HomeMy WebLinkAboutJune 21, 2005 Agenda
AGENDA
CITY OF DENTON CITY COUNCIL
June 21, 2005
The City of Denton City Council will convene in the Work Session Room on Tuesday, June 21,
2005 at 5:45 p.m. to attend a reception honoring City Council.
After determining that a quorum is present, the City of Denton City Council will convene in a
Regular Meeting on Tuesday, June 21, 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
A. U. S. Flag
B. Texas Flag
"Honor the Texas Flag - I pledge allegiance to thee, Texas, one and indivisible."
2. Consider adoption of an ordinance canvassing the returns and declaring the results of the
Runoff Municipal Election held in the City of Denton on June 11, 2005; and providing an
effective date.
3. Election of Mayor Pro Tem.
4. Consider approval of a Resolution of Appreciation for Council.
5. PROCLAMATIONS/PRESENTATIONS
A. Proclamations/Awards
B. June Yard-of-the-Month Awards
C. Recognition of staff accomplishments
6. 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 Consent 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 Consent Agenda (Agenda Items A - R). This listing is provided on the Consent Agenda to
allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda.
If no items are pulled, Consent Agenda Items A - R below will be approved with one motion. If
items are pulled for separate discussion, they will be considered as the first items following
approval of the Consent Agenda.
A. Consider adoption of an ordinance accepting competitive bids and awarding a two
year contract for the purchase of water meters for the City of Denton Water
Department; providing for the expenditure of funds therefor; and providing an
effective date (Bid 3311 - Two Year Contract for Water Meter Inventory awarded
to the lowest responsible bidder for each item in the annual estimated amount of
$100,000). The Public Utilities Board recommends approval (3-0).
City of Denton City Council Agenda
June 21, 2005
Page 2
B. Consider adoption of an ordinance accepting competitive bids and awarding a two
year contract for the purchase of electric meters, CTs, and meter sockets for
Denton Municipal Electric; providing for the expenditure of funds therefor; and
providing an effective date (Bid 3332 - Two Year Contract for Electric Meters,
CTs and Meter Sockets awarded to the lowest responsible bidder for each item in
the annual estimated amount of $186,000). The Public Utilities Board
recommends approval (3-0).
C. Consider adoption of an ordinance accepting competitive bids and awarding a
three year contract for the purchase of wood utility poles for Denton Municipal
Electric; providing for the expenditure of funds therefor; and providing an
effective date (Bid 3342 - Three Year Agreement for Wood Utility Poles awarded
to the lowest responsible bidder for each item in the annual estimated amount of
$160,000). The Public Utilities Board recommends approval (3-0).
D. Consider adoption of an ordinance of the City of Denton authorizing the City
Manager or his designee to execute a contract with the Houston-Galveston Area
Council of Governments (H-GAC) for the acquisition of 35, 65 and 95 gallon
refuse carts for the City of Denton Solid Waste Department by way of an
Interlocal Agreement with the City of Denton; and providing an effective date
(File 3350 - Purchase of Refuse Carts in the current estimated amount of
$30,000). The Public Utilities Board recommends approval (3-0).
E. Consider adoption of an ordinance to the City of Denton, Texas authorizing the
City Manager to execute a professional services agreement between the City of
Denton and KPMG, L.L.P for independent audits; authorizing the expenditure of
funds; and providing an effective date (RFSP 3325 - Audit Services awarded to
KPMG, L.L.P in the not to exceed amount of $105,850 for 2005, $105,200 for
2006 and $110,225 for 2007. Fees for 2008 and 2009 will be based upon the
Consumer Price Index for the Dallas Metroplex).
F. Consider adoption of an ordinance of the City of Denton, Texas authorizing the
City Manager to execute a Professional Services Agreement with Sawko &
Burroughs LLP for professional services related to collection of delinquent taxes
on behalf of the City of Denton; authorizing the expenditure of funds therefor;
and establishing an effective date.
G. Consider adoption of an ordinance of the City of Denton, Texas providing for,
authorizing, and approving the expenditure of funds for the purchase of a four
channel addition to the Smartnet Radio System from Motorola, which is available
from only one source in accordance with the pertinent provisions of Chapter 252
of the Texas Local Government Code exempting such purchases from the
requirements of competitive bidding; and providing an effective date (File 3349 -
Addition to Smartnet Radio System in the amount of $37,526). The Public
Utilities Board recommends approval (3-0).
H. Consider adoption of an ordinance accepting competitive bids and awarding a
contract for the purchase of two Type III Transit Buses; providing for the
expenditure of funds therefor; and providing an effective date (Bid 3336 - Type
III Transit Buses awarded to Lasseter Bus Company Inc. in the amount of
$128,170).
City of Denton City Council Agenda
June 21, 2005
Page 3
1. Consider adoption of an ordinance of the City Council of the City of Denton,
Texas approving an Amendment to that agreement between the City of Denton
and the Denton Affordable Housing Corporation; authorizing the City Manager to
execute the Amendment and to expend funds with respect to the Amendment; and
providing for an effective date.
J. Consider adoption of an ordinance of the City of Denton, Texas terminating that
certain airport lease dated September 7, 2004, by and between the City of Denton,
Texas and Denton Airport Hangars, LLC; authorizing the City Attorney or his
designee to take appropriate action, if necessary, to effectuate the termination; and
providing for an effective date. The Airport Advisory Board recommends
approval (7-0).
K. This item has been pulled from consideration.
L. Consider adoption of an ordinance approving a commercial operator airport lease
agreement between the City of Denton, Texas and NTDenton Leasing, Inc. on
approximately 1.033 acre of land at the Denton Municipal Airport; and providing
an effective date. The Airport Advisory Board recommends approval (7-0).
