agreed funds the FOUNDATION agrees to use such funds only for the purpose stated in Section 1.1 above. HI. RECORDKEEPING AND'REPORTING REQUIREMENTS 3.1 Financial Records. The FOUNDATION shall maintain complete and accurate financial records of each expenditure of the funds made by the FOUNDATION. Upon reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3.2 Notice of Meetings. The FOUNDATION shall give the City Manager of the CITY reasonable advance written notice of the time and place of all meetings of FOUNDATION's Board of Directors, as well as any other meeting of any constituency of the FOUNDATION at which this Agreement or any matter the subject of this Agrbement shall be considered. This provision shall not be deemed to require the FOUNDATION to give notice of any executive session of the Executive Committee of the FOUNDATION. ~ IV.: TERM 4.1 Term. The term of this Agreement shall commence on the effective date and terminate upon completion of the 2005 Festival. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by the FOUNDATION with another private entity, person, or organization for the performance of those sei'vices. In the event that the FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the FOUNDATION shall cause such other entity, p~erson, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement, including reporting requirements, separate funds maintenance, !.and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. The FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of the CITY. The FOUNDATION: shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 5.3 Indemnification. THE FOUNDATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER I~ND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE FOUNDATION OR THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF FOUNDATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. Page 2 5.4 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining the written consent of the CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mall, certified mall, return receipt requested, or by hand-delivery, addressed to the respective parties as follows: CITY FOUNDATION City Manager City of Denton 215 E. McKinney Denton, TX 76201 Denton Festival Foundation, Inc. Carol Short Festival Coordinator P.O. Box 2104 Denton, Texas 76202-2104 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and the FOUNDATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties heret°, relating to the subject matter of this Agreement,' which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement fi:om the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement i~s executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. ; 5.11 Severability. If any section, subsection} paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they ~would have enacted such remaining portions despite any such invalidity. Page 3 5.12 Insurance. The FOUNDATION shall provide insurance as follows: $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City-owned property Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) The CITY must be named as an additional ins~ed on all policies (except Workers' Compensation) and proof of Coverage shall be submitted prior to any payment by the CITY. EXECUTED to be effective the day of ., 2005. THE CITY OF DENTON, TEXAS By: EULINE BROCK, MAYOR ATTEST: By: JENNIFER WALTERS, CITY SECRETARY APPRO~~RM:. · CITY ATTORNEY DENTON FESTIVAL FOUNDATION, INC. Chairman/Director S:\Our Documents\Contracts\05XDenton Festival Foundation-Arts & Jazz Fest. doc Page 4 AGENDA INFORMATION SHEET AGENDA DATE: May 3, 2005 DEPARTMENT: Legal CM/DCM/ACM: Herbert L. Prouty, Assistant City Attorney SUBJECT: Hold a public hearing and consider approval of an Ordinance of the City of Denton, Texas denying Atmos Energy Corporation's request for an annual Gas Reliability Infrastructure Program adjustment in this municipality; providing a requirement for prompt reimbursement of costs incurred by the City; finding that the meeting at which this Ordinance is passed is open to the public as required by law; providing for notice of this Ordinance to Atmos Energy Corporation; and providing an effective date. BACKGROUND: On about December 17, 2004, Atmos Energy Corporation's Mid-Tex Division ("Atmos") successor of the TXU Gas Company as a result of a recent merger, filed an application with the City to increase gas rates for its Gas Reliability Infrastructure Program ("GRIP") pursuant to Section 104.301 of the Gas Utility Regulatory Act ("Act"). Based on information Atmos provided through it's filing, it is claiming a change in utility plant investment from calendar year 2002 - 2003 of $32,518,365 systemwide necessitating an annual return interim rate increase of $6,691,224. Atmos is asking for an additional annual revenue increase that would increase customer monthly charges from $9.00 to $9.31 for residential customers and from $15.50 to $16.34 for commercial customers, $150.00 to $176.85 for industrial and some other customer classes. Atmos Energy requested that the City allow the rates to go into effect automatically on February 15 of this year, or that the City pass a resolution denying the rates on or before that date so it could immediately appeal the matter to the Railroad Commission. Instead of doing what Atmos had recommended, the City Council, on February 1 of this year, passed a Resolution 2005-004 suspending the effective date of Atmos' rate request until May 15 of this year. Also by that Resolution, the Cits; joined a coalition of cities now known as the Atmos Texas Municipalities ("ATM") and authorized ATM to employ experts to examine the GRIP filing by Atmos and make a recommendation on the filing to the ATM cities. On Wednesday of this week, we, along with the other ATM cities, received a report on Amos' GRIP rate request from the Law Offices of Jim Boyle, who you had authorized us to hire as one of the rate experts along with a report from Michael L. Amdt of Amdt & Associates, the rate expert hired by the ATM coalition. A copy of Mr. Amdt's is attached to the Ordinance. In the opinion of Jim Boyle, Atmos Energy does not meet the legal requirements to qualify for a GRIP increase under the GRIP statute and has improperly included relocation costs in its GRIP request, which is contrary to the Railroad Commission rules for GRIP requests. A copy of Mr. Boyle's report is attached to and more fully discussed in the Legal Department's status report. Amdt & Associates have made a determination that Amos' filing fails to justify Atmos' proposed interim increase. It is therefore the recommendation of our consultants that you pass an ordinance denying Atmos' request for a GRI1) adjustment in all respects. Agenda Information Sheet May 3, 2005 Page 2 OPTIONS: City Council can approve the Ordinance denying Atmos' request for a GRIP adjustment and Atmos will most likely appeal this request to the Railroad Commission. The City can refuse to pass the Ordinance and Atmos Energy's gas rate increase will automatically go into effect on or after May 15, 2005. RECOMMENDATION: The Steering Committee for the ATM cities recommends that the City Council chose Option 1 and pass the Ordinance denying Atmos' GRIP adjustment in all respects. The City must act prior to the May 15, 2005 suspension date or the GRIP adjustment could go into effect on or after that date. The Ordinance calls for all costs incurred in reviewing and investigating the application for a GRIP adjustment to be promptly reimbursed by Atmos. FISCAL IMPACT: Denying the GRIP request at the local level will save Denton Atmos gas ratepayers a significant amount of money by delaying the implementation of increased gas rates. We believe that the reasonable costs for the consultants to investigate this GRIP request should be reimbursable to the City and the ATM coalition by Atmos Energy. There may be some doubt with regard to this due to the newness and lack of judicial interpretation of the GRIP legislation and the fact that action by the Legislature during this legislative session could impact the ability of a city to recover its reasonable costs of rate'case expenses in the future. Atmos would be able to pass on, through a surcharge, most of the rate case expenses to Amos' gas customers in the City of Denton. It is anticipated that the potential savings to Denton Atmos Energy gas customers through the reduction of an anticipated requested rate increase would more than offset any surcharge of rate case expenses. Respectfully submitted: Herbert L. Prouty Assistant City Attorney S:\OUR DOCUMENTS\GAS\TXTJ Gas\Ordinances-Resolufio~s\GRIP.do¢ ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS DENYING ATMOS ENERGY CORPORATION'S REQUEST FOR AN ANNUAL GAS RELIABILITY INFRASTRUCT~ PROGRAM ADJUSTMENT IN THIS MUNICIPALITY; PROVIDING A REQUIREMENT FOR PROMPT REIMBURSEMENT OF COSTS INCURRED BY THE CITY; FINDING THAT THE MEET/NG AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW; PROVIDING FOR NOTICE OF THIS ORDINANCE TO ATMOS ENERGY CORPORATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on or about December 17, 2004 the Atmos Energy Corporation's Mid-Tex Division ("Atmos") filed an application with the City of Denton, Texas ("City") to increase gas rates for its Gas Reliabihty Infrastructure Program ("GRIP") pursuant to Section 104.301 of the Gas Utility Regulatory Act ("GURA" or "Act"); and WHEREAS, the City has exclusive original jurisdiction to evaluate Amos' application to increase rates for its GRIP, pursuant to Texas Utilities Code Sections 102.001(b) and 103.001 and other applicable provisions of the law; and WHEREAS, on or about February 1, 2005, the City Council passed Resolution No. R2005-004 suspending the effective date of the proposed GRIP adjustments by Atmos Energy and the tariffs related thereto until May 15, 2005; and WHEREAS, the City has joined with other municipalities in a coalition of cities known as Atmos Texas Municipal/ties ("ATM"); and WHEREAS, ATM has employed experts to examine the GRIP filing by Atmos and make a recommendation to the ATM Cities; and WHEREAS, the City has suspended the effective date of the GRIP adjustment until May 15, 2005; and WHEREAS, after examining the law and undertaking an investigation of the GRIP filing by ATM's consultants, the consultants recommend that the GRIP adjustment sought by Atmos be denied as set forth in the attached report; and WHEREAS, a public hearing was conducted on May 3, 2005 before the enactmem of this Ordinance at which interested parties were given a full opportunity for public comment on Atmos' GRIP filing; NOW, THEREFORE, THE COUNCiL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Atmos' request for a GRIP adjustment within the City be denied in all respects. S:\OUR DOCUMENTS\GAS\TXU Gas\Ordinances-Resolutions\GRIP.doc SECTION 2. The costs incurred in reviewing and investigating the merits of Atmos' application for a GRIP adjustment, including all rate case expenses, within the City be promptly reimbursed by Atmos. SECTION 3. This Ordinance shall become effective immediately from and after its passage, as the law and charter in such cases provide. SECTION 4. That it is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required. SECTION 5. That the City Secretary is hereby directed to forward a copy of this Ordinance, constituting final action on Atmos' application to Mr. Richard Reis, Atmos Energy Corporation, 300 South St. Paul Street, Suite 8-113, Dallas, Texas 75201. PASSED AND APPROVED this the 2005. day of EUHNEBROCK, MAYOR ATTEST: JENNiFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY BY: MICHAEL L. ARNDT ARNDT & ASSOCIATES 3602 S. W. Zona Circle Ankeny, Iowa 50021 (515) 964-8902 TO: ATM Cities FROM: Michael L. Arndt DATE: April 27, 2005 Atmos Energy Corporation Railroad Commission of Texas Infrastructure Program Rate Adjustment Introduction On December 17, 2004, Atmos Energy Corporation ("Atmos' or "Company) Mid~Tex Division filed applications with each city in the Texas service area including each Atmos Texas Municipalities ("ATM')l° city pursuant to the Gas Reliability Infrastructure Program ("GRIP") statute. The application was for an annual GRIP rate adjustment applicable to distribution customers in the municipal service areas. The Company's GRIP filings seek interim distribution rate adjustmems based on the difference between the values of invested capital as of December 31, 2003 and the values of invested capital as of December 31, 2002, as approved by the Commission in GUD No. 9400. Mid-Tex Division's GRIP application seeks an increase in distribution rates of $6,691,224.n The purpose of this memorandum is to analyze Company's GRIP application for the ATM cities. Plant Relocation Costs Plant relocation costs for gas utilities are the costs of relocating gas facilities (e.g., mains, service lines, etc.) to accommodate construction or improvements. The comtruction or The Atmos Texas Municipalities include Baler Springs, Bandera, Belton, Bumet, Caldwell, Celina, Clifton, Coleman, Copperas Cove, Corsicana, Crowley, Denton, Dublin, Electra, Fredericksburg, Frost, Gatesville, Goldthwaite, Granbury, Greenville, Groesbeck, Hamilton, Hickory Creek, Hillsboro, Lampasas, Lexington, Llano, Lometa, Longview, Mart, McGregor, Mexia, Pflugerville, Ranger, Riesel, Round Rock, San Saba, Seymour, Somerville, West, and Whitney. Atmos Energy Corporation, Mid-Tex Division's GRIP filing, Schedule A, line 12 improvements generally relate to highway, road, street, public way or other public works. Most of the plant relocation projects occur in areas with high growth and generally increase economic activities within that area. On September I, 1999, TEX UTIL. CODE Section 104.112, Surcharge to Recover Relocation Costs, was approved and became effective. Section 104.112 applies to a gas utility's costs of relocating a facility to accommodate construction or improvements of a highway, road, street, public way, or other public work by or on behalf of the United States, Texas, a political subdivision of Texas or another entity having the power of eminent domain that are not reimbursed. Section 104.112 provides that a gas utility may recover its unreimbursed relocation costs through a surcharge on gas volumes sold and transported to customers in the service area where the relocation occurred. Section 104.112 allows the surcharge to be recovered over a three-year period. The benefits of Section 104.112 are many. First, Section 104.112 allows gas utilities to recover plant relocation costs from the customers who benefit from the plant relocations. Many of the relocations are in areas of high growth and the relocations provide for increased economic activities. Customers in iow growth areas should not be required to pay for expensive relocations, which provide economic benefits to other areas. Second, since the Section 104.112 surcharge is a visible cost to customers, the gas companies and parties causing the plant relocation costs should be more inclined to cooperate in order to fully plan facility relocations. This should result in lower costs and greater efficiencies. Third, Section 104.112 results in greater review of the relocation projects on an individual project basis. Review of the individual projects on a local level should improve regulatory oversight and should result in lower costs. Since its enactment in September 1999 to date, the Company has never used the surcharge provisions granted in Section 104.11272 The Company's failure to utilize the provisions contained in Section 104.112 has resulted in increased unreimbursed plant relocation costs and increased rate base, return'and depreciation' requirements in this proceeding. The Company has provided no studies or analyses to support its failure to utilize Section 104.112.~3 The Company's failure to utilize Section 104.112 increases costs and has caused harm to ratepayers who have been subsidizing plant relocation costs of others. The Company has not demonstrated in this proceeding that it is appropriate to spread these costs system wide as opposed to utilizing the mechanisms of Section 104.112. It is my recommendation that such costs not be recovered on a system wide basis through the GRIP application but rather only through the application of Section 104.112. Company responses to ATM 1-5, 1-22 and 3-2 Company responses to ATM 1-4 and 1-23 Additional Poly 1 Adjustments In Docket No. 9400, the Commission disallowed approximately $88.211 million of plant costs related to the Company's polyethylene 3306 pipe CPoly 1"). As shown on Workpaper/Schedule A, lines 1,2 and 5, the Company has recognized the $88.211 million of Poly 1 disallowances. In addition, however, the Company has proposed $10,646,065 of additional adjustments to accumulated depreciation which were not made in Docket No. 9400 (see Company Workpaper/Schedule A, lines 9-14). The Company's proposed $10.646 million of additional Poly 1 adjustments to accumulated depreciation were not allowed in Docket No. 9400 and should not be allowed the Company's GRIP filing. Customer/Meter Levels As shown on Schedule B of the Company's GRIP distribution and pipeline filings, the Company has used average 2003 customer and meter counts to determine the changes in the customer/meter charges from the GRIP filings.'4 Since the Company's GRIP filings recognize plant additions through December 2003, it is necessary to recognize customer/meter growth through December 2003 to achieve proper matching of net investment and customer/meter levels. The Company was asked to provide the monthly number of customers/meters by distribution and pipeline rate schedule for the period December 2002 to date? The Company failed to provide this information. Other Issues The Company's GRIP filings contain significant increases in distribution and pipeline plant investments. For example, FERC Accounts 301-303, Intangible Plant, increased $2,992,783 or 75.28% in 2003. The Company's filing contains no explanation of why these large increases are reasonable and necessary. Conclusion Based on my review of the Company's GRIP filings, the Company has failed to justify its proposed distribution interim rate increases. The distribution numbers for customers/meters are shown on Schedule B, lines 22-24, and the changes in customer/meter charges are shown in Schedule A, hnes 21-23. The pipeline numbers for customers/meters are shown on Schedule B, lines 21-22, and the changes in customer/meter charges are shown in Schedule A, lines 20- 21. Company responses to ATM 2-2 and 2-7 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET May 3, 2005 Planning and Development Department Jon Fortune, Assistant City Manager SUBJECT: ADP05-0001 (Anderson Merchandisers) Consider adoption of an ordinance concerning an Alternative Development Plan for tree canopy coverage for a distribution warehouse on approximately 30 acres located in an Industrial Centers Employmem (lC-E) zoning district. The property, commonly known as 2900 Airport Road, is generally located west of I35 West and north of Airport Road. The Planning and Zoning Commission recommends denial (5-1). BACKGROUND Applicam: Robert C. Schneider DeNon, Texas The purpose of an alternative development plan is to provide an option for developments that do not meet the site design standards in the Development Code and that meet or exceed the objectives of the DeNon Plan and Developmem Code. The applicant is proposing to vary from the site design standards regarding tree canopy coverage. The zoning district determines the landscape and tree canopy requirements. Developments in the Industrial Cemers Employmem Cemer (lC-E) district require 20% landscape area and 20% tree canopy coverage. The applicant is proposing approximately 10.12% tree canopy coverage and 21.43% landscape area. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commission recommends denial (5-1; Commissioner Roy opposed, Commissioner Guzman-Ramon abstained). ESTIMATED PROJECT SCHEDULE The subject property is preliminary and final platted. A building permit for the expansion was issued on September 30, 2004. Target completion date is late spring / early summer 2005. PRIOR ACTION/REVIEW The following is a chronology of ADP05-0001: April 13 2005, the Planning and Zoning Commission recommends denial of an Alternative Development Plan for tree canopy coverage for a distribution warehouse. Ordinance 2002-040, adopted February 2002, placed the subject property in the IC-E zoning district. Prior to the adoption of the Development Code (Ordinance 2002-040), the property was zoned (LI) Light Industrial. ATTACHMENTS 1. Staff'Analysis 2. Location Map 3. Code Compliant Landscape Plan 4. Alternative Development Landscape Plan 5. Site Photos 6. Applicant's Letters with Landscape Exhibit and Photos 7. Planning & Zoning Commission Meeting Minutes, April 13, 2005 8. Draft Ordinance Prepared by: E Nona Elaine Muncie Landscape Administrator Respectfully submitted: Kelly Carpenter, AICP Director of Planning and Development ATTACHMENT 1 Staff Analysis Summary of Alternative Development Plan Request Landscape and Tree Canopy Requirement Table: Section 35.13.7 states that the zoning district determines the landscape area and tree canopy requirements. The applicant is proposing to plant less trees than previously approved on the code compliant landscape plan submitted for Building Permit approval. At the time of Building Permit application submittal, applicant notified staff of his intent to request ADP approval to plant less trees on site. Instead of planting 141 trees, the applicant is proposing to plant 51 trees. The table below identifies the required and proposed tree canopy coverage. Payment into the Tree Fund in lieu of on-site planting is based on the fair market value of materials and labor at the time of planting and the reasonable estimated cost for maintenance and irrigation for a period of 3 years. For 2005, the cost per tree has been established at $250 for a 2" caliper tree. $250 x 90 trees = $22,500. Required Proposed Difference Site tree canopy coverage 20% 10.12% 9.88% 4- decrease Site landscape area 20% 21.43% 1.43% 4- increase Existing Condition of Property Adjacent zoning: North: IC-E South: IC-E West: IC-E East: IC-E The subject property is currently developed as an existing distribution warehouse. Comprehensive Plan Analysis The subject site is located in an Industrial Centers future land use area. Industrial Centers are intended to provide locations for a variety of work processes and work places such as manufacturing, warehousing and distributing, indoor and outdoor storage, and wide range of commercial and industrial operations. The industrial centers may also accommodate complementary and supporting uses such as a convenience shopping and childcare centers. Adequate public facilities shall be a criterion by which zoning is granted. Development Code/Zoning Analysis The proposed plan deviates from the tree canopy requirements established by the Development Code. Section 35.13.5.A. identifies the criteria for approval of an Alternative Development Plan. A. Criteria for Approval. The goals and objectives which must be met, and by which the proposal will be judged are: 1. Preserve Existing Neighborhoods. 2. Assure quality development that fits in with the character of Denton. 3. Focus new development to activity centers to curb strip development and urban sprawl. 4. Ensure that infrastructure is capable of accommodating development prior to the development occurring. Staff Findings: 1. The proposed alternative development landscape plan will provide an attractive treescape along Airport Road. The existing landscape is well maintained year round. 2. Warehouses require relatively large, unobstructed paved areas for truck maneuverability. Staff agrees with applicant that the area dedicated for future warehouse expansion should not be planted for this phase's tree canopy requirement. 3. The proposed development is located in an Industrial Centers Employment zoning district. Staff agrees with applicant that surrounding similar businesses have fewer trees than the current Anderson Merchandisers. It is important to remember the surrounding businesses were built under a different landscape code. 4. The applicant is able meet the requirements of the code as demonstrated in the approved Building Permit landscape plan. Staff does not agree there is an insufficient amount of root space for the trees along Airport Road. Staff does recommend replacing the 14 new Live Oaks to be planted as street trees along Airport Road with 14 shorter growing trees with a maximum mature height of 20 feet. Planting Redbuds or Ornamental Pears adjacent to overhead electric lines minimizes the tree pruning / line conflicts that results in larger trees such as Live Oaks being planted beneath lines. 5. Other than offering to plant 1.43% more landscape area than required, the proposed landscape plan does not offer any alternative compromises to exceed the design objectives for approval of an alternative development plan. 6. The proposed reduced tree canopy and the applicant not utilizing his option of making a payment into the Tree Fund in lieu of on-site planting does not meet the intent of the regulations of the Denton Development Code. Staff Recommendation: Based on above findings, staff recommends denial. ATTACHMENT 2 Location Map NORTH NR-2 SITE 5 SIN]bJ]AO2d[,~I ]dVDSrJN~q v Attachment 5 SITE PHOTOS P,e,t,e,r, an & Associa,tes, Jnc. LANDSCAPE CONSTRUCTION , MANAGEMENT' EROSION CONTROL March 17, 2005 Nona Elaine Munci~ - Landscape Administrator City of Denton City Hail West 221 North Elm Denton, Texas, 76201 RE: ADP · Anderson Merchandisers · 2900 Airport Road · Denton, TX This letter serves as the response to the Development Review Comments dated February 25, 2005 dan M#che#a Horticndturist Project Manager Water Sewer W1. Fence on east side of property will need to be moved out of water line easement. Response: The fence on the east property line is along the property line not in their easement. This is Addressed in construction drawings. W2. Gates will need to be installed in north fence line for access at locations where the fence line crosses the public utility easement. Response: Anderson Merchandisers will install a gate to allow access to the water line easement W3. Expansion &the building will require the abandonment of the 6" line that currently runs behind the north end of the building. A new water line will need to be extended to make a complete loop around the expanded building. Response: Addressed in construction drawings. W4. No new trees are permitted in the public utility easement. Response: Due to lack of alternate planting areas trees will need to be planted in this area. Trans-A No comments Real Estate No comments Parks No comments Landscape L1. Building Permit 0405-0194 was issued on 9-30-04. Applicant is requesting relief from the 20% tree canopy requirement. L2. ADP is tentatively scheduled for March 23rd P&Z meeting. L3. Staffwill recommend ADP approval with the following 3 conditions: a. A payment will be made into the tree fund in lieu of planting the total number of trees required to meet the 20% tree canopy requirement. The amount of the payment will be based on the fair market value of the trees and labor at the time of planting and the reasonable estimated cost of maintenance and irrigation for a period of 3 years. P.O. Box 531807 · Grand Prairie, TX 75053 · Pholae 972/263-3500 · Fax 972/642-8850 Pctcrman & Associates Page 2 of 2 b. Project manager will work with the applicant to agree upon the number of trees and the cost of the trees to be used for calculations for the amount to be paid into the tree fund. This amount will be agreed upon prior to setting the P&Z date. c. The proposed new Live Oaks are replaced with a smaller growing species as noted in DME comments. _Response: A sufficient amount of planting space is not available for the trees required in the code. The areas dedicated for future development should not be planted since the plant material may be demolished during future construction. Currently those spaces are open green space. This is demonstrated in the landscape exhibit dated 3-17-05. The surrounding similar businesses are landscaped far less than the current Anderson Merchandisers site. This is demonstrated in photos attached dated 3-17-05. Anderson Merchandisers is proposing to increase the landscape of the current site as demonstrated in the original ADP submittal plan. The proposed landscape increases the maintenance cost for Anderson Merchandisers well above that of the surrounding businesses. Paying into a tree fund also adds economic burden that contradicts Anderson Merchandisers ability to be a low cost provider of goods. It is importani to Anderson Merchandisers that the city in which it operates facilitate its ability to be a low cost provider. Therefore Anderson ' ' Merchandisers asks that the proposed plan be approved 'as is and that the burden of paying into the tree