M. Consider adoption of an ordinance of the City of Denton, Texas authorizing the
City Manager to execute a professional services agreement with United States
Right of Way Acquisition Company, Inc., for professional services pertaining to
acquisition of right-of-way real property for the City regarding the construction of
the Clear Creek Interceptor Sewer Line; authorizing the expenditure of funds
therefor; and providing an effective date. The Public Utilities Board recommends
approval (3-0).
N. Consider adoption of 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-D; providing for continued support and assistance to Denton
Municipal Electric Staff in addressing issues associated with the Texas Nodal
Team Process to Implement a Nodal Market Redesign in the Texas Electric
Market; authorizing the expenditure of funds therefor; and providing an effective
date. The Public Utilities Board recommends approval (3-0).
0. Consider adoption of 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-E; providing for continued support and assistance to Denton
Municipal Electric Staff as they address continuing changes to the electric
industry as a result of changes initiated at both the Public Utilities Commission of
Texas and the Electric Reliability Council of Texas; authorizing the expenditure
of funds therefor; and providing an effective date. The Public Utilities Board
recommends approval (3-0).
City of Denton City Council Agenda
June 21, 2005
Page 4
P. Consider adoption of an ordinance of the City of Denton, Texas, amending
Chapter 18 of the Code of Ordinances by adding Section 18-73; altering the prima
facie speed limits established for vehicles under the provision of Transportation
Code, Section 545.356, upon the following roadways or parts thereof, within the
incorporated limits of the City of Denton; providing a penalty not to exceed
$200.00 unless the violation occurs in a work zone and then the penalty shall not
exceed $400.00; providing a severability clause; providing a repealing clause;
providing for publication; and declaring an effective date.
Q. Consider approval of a resolution approving the fiscal year 2006 Financial Plan of
the Denco Area 9-1-1 District, pursuant to the Texas Health and Safety Code,
Chapter 772, as amended; and providing an effective date.
R. Consider adoption of an ordinance amending Ordinance Nos. 2004-182 and 2004-
298 and Section 2-29 of the City Code relating to Rules of Procedure for the City
Council of the City of Denton, Texas; by changing the requirements for the City
Secretary to keep minutes of meetings and certified agendas to comply with the
Texas Open Meetings Act; certain revisions regarding Council committees and
repealing and consolidating Ordinances 2004-182 and 2004-298; providing a
severability clause; and declaring an effective date.
7. PUBLIC HEARINGS
A. Hold a public hearing and consider adoption of an ordinance granting approval of
a license agreement for the subsurface use of a portion of the Airport Open Space
Park approximately 579 feet for the purpose of a natural gas pipeline in
accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for
the issuance of license; and providing an effective date. The Parks, Recreation
and Beautification Board recommends approval (6-0).
B. Hold a public hearing and consider adoption of an ordinance approving an
amendment to Subchapter 14 (Parking Standards) of the Development Code
related to parking requirements for medical facilities. The Planning and Zoning
Commission recommends approval (6-0). (DCA05-0002, Medical Parking)
C. Hold a public hearing and consider adoption of an ordinance approving a zoning
change for 2.3 acres from Employment Center - Industrial (EC-1) to Employment
Center-Commercial (EC-Q. The property is generally located at 2001 Fort
Worth Drive. The Planning and Zoning Commission recommends approval (6-0).
(Z05-0005, 2001 Fort Worth Drive)
D. Hold a public hearing and consider adoption of an ordinance approving a zoning
change for 2.456 acres from Regional Center Residential - (RCR-1) to Regional
Center Commercial - Downtown (RCC-D). The property is generally located east
of the intersection of Pockrus Page Road and I-35E Frontage Road. The Planning
and Zoning Commission recommends approval (6-0). (Z05-0008, Pockrus Page
and I-35E)
City of Denton City Council Agenda
June 21, 2005
Page 5
8. ITEMS FOR INDIVIDUAL CONSIDERATION
A. Consider adoption of an ordinance of the City of Denton authorizing the City
Manager to enter into a development agreement between the City of Denton and
Nicosia & 77, L.P. for the dedication of parkland, the refund of parkland
dedication fees paid in lieu of land dedication at the North Pointe Subdivision and
reimbursement of park development fees for the construction of a neighborhood
park; authorizing the expenditure of funds; and providing an effective date. The
Parks, Recreation and Beautification Board recommends approval (6-0).
B. Consider approval of a resolution adopting the Intelligent Transportation System
(ITS) Study conducted by Bruce Abernathy, Consultant.
C. Consider adoption of an ordinance adopting the National Incident Management
System (NIMS) as the standard for incident management by the City of Denton,
TX; and providing for an effective date.
D. Consider adoption of an ordinance of the City of Denton, Texas providing for the
payment of engineering development review fees for development; providing a
severability clause; and an effective date.
E. Consider adoption of an ordinance amending the Fiscal Year 2004-2005 General
Fund Budget and Annual Program of Services of the City of Denton to allow for
an adjustment of One Hundred Thousand Dollars for the expenditure of funds for
consulting engineering services for development review; declaring an emergency;
providing for publication of this ordinance; and providing an effective date.
F. Consider adoption of an ordinance approving a professional services agreement
with the firm of Freese and Nichols, Inc. to provide engineering services for
engineering review of the development review process; authorizing the
expenditure of funds therefore; and providing an effective date.
G. Consider a motion to authorize the Mayor to participate in any special legislative
session that Governor Perry might call and to grant her authority to speak on
behalf of the City of Denton.
H. Receive a report, hold a discussion, give staff direction and consider adoption of
an ordinance of the City of Denton, Texas approving the First Amendment to the
commercial operator airport lease agreement between the City of Denton and Jet
Works Aviation Inc.; approval of a Lease Estoppel with Southwest Bank and
conditional approval of a Lease Estoppel with Greater East Texas Certified
Development Corporation (CDC); and providing an effective date.