fund be relieved. L4. Submit 5 sets of revised drawings for review. Revisions should be folded to 8 ~ x 11 size with the bottom right hand comer showing. Review of revisions will require a maximum 5-day staff review time. L5. A cover letter, addressing each staff review comment individually, must be provided in order for re-submittals to be accepted for Commenting Department review. The cover letter must include the following information: restate each comment posted by staff; respond to each comment with a description of the revision(s) made to satisfy the comment and the page where the revision(s) may be located; identify any additional changes/revisions made to the document, other than those required by staff, or a statement should be provided that "no additional changes have been made." If a cover letter is not provided, or fails to include the required information, the re-submittal will not be accepted. Please contact me if you have questions concerning these instructions. Fire - No comments Electrical DME 1 :The landscaping plan shows Live Oaks being planted next to the existing overhead electric line in 1515 right-of-way. DME objects to the planting of large trees near overhead electric lines.that will eventually have to be trimmed Response: Live Oaks were proposed to be planted in this area to increase the shade coverage desired by the City of Denton. Ornamental trees will not provide as much shade as on ornamental tree. Submitted by: ~on Mitchell--' Project Manager P.O. Box 531807* Grand Prakie, TX 75053 · Phone 972/263-3500 · Fax 972/642-8850 Anderson N~erchandisers Other Airport Road Properties i Peterman & Associates, Inc. LANDSCAPE CONSTRUCTION * M~NAGEMENT * EROSION CONTROL don Mitche#a Horticulturist Project Manager January l9,2005 Planning and Development Department City of Denton City Hall West 221 North Elm Denton, Texas, 76201 RE: ADP · Anderson Merchandisers · 2900 Airport Road · Denton, TX To whom it may coricern: This letter serves as a request for an Alternative Development Plan for the landscape requirements at Anderson Merchandisers. The request is based on the following reasons. 20% shade requirement is too high for this type of site use. In order to remain competitive, distribution centers must utilize the property so that revenue generating space is maximized. Reserving 20% of the site for shade trees does not allow for efficient property use. The alternative is to plant the same number of trees closer together to meet the cities tree quantity requirements. This alternative planting of trees so that the canopies touch will create so much shade that tuffgrowth will be inhibited leaving exposed soil. This is not only unsightly it also increases soil erosion. It is our understanding that there have been others to dispute the 20% shade requirement. During the 1998 construction the landscaping was in compliance with the code. The code has changed since the 1998 construction. Expansion of the building is causing the entire site landscaping to meet the new code criteria not just the expanded area. Anderson Merchandisers has been proactive in saving existing trees in current landscaped areas. In fact the medians in the parking lot were widened in order to save these trees. No trees were removed for the expansion. The entire expansion is being built on land that contained no trees and was not a part of the existing landscape-irrigated area. Anderson Merchandisers is one of'the top industrial projects in Denton. It is an asset for the city to showcase in recruiting new tax generating companies to locate in Denton. Anderson Merchandisers has always maintained the site in excellent condition and is committed to doing so in the future. P.O. Box 531807 · Grand Prairie, TX 75053 · Phone 972/263-3500 · Fax 972/642~8850 Peterman & Associates inc. Page 2 of 2 The south side of the building faces FM 155 with 400 linear feet of the building facing the street, the north side faces an open field. The east and west sides of the building have 1,000 linear feet that faces a rail line to the east and a creek that is lined with native vegetation and trees to the west. The proposed plan will doubie the shade of the existing landscape while the building will only be expanded by 38%. The Denton Development Code 35.13.5 list four criteria for Alternative Development Plan approval. The project is an expansion of a distribution facility in an existing distribution district. The proposed plan meets the all of the criteria of preserving existing neighborhoods, assures quality development that fits into the character of Denton, focuses new development to activity centers that curbs strip development and urban sprawl, and the infrastmcture is capable of accommodating the development. We propose to increase the tree count on the property to accommodate additional shade but also allow a heartily stand of turf. The proposed plan also increases the curb appeal of the site. It is our opinion that this proposed plan addresses the City's desire to increase shade, maintain curb appeal, and address the competitive market concerns of Anderson Merchandisers. Thank you for your consideration. Sincerely, Xl~roject Manager P.O. Box 531807 · Grand Prairie, TX 75053 · Phone 972/263-3500 · Fax 972/642-8850 CondenseltTM 1 2 3 4 $ 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 $ 6 7 8 9 lO 11 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 Page 3 PROCEEDINGS COMMISSIONER STRANGE: I'll open the April 13th meeting of the Planning and Zoning Commission. There is a quorum of members present and I would like to ask you to join with us in the Pledge to the flags. (Thin,upon, the Pledges of Allegiance were recited.) COMMISSIONER STRANGE; Tile next il~lll on the Agenda would be consideration, approval of the minutes of the March 23rd, 2005 meeting of the Planning and Zoning Conmfission. Do I have a motion? COMMISSIONER WATKINS: MOtion to approve as read. COMMISSIONER HOLT: second. COMMISSIONER STRANGE.. I have a motion by Mr. Watklns and a second by Mrs. Holt, Please vote. Vote passes 6-0. And I will point out that it does have Ms. Elmna Gouzman-Ramon listed tonight as a Conmfissioner. She will be our new P and Z Commissioner that will come in to fill a term, but she has not yet been sworn in. We thought she had, but she had not, so she will be in attendance tonight as an observer and will not be voting. The next item on the Agenda is the Consent Agenda. All items listed on the Consent Agenda have been reviewed by the Planning and Zoning Cmmnissioners prior to Page 2 tonight's meeting in a work session and each Cmmnissioner has had an opportunity to ask any questions of staff that they have on the Consent Agenda items, and we will vote for all of those Consent Agenda items at one time. Do I have a motion on the Consent Agenda? COMMISSIONER HOLT; I move approval. COMMISSIONER WATKINS: second. COMMISSIONER STRANGE: I have a nmtion by Ms. Holt, and a second by Mr. Watkins. Please vole. And tile vote passes 6-0. The next itmn is an individual consideration and is a consideration of an Alternative Development Plan for tree canopy coverage for distribution warehouse on approximately 30 acres of land located in an Industrial Center's Employment Zoning District. Ms. Muncie will be making a presentation. MS. MUNCIE: Good afternoon. I'm Nons Elaine Muneie. Pm the landscape achninistrator. And I'm also the project manager for this case. Anderson Merchandisers is proposing to vary from the required 20 percent tn:e canopy coverage. The applicant is proposing to plant approximately I0.12 canopy coverage. JOE Mitchetla, the project manager, re-presenting the applicant will be able to speak on behalf of the Anderson Merchandisers. 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 l0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 To smmnarize the infommtion that's available in yom' backup, this is the site. This is Anderson Merchandisers. Here to file left -- here to the right is Peterbilt, and this is Victor. And these are the tr~rr Facility Maintenance Buildings. The zoning determines the landscape and thc tree canopy coverage. ~ce ~v.4uircs 20 percent landscape area and 20 percent tree canopy coverage. Anderson Merchandisers is proposing to exceed the landscape area requirement by 1.43 percent but reduce the tree canopy coverage by 9.88 pea'cent. Anderson Merchandisers is proposing to plant 90 fewer trees than required by code. This is the building permit landscape plan. Thc owner and the developers, they met with City staff early on during the construction plan review to discuss the tree canopy requirements for the warehouse expansion. The owner decided to submit a code compliant landscape plan in order to pull the building permit and advised City staff at that time they would be requesting relief from the planting of the 20 percent canopy requirmnent. And that's why we're here today. This plan shows 141 trees and this plan shows 51 trees. This is tile Alternative Development Plan. The applicant is proposing to plant a single row of trees Page 4 in between file existing Live Oaks. The open circles that you see are tile -- are the existing trees and the shaded-in circles are the trees, the new trees to be planted. And the main diffea,ence between the building permit plan and the ^m' plan ave the trees along Airport Road and then the trees along the entrance to this drive that wraps all around the warehouse to the docks. To prevent planting future problems, City staff is encouraging shorter trees along hen: to fill in with a row of Live Oaks. Instead of planting Live Oaks, the staff reconunends a tree with a maximum mature height of about 20 feet because you don't want