1. Citizen Reports
1. Review of procedures for addressing the City Council.
2. Receive citizen reports from the following:
A. Willie Hudspeth regarding concerns of Southeast Denton.
B. Jean Campbell regarding proposed cuts to social services.
C. Tony Gamron regarding proposed cuts to social services.
City of Denton City Council Agenda
June 21, 2005
Page 6
J. New Business
This item provides a section for Council Members to suggest items for future
agendas or to request information from the City Manager.
K. Items from the City Manager
1. Notification of upcoming meetings and/or conferences
2. Clarification of items on the agenda
L. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the
Texas Open Meetings Act.
M. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the
Texas Open Meetings Act.
CERTIFICATE
I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the
City of 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 HEARING IMPAIRED IF REQUESTED AT LEAST
48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY
SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE
DEAF (TDD) BY CALLING 1-800-RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER
CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE.
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: City Manager's Office
CM: Mike Conduff, City Manager
SUBJECT
Consider adoption of an ordinance canvassing the returns and declaring the results of the
runoff municipal election held in the city of Denton on June 11, 2005; and providing for
an effective date.
BACKGROUND
The City Council ordered a runoff election to be held on June 11, 2005 for the purpose of
electing a council member to District 1 as none of the candidates received a majority of
the votes. This ordinance formally canvasses the results of the election of June 11, 2005.
Respectfully submitted:
Jennifer Walters
City Secretary
ORDINANCE NO.
AN ORDINANCE CANVASSING THE RETURNS AND DECLARING THE RESULTS OF
THE RUNOFF MUNICIPAL ELECTION HELD IN THE CITY OF DENTON ON JUNE 11,
2005.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council finds and declares that the June 11, 2005 runoff municipal
election was duly ordered for the purpose of electing one Councilperson to District 1; that proper
notice of said election was duly given and election officials appointed; that said election was duly
held and the returns of the election officials have been delivered to the Council, all in accordance
with the laws of the State of Texas and the Charter and ordinances of the City of Denton.
SFCTION The official returns of the election officials having been opened, examined
and canvassed, the Council hereby finds and declares that 268 ballots were cast at said election, and
that the votes cast for each place on the Council were as follows:
FART Y_VOTTNCT:
FOR DISTRICT l:
Charlye Heggins 86 votes
Walter Eagleton 34 votes
ELECTION DAY VOTING:
FOR DISTRICT 1:
Charlye Heggins 73 votes
Walter Eagleton 73 votes
TCIT,AT . VOTES CAST:
Charlye Heggins 159 votes
Walter Eagleton 107 votes
SECTTON The Council finds and declares that the candidate listed below received a
majority of the votes cast for District 1 on the Council and that the candidate listed below is hereby
declared to be elected to the City Council of the City of Denton:
FOR DISTRICT 1: Charlye Heggins
and such candidate shall assume the duties of her office on the date that she takes the official oath
of office.
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PASSED AND APPROVED this the day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYD , INTERIM CITY ATTORNEY
BY:
SA0ur Mcu=ntsl0rdinaaces5051R=off zoos.&c
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Jim Coulter 349-7194
ACM: Kathy DuBose
46
SUBJECT
Consider adoption of an Ordinance accepting competitive bids and awarding a two year contract
for the purchase of water meters for the City of Denton Water Department; providing for the
expenditure of funds therefore; and providing an effective date (Bid 3311-Two Year Contract for
Water Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000). (The Public Utility Board approved this item by a vote of 3-0).
BID INFORMATION
This bid is for a two-year contract to supply water meters to the City of Denton Water
Department. These items are carried in the Warehouse for easy access.
PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS)
The Public Utility Board approved this item at its June 13, 2005 meeting.
RECOMMENDATION
Award of this bid to the lowest responsible bidder for each item as listed below in the estimated
amount of $100,000.
Item# Vendor
1,2,3,5,7,16 Hughes Supply
4,6,8,9,10,11 BadgerMeter, Inc.
12,13,14,15 Metron-Farnier, LLC
The model quoted by Badger Meter, Inc., the apparent low bidder for Items 2, 5 and 7, is not
compatible with the electronic meter reading system currently utilized by the City of Denton.
AMCO, the apparent low bidder for Item 16, did not meet specifications regarding required
swivel fittings.
PRINCIPAL PLACE OF BUSINESS
Hughes Supply BadgerMeter, Inc. Metron-Farnier, LLC
Dallas, TX Milwaukee, WI Boulder, CO
Agenda Information Sheet
June 21, 2005
Page 2
ESTIMATED SCHEDULE OF PROJECT
This price agreement will be in effect for a period of two years from the date of award and may
be extended for additional one-year periods if agreed to by both parties with all pricing, terms
and conditions remaining the same.
FISCAL INFORMATION
This item will be funded out of the Warehouse working capital account and charged back to the
using department.
Respectfully submitted:
~_-7-
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Tabulation Sheet
1-AIS-Bid 3311
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ORDINANCE NO.
AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A TWO YEAR
CONTRACT FOR THE PURCHASE OF WATER METERS FOR THE CITY OF DENTON
WATER DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR;
AND PROVIDING AN EFFECTIVE DATE (BID 3311-TWO YEAR CONTRACT FOR WATER
METER INVENTORY AWARDED TO THE LOWEST RESPONSIBLE BIDDER FOR EACH
ITEM IN THE ANNUAL ESTIMATED AMOUNT OF $100,000).
WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase
of necessary materials, equipment, supplies or services in accordance with the procedures of State
law and City ordinances; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended that
the herein described bids are the lowest responsible bids for the materials, equipment, supplies or
services as shown in the "Bid Proposals" submitted therefor; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The numbered items in the following numbered bids for materials, equipment,
supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent,
are hereby accepted and approved as being the lowest responsible bids for such items:
BID ITEM
NUMBER NO VENDOR AMOUNT
3311 1-3,5,7,16 Hughes Supply ExhibitA
3311 4,6,8,9,10,11 BadgerMeter, Inc. Exhibit A
3311 12-15 Metron-Farnier, LLC Exhibit A
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
bids, the City accepts the offer of the persons submitting the bids for such items and agrees to pur-
chase the materials, equipment, supplies or services in accordance with the terms, specifications,
standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and
related documents.
SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written
agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his
designated representative is hereby authorized to execute a written contract in accordance with the
terms, conditions, specifications, standards, quantities and specified sums contained in the Bid
Proposal and related documents and to extend that contract as determined to be advantageous to the
City of Denton.
SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved bids.
SECTION 5. That this ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
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CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Sharon Mays 349-8487
ACM: Kathy DuBose
46
SUBJECT
Consider adoption of an Ordinance accepting competitive bids and awarding a two year contract
for the purchase of electric meters, CTs, and meter sockets for Denton Municipal Electric;
providing for the expenditure of funds therefore; and providing an effective date (Bid 3332-Two
Year Contract for Electric Meters, CTs and Meter Sockets awarded to the lowest responsible
bidder for each item in the annual estimated amount of $186,000). (The Public Utility Board
approved this item by a vote of 3-0).
BID INFORMATION
This bid is for Warehouse items that are used by Electric Metering for all necessary electric
revenue meters and associated equipment. There are thirty-one different types of equipment
needed to support the metering system. The equipment is used to add new customers to the
system and to maintain our existing metering system.
PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS)
The Public Utility Board approved this item at its June 13, 2005 meeting.
RECOMMENDATION
Award to the lowest responsible bidder for each item as listed on Attachment 1. A summary of
the recommended items for each vendor is listed below.
Item# Vendor Amount
1,2 Wesco Distribution, Inc. Exhibit A
3-6 Texas Meter and Device Co. Exhibit A
7-17 WescoDistribution, Inc. Exhibit A
18-31 Hughes Supply Co. Exhibit A
The lower price offered by Hughes Supply Co. for Items 3-6, failed to include catalog numbers
as required for bid evaluation, and the lower price offered from Sensus Metering Systems quoted
items not compatible with DME meter reading software. Items noted as "Options" are optional
items, and must be compatible with the meter recommended.
Agenda Information sheet
June 21, 2005
Page 2
PRINCIPAL PLACE OF BUSINESS
Hughes Supply Wesco Distribution, Inc. Texas Meter & Device Company
Corinth, TX Fort Worth, TX Waco, TX
ESTIMATED SCHEDULE OF PROJECT
This is a two-year contract with an option to renew for an additional year if agreed upon by both
parties.
FISCAL INFORMATION
These items will be purchased on an as needed basis through the Warehouse and charged back to
the appropriate department.
Respectfully submitted:
4'~~~IIL _17-
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Tabulation Sheet
I-AIS-Bid 3332
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ORDINANCE NO.
AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A TWO YEAR
CONTRACT FOR THE PURCHASE OF ELECTRIC METERS, CTS, AND METER SOCKETS
FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID 3332-TWO YEAR CONTRACT
FOR ELECTRIC METERS, CTS AND METER SOCKETS AWARDED TO THE LOWEST
RESPONSIBLE BIDDER FOR EACH ITEM IN THE ANNUAL ESTIMATED AMOUNT OF
$186,000).
WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase
of necessary materials, equipment, supplies or services in accordance with the procedures of State
law and City ordinances; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended that
the herein described bids are the lowest responsible bids for the materials, equipment, supplies or
services as shown in the "Bid Proposals" submitted therefor; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The numbered items in the following numbered bids for materials, equipment,
supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent,
are hereby accepted and approved as being the lowest responsible bids for such items:
BID ITEM
NUMBER NO VENDOR AMOUNT
3332 1,2,7-17 Wesco Distribution, Inc. Exhibit A
3332 3-6 Texas Meter and Device Co. Exhibit A
3332 18-31 Hughes Supply Co. Exhibit A
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
bids, the City accepts the offer of the persons submitting the bids for such items and agrees to pur-
chase the materials, equipment, supplies or services in accordance with the terms, specifications,
standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and
related documents.
SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written
agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his
designated representative is hereby authorized to execute a written contract in accordance with the
terms, conditions, specifications, standards, quantities and specified sums contained in the Bid
Proposal and related documents and to extend that contract as determined to be advantageous to the
City of Denton.
SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved bids.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY: - - -
3-ORD-BID 3332
Exhibit A
BID # 3332 Date: 5/31/05
Two Year Contract for Electric Meters, CT's & Meter Sockets
Wesco Texas Meter &
Hughes Supply Distribution, Device
Inc. Company
Corinth, TX Fort Worth, Waco, TX
Principle Place of Business: Tx
Section A: Standard Residential Meters
METER, SINGLE PHASE, CLASS 100, 120V, 2 WIRE,
1 12 1 S, MECHANICAL, 5 (CLOCK) DIAL, NON-DEMAND $51.70
METER, SINGLE PHASE, DEMAND, CLASS 200,
2 960 120V, 3 WIRE, 2S, MECHANICAL, 5 (CLOCK) DIAL, $24.06
NON-DEMAND (COD STOCK# 285-60-000)
Section B: Expanded Residential Meters
METER, SINGLE PHASE, CLASS 320,240V 2S,
3 16 ELECTRONIC, NON-DEMAND, $67.85
METER, SINGLE PHASE, CLASS 20, 120-240V, 3
4 4 WIRE, 4S, MECHANICAL, 5 (CLOCK) DIAL OR $67.85
ELECTRONIC, NON-DEMAND,
METER, SINGLE PHASE, CLASS 200, 120V, 3 WIRE,
5 $ 12S, ELECTRONIC, NON-DEMAND, $90'72
METER, SINGLE PHASE, CLASS 200, 120-480V, 4
6 48 WIRE, 15-16S, ELECTRONIC, NON-DEMAND $165.00
Section C: Standard Commercial Meters
METER, SINGLE PHASE, CLASS 100, 120V, 2 WIRE,
7 4 1 S, ELECTRONIC, W/DEMAND, $122'22
8 480 METER, SINGLE PHASE, CLASS 200, 120-480V, 3 $101.60
WIRE, 2S, ELECTRONIC, W/DEMAND,
OPTIONS:
8a PULSE INITIATOR $45.45
8b MULTIPLE T.O.U. RATE REGISTERS $17.05
8c LOAD PROFILE $79.95
8d REACTIVE KVARH $170.45
8e INTERNAL MODEM $181.82
8f REPLACEMENT BATTERIES $11.36
8g REPLACEMENT COVER/GLASS $4.55
Exhibit A
BID # 3332 Date: 5/31/05
Two Year Contract for Electric Meters, CT's & Meter Sockets
Wesco Texas Meter &
Hughes Supply Distribution, Device
Inc. Company
METER, SINGLE PHASE, CLASS 320, 120-480V, 3
9 $ WIRE, 2S ELECTRONIC, W/DEMAND $150.00
OPTIONS:
9a PULSE INITIATOR $45.45
9b MULTIPLE T.O.U. RATE REGISTERS $17.05
9C LOAD PROFILE $79.95
9d REACTIVE KVARH $170.45
9e INTERNAL MODEM $181.82
9f REPLACEMENT BATTERIES $11.36
9g REPLACEMENT COVER/GLASS $4.55
METER, SINGLE PHASE, CLASS 20, 120-240V, 3
10 3 WIRE, 4S ELECTRONIC, W/DEMAND (COD STK# $125.00
285-61-000)
OPTIONS:
10a PULSE INITIATOR $45.45
10b MULTIPLE T.O.U. RATE REGISTERS $17.05
1 OC LOAD PROFILE $79.95
10d REACTIVE KVARH $170.45
10e INTERNAL MODEM $181.82
1Of REPLACEMENT BATTERIES $11.36
1Og REPLACEMENT COVER/GLASS $4.55
METER, THREE PHASE, CLASS 20, 120-480V, 3
11 3 WIRE, 5S, ELECTRONIC, W/DEMAND $159.09
OPTIONS:
11a PULSE INITIATOR $45.45
11 b MULTIPLE T.O.U. RATE REGISTERS $17.05
11C LOAD PROFILE $79.95
11 d REACTIVE KVARH $170.45
11 a INTERNAL MODEM $181.82
11f REPLACEMENT BATTERIES $11.36
Exhibit A
BID # 3332 Date: 5/31/05
Two Year Contract for Electric Meters, CT's & Meter Sockets
Wesco Texas Meter &
Hughes Supply Distribution, Device
Inc. Company
11g REPLACEMENT COVER/GLASS $27.27
12 24 METER, THREE PHASE, CLASS 20, 120-480V, 4 $152.17
WIRE, 8-9S, ELECTRONIC, W/DEMAND
OPTIONS:
12a PULSE INITIATOR $45.45
12b MULTIPLE T.O.U. RATE REGISTERS $17.05
12c LOAD PROFILE $79.95
12d REACTIVE KVARH $170.45
12e INTERNAL MODEM $181.82
12f REPLACEMENT BATTERIES $11.36
12g REPLACEMENT COVER/GLASS $27.27
METER, SINGLE PHASE, CLASS 200, 120-480V, 3
13 $ WIRE, 12S, ELECTRONIC, W/DEMAND $155.56
OPTIONS:
13a PULSE INITIATOR $45.45
13b MULTIPLE T.O.U. RATE REGISTERS $17.05
13c LOAD PROFILE $79.95
13d REACTIVE KVARH $170.45
13e INTERNAL MODEM $181.82
13f REPLACEMENT BATTERIES $11.36
13g REPLACEMENT COVER/GLASS $4.55
14 48 METER, THREE PHASE, CLASS 200, 120-480V, 4 $152.17
WIRE, 15-16S ELECTRONIC, W/DEMAND
OPTIONS:
14a PULSE INITIATOR $45.45
14b MULTIPLE T.O.U. RATE REGISTERS $17.05
14c LOAD PROFILE $79.95
14d REACTIVE KVARH $170.45
Exhibit A
BID # 3332 Date: 5/31/05
Two Year Contract for Electric Meters, CT's & Meter Sockets
Wesco Texas Meter &
Hughes Supply Distribution, Device
Inc. Company
14e INTERNAL MODEM $181.82
14f REPLACEMENT BATTERIES $11.36
14g REPLACEMENT COVER/GLASS $27.27
METER, THREE PHASE, CLASS 320, 120-480V, 4
15 $ WIRE, 15-16S ELECTRONIC, W/DEMAND $193.18
OPTIONS:
15a PULSE INITIATOR $45.45
15b MULTIPLE T.O.U. RATE REGISTERS $17.05
15c LOAD PROFILE $79.95
15d REACTIVE KVARH $170.45
15e INTERNAL MODEM $181.82
15f REPLACEMENT BATTERIES $11.36
15g REPLACEMENT COVER/GLASS $27.27
Section D: Meter Sockets
SOCKET, RING-LESS, 6 TERMINAL, 20 AMP, ONE
PIECE COVER, CLOSURE PLATE, SEVEN POLE
16 5 TEST SWITCH, PRE-WIRED WITH DME's COLOR $160.89
CODED WIRING DIAGRAM FOR A 4S METER.
SOCKET, RING-LESS 13 TERMINAL, 20 AMP, ONE
17 30 PIECE COVER, CLOSURE PLATE TEN POLE TEST $176.26
SWITCH, PRE-WIRED WITH DME's COLOR CODED
WIRING DIAGRAM FOR 8-9S METER.