to plant tall trees that have a potential of growing into the lines. In conclusion, the staff findings arc that Anderson Merchandisers has an existing landscape that is well maintained year-round. This is the entrance to Anderson Merchandising. These are the trees along Airport Road. Warehouses need large, unnb~tructed paved areag to maneuver the large trucks. This grass area right here is where the new street trees will be planted. And City staff feels that there's adequate room to plant new additional trees here and it will not conflict with the truck traffic or the utility lines. This is the expansion of the warehouse. PLANNING AND ZONING MINUTES APRiL 13, 2005 Page 1 - Page 4 CondcnscltTM 1 2 3 5 6 7 l0 Il 12 13 14 5 .7 20 21 22 123 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 t9 2O 21 22 23 24 25 Page 5 Victor and Peterbilt and the existing Anderson were all built under a previous Code that required less trees, but any expansion that is over 50 percent which would be the entire site to be Code compliant, The applicant is able Io meet the requirements of tile tree canopy as demonstrated and submitted in their building permit, landscape plan. Other than planting 21.43 percent landscaped area, instead of tile required minimum 20 pm'cent landscape area, the proposed landscape plan doesn't offer any alternative compromises to meet the design objectives for the approval of an ^m'. The applicant is also not utilizing his option of making a payment into the tree fund in lieu of the on-site plantings. And based on tile above information, staff is recommending denial of this ADP. I'll be happy to answer any questions. COMMISSlONERgTRANGE: DO~S anyone have any questions to add? Mr. Roy. COMMISSIONER ROY: what is the approximate amount of money for the alternative, to pay into the tree fund? MS. MUNCIE: $22,5'00.00. It'S based on the cost per nee and file 90 trees figured at $250.00 is the $22,500.00. Page 6 COMMISSIONER ROY: Thank you. COMMISSIONER STRANGE: Any Other questions? MR. MUNCIE: Mr. Mitchella will Colne and speak on behalf of Anderson. MR. M[TCHELLA: My name is Jon Mitehella. I work for Petennan & Associates. We are the landscape contractor for Anderson Merchandisers. We installed the initial landscaping. COMMISSIONER STRANGE: Can we have your address, please? MR. M[TCHELLA: Pardon7 COMMISSIONER STRANOE: YOUr adch~ess as well, please. MR. MITCHELL, A: It's 3001 East Avenue K in Grand Prairie, Texas. COMMISSIONER STRANGE: Thank you. MR. MITCHELLA: We Were the landscape contractor that installed the initial about eight years ago and we have maintained the property since its inception, and there is a comnfitment by Anderson Mm'chandlsers to continue fl~¢ nmintenanc¢ as we have done so far. The reason that they're asking for this ADP is Anderson feels that tile requirements for tile trees is too high for the type of business that is locatext there. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 lg 19 20 21 22 23 24 25 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 7 And since there's -- the surrounding areas is not residential, it's alt conm~ercial and is all warehouse, they just feel that the 20 percent is too high, and they're asking for the reduction. And that the cost associated with that cost is too high for them, also. They're also a Iow cost provider, and flint they have to maintain that to be competitive. One of tho things we did when we planted on that slope originally, and one of the problems we have and another reason we would like not to plant there is that is almost solid rock, and it was very difficult planting them. We were able to do it. We had to get rock picks out there to dig into it and then add a lot of soil amenchnents to do it. Planting more trees in that area is just going to complicate the competition between trees, making it more difficult for the water -- water situation there to be maintained for both sets of trees, that we've doubled the nmnber of tree~ in that area. It also -- planting that many trees in that area we believe will limit the ability of the turf to stay healthy, and then you'll end up with a sparse turL which is not very desirable in its appearance for the future. And the little bit of soil we do have there could be eroded away at that point once you begin to lose thc turf, it just will not be held in place. Page 8 In tile planning, they did make sure that they did not remove any trees from the site that were existing that we did plant. The parking lot was actually reconfigured at one point to save the trees in the islands that were existing in the parking lot. And so we'd like to take that into consideration. There were also no trees removed for the expansion of this property, also. So any tree built on this property -- or any tree planted on lhis property is in addition to what was there at any time. The other thing is since the ^DP COlnn~¢tlt$ -- COlmnOnts came back after the plan was originally approved. They said they ~mlly don't want the trees planted in that easeanent because el the power lines. So it sccrns to them that, you know, we would be wilting to go with the smaller trees, howcvcr~ it's kind el a win-win situation since the City particularly doesn't want the trees there. We might as well plant about half of what was there originally and what is proposed in the original plan based on the staff comments itl the And as far as paying to the tree fund, Ander~on already l~ay~ approximately a million dollars in taxes a year into the City and to other taxes. And they just feel that that is more than enough. And another $22,000.00 just seemed exorbitant to them, in their opinion, on that. And that's -- pretty much is our PLANNING AND ZONING MINUTES APRIL 13, 2005 Page 5 - Page 8 CondenseltTM I 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 7 8 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 t4 15 16 17 18 19 20 21 22 23 24 25 Page 9 standpoint. I do have one presentation show, This is the site. It shows it colored on there. And it does show the green areas versus the pavement. You can see the site is primarily pavement, what they're going to have on there. And so there's just not a lot of room to add a lot of trees in the back, especially since that is futm~ development. They don't want to be back there because they don't know what that's going to become. But they have maintained green areas iu as ninny areas as they Call. And as far as planting any t~ees along these areas, it becomes a problem with trucks backing into those alms and also, as those canopies begin to grow over into them, then they have to be hedged across, and it's not -- just doesn't work well. Same situation occurs over here along the driveway where you just -- there's not room to plant there either. In the futura development, they don't waut to plant because they don't know whaCs going to happen. So tile only place left is along that area right them. And that presents the other problems that I've previously discussed. Is there any questions? COMMISSIONER STRANGE: Mr. Watkins. COMM£SSIONER WATKINS: Thank you, Mr. Chair. You say the -- are there any trees there that were Page 10 original before any buildings were built? MR. M1TCHELLA: There are some trees that were saved along the frontage and they were right -- right in this al'~a. There's a group of existing t~ees right now. As far as the rest of tile site, I don't believe there were, but I'm not 100 percent sure about that. COMMISSIONER WATKINS: Th~'s a good bit of prairie not far from that across file interstate at least? MR. MITCHELLA: Right. COMM[SSIONERWATKINS: okay. And so it's your contention then that the white stone that's just under the black clay is a major factor in this? MR. MITCHELLA: It really is. It is very difficult to plant in that, get those trees -- that stone -- tile tree just doesn't want to grow there. We can get them to with enough time. But the cost of doing that is quite high because you just have to increase its root size and it's just a very difficult situation. And when you plant that many trees in a different situation, the competition among trees becomes an issue, also, of trying to keep them all healthy. COMMISSIONER WATK1NS: okay. The picture I saw a while ago, the began up here to be something that had been breught in. That didn't look original elevation, so 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 .18 19 20 21 22 23 1 2 3 4 5 6 7 8 9 10 iI 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 24 25 Page 11 to speak, the smaller trees. They're real nice -- MR. MITCHELLA: Right. COMMISSIONER WATKINS: -- but that's not the native trees in that atm. MR. MITCHELLA: We did add trees in that area. And those are the ones we had to dig into thc rock to get those to live. And they have grown at a much slower rate than we normally would expect in the trcc -- in that eight-year period that we non, ally do. The native trees, there are a few up around the sign, right up around this ama, there's just a few native trees that are still there. COMMISSIONER WATKINS: okay. But you're the landscape person so you would know how much dirt you had put in on thc initial as well as this? MR, MITCItELLA: correct. COMMISSIONER WATKINS: Thank you so much. MR. M[TCHELLA: ut-huh. COMMISSIONER STRANGE: Mr. Roy. COMMISSIONER ROY: I have a question for staff if you wouldn't mlnd just hanging on a minute to -- actually two questions for staff. Somebody at staff. Approximately a year or so ago, we repl'esentexl anothca' warehouse case. I recall it being Russell Newman on McKinney Avenue. And that was before thc tree ordinance PLANNING AND ZONING MINUTES APRIL 13, 2005 Page 12 was enacted, but there were some issues there and ~ve made some concessions there. So could you remind me what concessions we made in that case? MS. MUNC1E: The Russell Newman ^De came on February the 25th, 2004. It was in an ECl zoning district that requires 15 percent landscape and 30 percent tree canopy coverage. The applicant was requesting to go down about 50 percent. And staff recommended denial, P & Z approved it 5-2. And City Council approved it 7-0. COMMISSIONER ROY: All right. You quo~ed several amnbers there. Put that in conu~xt with what Anderson is asking for. MS. MUNCIE: Russell Newlnan was asking to decrease their tree canopy coverage, about 50 percent and it came to P & Z and P & Z approved it 5-2 and then City Council approved it 7-0. And it was approved to plant fewer trees at Russell Newman. COMMISSIONER ROY: okay. One olher question. In file items we're going to be discussing later~ there was about -- Code concerns, there was an item that says that the Council has raised concerns about our landscaping requirements for warehousing situations~ Could you tell inea little bit more about what Council is concerned and what they're thinking. MS. MUNCIE: t can't speak to that. Larry Page 9 - Page 12 CondenseltTM 1 2 4 5 6 7 8 9 10 1 2 13 [4 15 16 17 18 19 2O 21 22 23 24 25 t 2 3 4 5 6 7 8 9 10 1 12 13 4 15 16 17 18 19 20 2i 22 23 24 25 Page 13 will. COMMISSIONER STRANGE: Mr. ReicNlart. MR. REtCHHA_RT: Thank you. That concern was raised after thc Russell Newanan case. And the issue was to take a look at our industrial standards to see if they were requiring too much tree canopy for industrial sites basically. COMMISS£ONER ROY: ^nd we haven't quite got around to that? MR. RE[CHHART: We have not gotten to it. COMMISSIONER ROY: Yeah, okay. Thank you. May I ask one mom question now of the applicant? COMMISSIONER STRANGE: Yes, sir. COMMISSIONER ROY: The way I understand yom' plan, you're going to be extending -- well, I guess, to the nor/h really; is that fight? This is upside-down a little bit, perhaps? MR. MITCHELLA: Right. COMMISSIONER ROY: IS this like the end of your expansion? Have you come to the end of your property lioe or is this just -- MR. MITCHELLA: Tile expansion right now is this area right here. That is the current expansion. Future expansion will come all of the way out to here. COMMISSIONER ROY: SO there's something in Page 14 tile works for later? MR. MITCItELLA: Possibly. It's not 100 percent. It just depends on their needs. COMMISSIONER ROY: okay. Thank you. MR. MIICHELLA: Pall of what -- ours is about a 50 percent reduction in the trees which is file same as the previous ^DP that has been discussed, too. COMMISSIONER ROY: Thank you. COMMISSIONER STRANGE: Dr. Noble, COMMISSIONER NOBLE: ~haak you, Ma'. Chairman. My question is, how do you determine the reduction, the requirement is 20 percent, the tree canopy and 20 percent on tho landscape arcs, and the proposed is 10.12 percent on the tim canopy coverage and then 21 -- so an addition 1.43 on tile landscape. How did you determine those numbers and are those -- I think that's a significant reduction and are those nmnbers based on what you discussed about the root system of tile t~ecs? MR. MITCHELLA: what we were doing since we were successful growing tile tn:es in a straigbt mw, that we just wanted to continue that same row. We didn't want to put a double row, which is what the off:er plan does show on that. We feel that we can be successful doing that. And so -- but a double row is what we have our concerns about. 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 PLANNING AND ZONING MINUTES APRIL 13, 2005 Page 15 COMMISSIONER NOBLE: SO with the straight row, I guess -- MR. MITCHELLA: well, a single row. It's really not a straight row, a single row. COMMISSIONER NOBLE: Or a single row, basically, you're filling that single row will get you that 51 trees? MR. MITCHELLA: correct. And we're also adding the trees over here and the interior, also. COMMISSIONER NOBLE: Okay. And my second question is, do you have the sm~xe type of potential problems that you're describing with the landscaped area as you do with the trees? And the reason why I'm askin that is, you know, you're proposing to add -- to increase the requirement for the landscape. I mean, is that problematic for you or not? MR. MITCHELLA: NO, it's not. And the reason is the 21 percent or excuse me, whatever that percentage is. I don't know right now. It's pretty much the turf area, so we're not really expanding the existing turf area. That's already in place. The landscape that is increasing are these islands that are out here in the parking lot, and so those will be excavated and will be able to be brought up to curb level, so you'll have considerable mnount of soil in those areas. So we don't Page 16 anticipate the problems there. COMMISSIONER NOBLE: Thank you. COMMISSIONER STRANGE: Any other questions? I have just one I want to clarify. Looking at our two exhibits we have in our backup, we have one that's marked the building pm'mit landscap~ plan, which I think we've shown earlier and it does show like doubling up the trees along Airport Road. MR. MITCHELL^: Right. COMMISSIONER STRANGE: But then it also shows a continuous line of re:es running north from Airport Road on the west side of the property. And I thought I understood you to say you-all did not want to put those there because tile tracks backing up would knock those down? Was that your comment? Right them~ MR. MITCHELLA: which ones'? Which trees are you considering? COMMISSIONER STRANOE: well, at the top. At the top of the graphic there you've got one, two, Itu'ce -- you've got about six trees showing up there, and then your building plan set showed that that row of trees would continue all the way to the back of thc building. MR. MITCHELLA: That row of trees would nol be a problem right them simply because the trucks will just be entering right thcn'e and we've got a little bit of Page 13 -Page 16 CondenseltTM 1 2 3 4 5 6 7 8 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 Page 17 room, we can back the trees up. So the track should not be maneuvering in there other than entering and exiting the propm~. COMMISSIONER $1RANOE: well, then I guess that's my question. I'm looking at how we get as far towards what we need to regarding the Code, and I donrt know, them must be 35 or 40 trees that are shown on this building permit landscape plan -- MR. MITCHELLA: ooing down. COMM[SS£ONER SIRANGE: -- going all of tile way to the back of the building. And you've stopped them up there at the front. Yeah, all of those are going across the top of thc graph. MR. MITCHELLA: Ihat's because the property llne actually comes in closer to the track lane right there, and thatrs where we'll have the problems with file canopies to the trees going into tile trick -- COMMISSIONER STRANOE: Going up over tile top of the road? MR. MITCHELLA: correct. V~lero as lip top, we have a little mom room in thc property line. We can move those trees back. so that that would not be a problem. COMMISSIONER STRANGE: But I guess when yon did your building permit, you didn't contemplate that was 11 12 3 .4 15 16 17 18 19 20 21 22 23 24 25 Page 18 going to be a problem? MR. M[TCHELLA: They simply were putting trees anywhere they could possibly put trees, just to get the quantity for those requital. COMMISSIONER STRANGE: who is they? MR. MITCHELLA: Tile landscape architect, COMMISSIONER STRANGE: IS that you? MR. MITCHELLA: NO~ That was another company. Living Design Group, and they were just simply trying to fit the tt~ccs on-site, anywhere you could possibly fit it just to get file building pcrnfit, knowing that they would try for an nde. COMMISSIONER STRANGE: Right, Well, I'm a tree person, so, you know, I'm always for trees, but I also like to think that your common sense prevails somewhm,e. And just doubling trees and tripling trees to get a canopy may or may not be the best long-term solution. I can somewhat agree with flint. But I'm also looking at how we get close to doing something along the lines that the ordinance calls for. So you don't feel like tl~at's practical at all to consider any more t~,ees out them. Have you looked at different types of trees tha~ maybe wouldn't put out as much canopy, but would still give some sort of a green visual affect across that west property line? 1 2 3 4 5 6 7 8 10 11 12 13 14 t5 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 19 MR. MITCHELLA: It is possible that you could plant maybe a Crape Myrtle or something there. It would lessen the affect. It still could be over time. The property line is very close to that drive and so eventually any tree you plant there just about is going to hit, hit the trees. But it would definitely be -- a smaller tree would help in that situation. COMMISSIONER STRANGE: Have you-all considered that? MR. MITCtIELLA: They have. Anderson Merchandisers just fee[ that that again is part of the costs associated with all of those trees for the type of business they are that they would rather not do that, They just feel it keeps them from being competitive. COMMISSIONER STRANGE: well, you know, I'd say there's a lot of things a lot of us would like to not do, sir, but we comply with the Codes and so I'm just trying to see if there's any sort of a ground to get to that can help us as Cmmnissioners help you get what you want, but help staff get what they would like to have. And I'm just asking what alternatives there could be there in any type of vegetation that could get us closer to the canopy -- and I th/,nk part of what we're looking at, too, is the affect of greenery along thosc ways instead of just a bleak driveway. PLANNING AND ZONING M1NHTES APRIL 13, 2005 