Section E: Current Transformers
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 200:5, ANSI METER ACCURACY
18 12 CLASS .3B-01, RATING FACTOR OF 4.0 @ 30 C. $49.75
ABB TYPE CMV, PART # 7524A75G01 OR EQUAL
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 300:5, ANSI METER ACCURACY
19 12 CLASS .3B-02, RATING FACTOR OF 4.0 @ 30 C. $49.75
ABB TYPE CMV, PART # 7524A75G02 OR EQUAL
Exhibit A
BID # 3332 Date: 5/31/05
Two Year Contract for Electric Meters, CT's & Meter Sockets
Wesco Texas Meter &
Hughes Supply Distribution, Device
Inc. Company
CURRENT TRANSFORMER: 600 VOLT, OVER
BUSHING TYPE 400:5, ANSI METER ACCURACY
20 6 CLASS .3B-0.2, RATING FACTOR 4.0 @ 30 C.ABB $49.75
TYPE CMV, PART # 7524A75G03 OR EQUAL
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 600:5, ANSI METER ACCURACY
21 3 CLASS.3B-0.2, RATING FACTOR OF 3.0 @ 30 $49.75
C.ABB TYPE CMV, PART # 7524A75G04 OR EQUAL
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 800:5, ANSI METER ACCURACY
22 3 CLASS.3B-0.5, RATING FACTOR OF 3.0 @ 30 $49.75
C.ABB TYPE CMV, PART # 7524A75G05 OR EQUAL
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 1000:5, ANSI METER ACCURACY
23 3 CLASS.3B-0.5, RATING FACTOR OF 2.0 @ 30 $50.89
C.ABB TYPE CMV, PART # 7524A75G06 OR EQUAL.
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 1200:5, ANSI METER ACCURACY
24 3 CLASS.3B-0.9, RATING FACTOR OF 2.0 @ 30 $50.89
C.ABB TYPE CMV, PART # 7524A75G07 OR EQUAL.
CURRENT TRANSFORMERS: 600 VOLT, OVER
BUSHING TYPE 1500:5, ANSI METER ACCURACY
25 3 CLASS.3B-0.9, RATING FACTOR OF 2.0 @ 30 $52.03
C.ABB TYPE CMV, PART # 7524A75G08 OR EQUAL.
CURRENT TRANSFORMERS: 600 VOLT, OVER
26 3 BUSHING TYPE 2000:5, ANSI METER ACCURACY $53.19
CLASS.3131.8, RATING FACTOR OF 1.5 @ 30 C.ABB
TYPE CMV, PART # 7524A75G09 OR EQUAL.
CURRENT TRANSFORM ERS:200:5 RATIO, 600
VOLT, WINDOW TYPE. 2.5' WINDOW, ANSI METER
27 6 ACCURACY CLASS .3B-0.5, RATING FACTOR OF $48.98
4.0 @ 30 C. ABB TYPE CMF, PART # 4460A30G01
OR EQUAL.
CURRENT TRANSFORMER: 300:5 RATIO, 600
VOLT, WINDOW TYPE. 3.)" WINDOW, ANSI METER
28 6 ACCURACY CLASS .3B-05, RATING FACTOR OF 3.0 $47.45
@ 30 C. ABB TYPE CMS, PART # 7524A79G02 OR
EQUAL.
Exhibit A
BID # 3332 Date: 5/31/05
Two Year Contract for Electric Meters, CT's & Meter Sockets
Wesco Texas Meter &
Hughes Supply Distribution, Device
Inc. Company
CURRENT TRANSFORMER: 400:5 RATIO, 600
VOLT, WINDOW TYPE. 3.0" WINDOW, ANSI METER
29 6 ACCURACY CLASS .3B-0.5, RATING FACTOR OF $46.68
4.0 @ 30 C. ABB TYPE CMF, PART # 4460A30GO3
OR EQUAL.
VOLTAGE TRANSFORMER: ANSI ACCURACY
CLASS 0.3 THRU BURGEN Z, THERMAL RATING
30 6 1500 VA AT 30 DEGREES C AMBIENT, 8400:120 $572.55
VOLTAGE RATING, SINGLE BUSHING, 110 KV BIL,
ABB TYPE VOZ-11 M, PART # 7525A91 G07 OR
EQUAL.
CURRENT TRANSFORMER: ANSI ACCURACY
31 CLASS.3 THRU B-0.5, 110 KV, BIL, 13,800 NOMINAL
OR 15 KV ACCEPTABLE. RATIO REQUIRED.
31a 3 25:5 ABB TYPE KON-11, PART # 7524A25G04 OR $427.66
EQUAL.
31 b 3 50:5 ABB TYPE KON-11, PART # 752A25G07 OR $427.66
EQUAL.
31c 3 100:5 ABB TYPE KNO-11, PART # 7524A25G09 OR $522.77
EQUAL.
31 d 3 200:5 ABB TYPE KON-11, PART # 752A25G11 OR $448.09
EQUAL.
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Sharon Mays 349-8487
ACM: Kathy DuBose
46
SUBJECT
Consider adoption of an Ordinance accepting competitive bids and awarding a three year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing for the
expenditure of funds therefore; and providing an effective date (Bid 3342-Three Year Agreement
for Wood Utility Poles awarded to the lowest responsible bidder for each item in the annual
estimated amount of $160,000). (The Public Utility Board approved this item by a vote of 3-0).
BID INFORMATION
This bid is for a three-year contract to supply Wood Utility Poles used by the Electric
Distribution Division in the maintenance and new construction of the overhead distribution
system. Poles are ordered as needed in truckload quantities and stored in the Warehouse stock
until placed in service.
PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS)
The Public Utility Board approved this item at its June 13, 2005 meeting.
RECOMMENDATION
Award of a three-year contract to the lowest responsible bidder, Lufkin Creosoting Company,
accepting the price structure for the DME drilled poles (predrilled holes are to DME
specifications versus Rural Utility System Standard). The apparent low bidder, RJ Trading
Group, LTD, did not meet specifications for permanent identification branding, and for pole-top
slant cut.
PRINCIPAL PLACE OF BUSINESS
Lufkin Creosoting Company
Lufkin, TX
Agenda Information Sheet
June 21, 2005
Page 2
ESTIMATED SCHEDULE OF PROJECT
Truckload quantities of various length and class of poles can be shipped within two weeks of
receipt of an order. This price agreement will be in effect for a period of three years from the
date of award and may be extended for additional one-year periods if agreed to by both parties
with all pricing, terms and conditions remaining the same.
FISCAL INFORMATION
Poles will be purchased from the Warehouse Working Capital Inventory account 800001.6402
and charged to appropriate department accounts as utilized.
Respectfully submitted:
~_-7-
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Bid Tabulation
1-AIS-Bid 3342
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ORDINANCE NO.
AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A THREE YEAR
CONTRACT FOR THE PURCHASE OF WOOD UTILITY POLES FOR DENTON MUNICIPAL
ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE (BID 3342-THREE YEAR AGREEMENT FOR WOOD
UTILITY POLES AWARDED TO THE LOWEST RESPONSIBLE BIDDER FOR EACH ITEM IN
THE ANNUAL ESTIMATED AMOUNT OF $160,000).
WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase
of necessary materials, equipment, supplies or services in accordance with the procedures of State
law and City ordinances; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended that
the herein described bids are the lowest responsible bids for the materials, equipment, supplies or
services as shown in the "Bid Proposals" submitted therefor; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The numbered items in the following numbered bids for materials, equipment,
supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent,
are hereby accepted and approved as being the lowest responsible bids for such items:
BID ITEM
NUMBER NO VENDOR AMOUNT
3342 1-26 Lufkin Creosoting Company Exhibit A
SECTION 2. City Council finds the bid submitted by RJ Trading Group, Ltd. did not meet
specifications and is therefore rejected.
SECTION 3. By the acceptance and approval of the above numbered items of the
submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees
to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid
Proposals, and related documents.
SECTION 4. Should the City and the winning bidder(s) wish to enter into a formal written
agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his
designated representative is hereby authorized to execute a written contract in accordance with the
terms, conditions, specifications, standards, quantities and specified sums contained in the Bid
Proposal and related documents and to extend that contract as determined to be advantageous to the
City of Denton.
SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council
hereby authorizes the expenditure of funds therefor in the amount and in accordance with the
approved bids.
SECTION 6. 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: - -
3-ORD-BID 3342
Bid # 3342
Opens: 5/31/05
Three Year Agreement for Wood Utility Poles
Unit price for Unit Price for
Est. Qty DME Drilling RUS M-20
Drilling
1 54069000 35 FT. CLASS 3 150 $207.25 $204.00
2 54069510 35 FT. CLASS 1 1 $276.30 $265.00
3 54069050 40 FT. CLASS 3 100 $251.88 $245.00
4 54069540 40 FT. CLASS 1 20 $352.55 $345.00
5 54069515 45 FT. CLASS 1 160 $400.62 $390.00
6 54069520 50 FT. CLASS 1 50 $464.09 $450.00
7 54069530 55 FT. CLASS 1 50 $628.89 $615.00
8 54069535 60 FT. CLASS 1 6 $773.79 $760.00
9 54069565 65 FT. CLASS 1 6 $1,106.65 $1,095.00
10 N/A 65 FT. CLASS H1 1 $1,272.40 $1,260.00
11 N/A 65 FT. CLASS H2 1 $1,651.75 $1,630.00
12 54069300 70 FT. CLASS 1 4 $1,272.40 $1,260.00
13 N/A 70 FT. CLASS H1 1 $1,671.45 $1,655.00
14 N/A 70 FT. CLASS H2 1 $1,917.15 $1,885.00
15 54069560 75 FT. CLASS 1 4 $1,670.70 $1,645.00
16 N/A 75 FT. CLASS H1 1 $1,917.15 $1,900.00
17 N/A 75 FT. CLASS H2 1 $2,278.30 $2,202.00
18 54069400 80 FT. CLASS 1 4 $1,935.63 $1,899.00
19 N/A 80 FT. CLASS H1 1 $2,188.72 $2,155.00
20 N/A 80 FT. CLASTFTT--T-- $2,628.50 $2,600.00
21 54069450 85 FT. CLASS 1 2 $2,176.72 $2,135.00
22 N/A 85 FT. CLASS H1 1 $2,628.25 $2,589.00
23 N/A 85 FT. CLASS H2 1 $3,024.20 $2,985.00
24 54069500 90 FT. CLASS 1 1 $2,628.50 $2,580.00
25 N/A 90 FT. CLASS H1 1 $3,124.20 $2,999.00
26 N/A 90 FT. CLASS H2 1 $4,140.25 $4,000.00
TOTALS $248,795.92 $247,846.63
Delivery within days A.R.O. 7-10 Days 7-10 Days
Optional Adder to hand pick the
strongest & straightest poles for
shipment: $ _per pole. N/A N/A
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Vance Kemler 349-8444
ACM: Kathy DuBose
SUBJECT
Consider adoption of an Ordinance of the City of Denton authorizing the City Manager or his
designee to execute a contract with the Houston-Galveston Area Council of Governments
(H-GAC) for the acquisition of 35, 65, and 95 gallon refuse carts for the City of Denton Solid
Waste Department by way of an Interlocal Agreement with the City of Denton; and providing an
effective date (File 3350-Purchase of Refuse Carts in the current estimated amount of $30,000).
(The Public Utility Board approved this item by a vote of 3-0).
BID INFORMATION
The City's most recent refuse cart purchase agreement expired at the end of calendar year 2004.
The Solid Waste Department must purchase additional residential refuse carts, and various
replacement parts, due to the residential cart growth Denton is incurring. During calendar year
2005 to date, the Residential Solid Waste staff has placed an average of 180 new refuse carts per
month. Declining inventory levels require additional cart purchases at this time to meet the
continued customer demand.