Page 20 MR. MITCHELLA: Right. Well, tile visual right them from thc road, that is not visual because of the way the City actually -- or tile way this building sits down actually in a hole right thence, so it's not visible from Airport Road. And on that other side of the property line, you actually have a creek right there which is very heavily vegetated down in that creek of just native trees. So ifs not as you drive there, it's not just a baron field. It is actually a greenbelt. And 1 don't believe that property adjacent is really developable because it is a drainage" COMMISSIONER STRANGE: Have you looked at pushing the trees all of the way back to the property line then since they won't be encroaching on someone clse's land? MR. MITCHELLA: They very well could be encroaching -- their canopies would bc encroaching on the adjacent property. COMMISSIONER SIRANOE: well, I understand that, but I was talking about the planting surface, to help alleviate the canopy overhang over the strcct, MR. MITCltELLA: I'm sorry. Now, what was the question there? COMMISSI[ONER STRANGE: Have you looked at shifting the trees all the way back to the property line Page 17 - Page 20 CondenscltTM 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 21 to plant them to give you more room for the canopy overgrowth over the road? MR. M1TCHELLA: we have looked at that and there's just very little room. The reason we chose Live Oaks is because you get the most canopy credit for that type of tree to get to the Code. Had they used a smaller tree, they would have had to plant considerably more quantity of t~x:es to get there. And that's why Live Oaks wea'e done. You could move them back, but you still eventually would have that same problem. Therers just not a lot of space between file property line and that parking or that drive. But a Crape Myrtle or something along that line would be more doable than a Live Oak, however you still don't get your canopy requirements by doing that. COMMISSIONER STRANOE: I understand, but it helps move toward the intent. MR. MITCHELLA: SUre. COMMISSIONER STRANGE: MrS. Holt. COMMISSIONER HOLT: Yes. Considering that you would have to plant a significant amount of trees and you were talking about having to drill tln'ough the rock, and I know that's very expensive. MR. MITCHELEA: Right. COMMISSIONER HOLT: It seems like the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 2t 22 23 24 25 Page 23 Page 22 mitigation for you at $22,000.00, which would be a payment in itself, file end, would be the nmst econolnical all the way around. MR. MITCHELLA: uh-huh. COMM1SS£ONER HOLT: I mean, even over plantit~g the trees versus not planting the trees. MR. ~ITCHELL^: Right. Anderson Merchandisers l~ls that the $22,000.00 is something they should not pay considering that they do pay the million dollars ah'cady in taxes, that that's just over and above -- the City, you know, has more than enough of their money is really how they're looking at that. It's just a ' considerable amount of money and the amount of people they employ there, that goes to pay, you know, close to, you know, people's salary. COMMISSIONER HOLT: well, I think we have to consider, too, that all of our businesses here in town have to keep in mind that the trees not only are beautiful, but they help our -- clean our air and a lot of things that all of us need here in Denton. And, you know, if we alt work together, we can kind of get to these points. MR. MITCHELLA: Right. COMMISSIONER STRANGE: Dr, Thlbodeaux. COMMISSIONER THIBODEAUX: [, tOO, had 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 concerns about the $22~500.00. And I think I got part of my answer in your response to her. You talk about a million dollars in taxes and then the $22,500.00. Given the kind of considerations that are there, I, too, don't think it's a -- I think it's an amount that you should probably give some consideration to. COMMISSIONER STRANOE: Any other questions of the applicant? Any other questions of staff? Okay. We app~e~ciate your co,inherits. Well, this being an individual consideration, do we have a motion for recolmnendation to City Council? Mt-. Roy. COMMISSIONER ROY: well, I'd like to discuss it a minute here. I drink this is our first case requesting an AOt' or some relief under the new Code, isn't it? I don't remember another tree case coining before us. Ms. CARPENTER; ThO Russell Newman case was such a case. COMMISSIONER ROY: But that was before thc ordinance. MS. CARPENTER: NO, sir. This is on thc tree canopy and the landscaping, not on tree preservation. COMMISSIONER ROY: oh, thank you. That's right. So the Russell Nevmmn was a case -- MS. CARPENTER: ye.~ sir, it was. COMMISSIONER ROY: under a -- and this is Page 24 the same Code? MS. CARPENTER: Yes, sir. COMMISSIONER ROY: okay. Well, I am impacted or I'm concerned about the fact that we have already approved something like this. I believe there was a Iot of discussion in the Russell Newman case. But, ia fact, we did, as a body, approve that. And I think there is some recognition that warehouse applications are somewhat different than a typical office building or a typical thing that we see here. And our Code, perhaps, deesn't properly reflect the uniqueness of the -- the unique nature of a big warehouse. And I think this is reflected by the Council and we're going to be discussing that later on. I'm also influencc4l by the fact that this expansion is back into the property, and it's not along a major roadway. And I think some of the landscaping, our objectives are to have a nice front along a major road. But we have, ia fact, in thc past approved things along this same line conunensurate with wbat we have here now. So for tbese reasons, I'm going to move that we approve or reconnneud to Council to approve the ADP. So 1 make that motion. COMMISSIONER STRANGE: DO We have a second? I hear no second. So Mr. Roy, I think your motion dies PLANNING AND ZONING M1NIYrES APRIL 13, 2005 Page 21 - Page 24 CondcnscltTM 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 l 2 3 4 5 6 7 8 9 10 11 12 13 14 t5 16 !17 18 19 2O 2t 22 23 24 25 Page 25 for lack of second. Dr. Noble. COMMISSIONER NOBLE: I think if we have a w, quirement and we do not meet file requirement or we allow a different proposal that's different than the requirement tonight. And then looking back on what was -- what we discussed in this prior case, then I think what we have to detemfine is do we change requirement, othcn'wise, it's -- there's -- 1 donrt see the benefit in having it. I agree with you that maybe there is a difference when it comes to these warehouse locations. So I personally don't have a problem with the reducing the number of trees, but I think that if we do that and then based on this other case that we're discussing, then we really should look at changing file requirements or we'll be, you know, this will come up again, basically. COMMISSIONER STRANGE: Mrs. Holt. COMMISSIONER HOLT: I illakc a motion to deny the ADP. finished. COMMISSIONER STfLANOE: Mr. Noble. COMMISSIONER NOBLE: oh, I'm sorry. I'm COMMISSIONER STRANGE: DO We have a second? COMMISSIONER THIBODEAUX: SeCOnd. COMM[SS[ONER STRANGE: okay. We have a motion by Mrs. Holt and a second by Dr. Thibodeaux. Any Page 26 discussion? Ma'. Watkins. , COMMISSIONER WATKINS: Thank you, Mr. Chairman. Having some information or history of this property with the stone just under the surface of the ground, I can cerlainly see every reason that they wouldn't want to plant a huge nmnber of trees. Still by the same token, we're talking about 90 extra trees. I hate to hear -- from all I can find out, Anderson is a wonderful neighbor, taxpayer, and so it troubles me a great deal to -- when they say well, we employ people and we pay taxes and so we shouldn't have to do it. I don't think that should really cater into it. By the same token, file staff has recolmnended denial, the tree canopy things that we put before them in the Council. I wish thm~e was some way around it, but I don't see it at this time. I'm going to have to support the motion. COMMISSIONER STRANOE: ^11 right. And I have a similar view. I think my concern is that we submit one plan to get a building permit and although those people arc not still involved or around, but we had a design that met the Code, and now we have a design that's a long way from meeting the Code. And we don't want to pay the mitigation fee. So I find that to be a conflicting deal, in my opinion. 2 3 4 5 6 7 8 9 10 1 2 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 5 6 17 18 19 20 21 22 23 24 25 Page 27 And, also, even though those trees may not be visible would look to me as though there could be some species selected that might could fill in stone spots thal don't create such a big canopy, so l, too, have a bit of a problem with, I think, the way this was handled in presenting one plan for a permit and theu even though, you said you were going to do an Alii', then come back wilh a pretty basic ADP and no willingness at all to discuss alternatives or mitigation, so I think I will be voting against it -- or supporting the motion, be voting against the ADP. Any other cmmnents? Seeing none, please vote. Let me point out you're voting for a motion to deny. So a yes wilt be supporting it. Okay. The vote passes 5-1 with Mr. Roy voting no. Page 28 PLANNING AND ZONING 1MINUTES APRIL 13, 2005 Page 25 - Page 28 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN ALTERNATIVE DEVELOPMENT PLAN ON APROXIMATELY 30 ACRES OF LAND GENERALLY LOCATED WEST OF 135 WEST AND NORTH OF AIRPORT ROAD, COMMONLY KNOWN AS 2900 AIRPORT ROAD, WITHIN AN INDUSTRIAL CENTERS EMPLOYMENT (IC-E) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR THE PURPOSE OF REDUCING TREE CANOPY COVERAGE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; AND PROVIDING FOR. AN EFFECTIVE DATE. (ADP05-0001) WHEREAS, Anderson Merchandisers has applied for an alternative development plan which is on file in the City's Planning Department, a copy of which is attached hereto and made a part hereof as Exhibit "A" (the Alternative Development Plan), on approximately 30 acres of land located in an Industrial Centers Employment (IC-E) zoning district; and WHEREAS, on April 13, 2005, the Planning and Zoning Commission recommended denial of a Alternative Development Plan for reduced canopy coverage; and WHEREAS, the City Council finds that the Alternative Development Plan is consistent with The Denton Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein. SECTION 2. The Alternative Development Plan is hereby approved. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are servable. SECTION 4. Anyperson violating any provision ofthis ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and d/stinct offense. SECTION 5.. This ordinance shall become effective fourteen (14) days fi:om the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper pubhshed 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: EDWIN M. SNYDER, INTERIM CITY ATTORNEY PAGE 2 'i AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: May 3, 2005 Human Resources Kathy DuBose SUBJECT Consider approval of an ordinance of the City of DeNon, Texas, adopting the City Manager's plan for reorganization and reduction in force for the City of DeNon; providing for severance package plan for eliminated positions, providing for transfer of employee's benefit adjustmem to employee's salary; and providing an effective date. BACKGROUND During the long-range financial forecast meeting on April 12, 2005, the City Manager briefed the Council on his proposed budget reductions including the elimination of 51.20 FTEs. Additionally, he briefed the Council on his proposed plan to offer severance and outplacemem services to assist the employees (who are in positions to be eliminated) with the transition. The attached ordinance and exhibit outline the severance and outplacemem services being offered. FISCAL IMPACT There will be a fiscal impact; however, the impact will depend on the number of employees who elect to take the severance options and/or do not remain with the City in another capacity. Any costs will be absorbed through salary savings or other cost reductions in the current fiscal year. EXHIBITS Ordinance Exhibit A Respectfully submitted: Carla J. Romine Director of Human Resources ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ADOPTING THE CITY MANAGER'S PLAN FOR REORGINIZATION AND REDUCTION IN FORCE FOR THE CITY OF DENTON; PROVIDING FOR SEVERANCE PACKAGE PLAN FOR ELIMINATED POSITIONS; PROVIDING FOR ROLLOVER OF EMPLOYEES' BENEFIT ADJUSTMENT TO EMPLOYEES' SALARY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council determined that reorganization should be considered to increase efficiencies and productivity of the City of Denton; and WHEREAS, the City Council finds that it was determined that shortfalls may occur in the general fund 2004-2005 budget year and that cuts would be necessary to ensure a balanced budget for the 2005-2006 budget year; and WHEREAS, the City Manager developed a plan to reorganize and make necessary cuts to achieve a balanced budget, which included the elimination of positions that would reduce the overall workforce of the City of Denton; and WHEREAS, the City of Denton has a Reduction In Force Policy (109.04) that provides for severance and outplacement programs subject to budgetary constraints; and WHEREAS, the City Council finds that the City Manager has developed a program for severance and outplacement programs that are different fi.om the standard administrative procedures, due to budgetary constraints; and WHEREAS, the City Manager as part of the plan, for general fund employees, will rollover the current employee benefit adjustment of 5% into the employee regular salary by increasing the salary by 4% and the remaining 1% will be used as additional cost savings beginning with the 2005-06 budget year: and WHEREAS, the City Council of the City of Denton believes it is in the public interest to adopt and go forward with the City Manager's plan for reorganization and reduction in force: NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City of Denton adopts the plan of the City Manager to reorganize and reduce the workforce and the plan will be incorporated into the budgetary process. SECTION 3. The City of Denton approves the plan of the City Manager to provide severance and outplacement programs, within current budgetary constraints, as provided in Exhibit "A", which is incorporated herein and made a part of this resolution for all purposes. SECTION 4. The City Manager is authorized to expend the funds necessary to carry out the reorganization and reduction in force plan. SECTION 5. This ordinance shall take effect immediately from and after its passage in accordance with the provisions of the Charter of the City of Denton. PASSED AND APPROVED this the day of .,2005. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY Page 2 EXHIBIT A Severance and Outplacement Program This plan will be for those employees who occupy positions that were targeted for elimination in the reorganization and reduction in force process. The program does not apply to positions, which were chosen for elimination due to vacancy or because an employee stated their intention to retire that was unrelated to the reorganization or reduction in force process. Eligible employees will include workers in the targeted positions who were regular full time, regular 3A time, and regular ½ time employees. Temporary and seasonal employees will not be eligible for this program. Option 1. If any eligible employee voluntarily ends their employment on or before Friday July 1, 2005, then this option will apply. The employee along with regular termination pay will receive the Reduction in Force (RIF) tenure pay, which will be calculated according to the administrative directive in policy #109.04 of the City of Denton Policies and Procedures Manual. Employees in regular 3A time and ½ time positions will be paid on a pro rata basis compared to a regular full time employee. In addition eligible employees will be paid for all accumulated sick leave up to 720 hours. Eligible employees will receive longevity pay on a pro rata formula depending upon the date of their departure. Employees who choose this option will remain eligible for employment with the City of Denton should they apply for positions in the future. Option 2. If an eligible employee chooses to remain on the payroll past July 1, 2005 and does not find another position with the City of Denton by September 30, 2005 then this option will apply. The employee along with regular termination pay will receive RIF tenure pay, which will be calculated according to the administrative directive in policy #109.04 of the Demon Policies and Procedures Manual. Employees in regular 3/4 and ½ time positions will be paid on a pro rata basis compared to a regular full time employee. Eligible employees will receive longevity pay on a pro rata formula depending upon the date of their departure. Employees under this option will not be paid for accumulated sick leave. Employees who choose this option will remain eligible for employmem with the City of Denton should they apply for positions in the future. Discretionary payments. The City Manager shall have the discretion to allow payments to an employee who would otherwise be eligible for options 1 or 2 except for a unique circumstance involving the timing of retiremem or due to illness. The City Manager shall consider such paymems upon written request by an eligible employee, physically received before the requisite deadlines imposed by options 1 and 2. The request must contain documentation of the unique circumstance related to the timing of retirement or illness. The City Manager will make a determination within 10 business days of the receipt of the request, unless he grants up to an additional 10 business days for the gathering of any additional information. Exhibit A, RIF Ordinance Regular Termination Pay - This is accrued wages to the time of termination and all accrued vacation up to 320 hours and any accrued compensatory time, if applicable. If an eligible employee finds another regular full-time position with another employer during the time frames of options 1 or 2, the employee will still be paid under the terms of the applicable option. Employee benefits will continue or end based upon the normal practices applicable to the termination of employment. Persons who choose option 2 shall be eligible to apply for other positions within the City of DeNon for which they believed they are qualified (or will be able to become qualified under City policies). Eligible employees who properly follow the procedures and processes developed by the Human Resource Departmem and determined to be qualified for the position will obtain an interview. This process does not guarantee that the person will be hired for any position. The City will provide help to those eligible for unemploymem benefits and will also offer job placemem assistance. Texas Workforce commission (TWC) will hold on-site workshops to help in developing job-huming skills. TWC and the City's EAP provider will also lend assistance to employees in coping with the financial and emotional challenges occasioned by the reorganization and reduction in force. Exhibit A, RIF Ordinance