As of June 1, 2005, the Solid Waste Department has 4,380 residential refuse carts in the field
serving Denton's customers.
Upon approval of this agreement the Solid Waste Department has immediate need for containers
totaling $16,797.30. Additional containers will be purchased, as needed throughout the contract
period ending March 2006 and subject to renewal by Rehrig Pacific Company and H-GAC.
PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS)
The Public Utility Board approved this item at its June 13, 2005 meeting.
RECOMMENDATION
Award to Rehrig Pacific Company as listed on attached Exhibit A.
Agenda Information Sheet
June 21, 2005
Page 2
PRINCIPAL PLACE OF BUSINESS
Houston-Galveston Area Council of Governments Rehrig Pacific Company
Houston, Texas Lawrenceville, GA
ESTIMATED SCHEDULE OF PROJECT
Staff desires to utilize this purchase agreement for all refuse cart purchases for the term of the
H-GAC contract. Delivery of truckload quantities can be received 30-45 days after receipt of
order.
FISCAL INFORMATION
Funding for the carts will be provided from Solid Waste project account 660038587.1365.30100.
Respectfully submitted:
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Quote from Rehrig Pacific Company
1-AIS-File 3350
Attachment 1
Ij flaccific (Zompanv
I I
May 23, 2005
Karen Smith & Scott Lebsack
City of Denton
1527 South Mayhill Road
Denton, TX 76208
Dear Karen & Scott:
I have listed below the HGAC contract pricing. This contract does not represent current market
pricing, due to large spikes in the resin market (raw materials).
Part LTL Price TL Price
95 Gallon Carts: $46.00 $35.75
65 Gallon Carts: $47.00 $33.75
35 Gallon Carts: $33.60 $27.00
*These prices are including freight.
The contact for this contract is Ron Schmalle.
Ron (Program Manager) - (713) 627-3200
If you have any questions regarding the above quotation you can contact me at (304) 215-2929.
Sincerely,
Zach Martin
Environmental Sales Representative
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR
HIS DESIGNEE TO EXECUTE A CONTRACT WITH THE HOUSTON-GALVESTON
AREA COUNCIL OF GOVERNMENTS (H-GAC) FOR THE ACQUISITION OF 35, 65, AND
95 GALLON REFUSE CARTS FOR THE CITY OF DENTON SOLID WASTE
DEPARTMENT, BY WAY OF AN INTERLOCAL AGREEMENT WITH THE CITY OF
DENTON; AND PROVIDING AN EFFECTIVE DATE (FILE 3350-PURCHASE OF REFUSE
CARTS IN THE CURRENT ESTIMATED AMOUNT OF $30,000).
WHEREAS, pursuant to Ordinance 95-107, the Houston-Galveston Area Council of
Government (H-GAC) has solicited, received, and tabulated competitive bids for the purchase of
necessary materials, equipment, supplies, or services in accordance with the procedures of state
law on behalf of the City of Denton; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended
that the herein described materials, equipment, supplies, or services can be purchased by the City
through the Houston-Galveston Area Council of Government (H-GAC) programs at less cost
than the City would expend if bidding these items individually; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of
funds to be used for the purchase of the materials, equipment, supplies, or services approved and
accepted herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the numbered items in the following numbered purchase order for
materials, equipment, supplies, or services, are hereby approved.
FILE
NUMBER VENDOR AMOUNT
3350 H-GAC/Rehrig Pacific Company Exhibit A
SECTION 2. That by the acceptance and approval of the above numbered items set
forth in the referenced purchase orders, the City accepts the offer of the persons submitting the
bids to the H-GAC for such items and agrees to purchase the materials, equipment, supplies, or
services in accordance with the terms, conditions, specifications, standards, quantities and for the
specified sums contained in the bid documents and related documents filed with the H-GAC, and
the purchase orders issued by the City.
SECTION 3. Should the City and persons submitting approved and accepted items set
forth in the attached purchase orders wish to enter into a formal written agreement as a result of
the City's ratification of bids awarded by H-GAC, the City Manager or his designated
representative is hereby authorized to execute the written contract; provided that the written
contract is in accordance with the terms, conditions, specifications and standards contained in the
Proposal submitted to H-GAC, quantities and specified sums contained in the City's purchase
orders, and related documents herein approved and accepted.
SECTION 4. By the acceptance and approval of the above enumerated items, the City
Council hereby authorizes the expenditure of funds therefor in the amount and in accordance
with the approved bids.
SECTION 5. That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY: r ~
3-ORD-File 3350
File #3350 ExhibitA
Date: 6/1/05
Refuse Carts
HGAC/REHRIG
PACIFIC CO.
Principle Place of Business: Houston, Tx
1 EA 35 GALLON CARTS $27.00
2 EA 65 GALLON CARTS $33.75
3 EA 95 GALLON CARTS $35.75
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Stephen Nesbitt 349-7281
ACM: Kathy DuBose
SUBJECT
Consider adoption of an Ordinance to the City of Denton, Texas authorizing the City Manager to
execute a professional services agreement between the City of Denton and KPMG, L.L.P. for
independent audits; authorizing the expenditure of funds; and providing an effective date (RFSP
3325 - Audit Services awarded to KPMG, L.L.P. in the not to exceed amount of $105,850 for
2005, $105,200 for 2006 and $110,225 for 2007. Fees for 2008 and 2009 will be based upon the
Consumer Price Index for the Dallas Metroplex).
RFSP INFORMATION
This RFSP is for independent auditing services with KPMG, L.L.P. for the fiscal years ending
September 30, 2005, September 30, 2006 and September 30, 2007 with the City's option to
extend the agreement for two additional years ending September 30, 2008 and September 30,
2009.
The scope of services include:
• Performing the annual audit of general purpose financial statements in accordance with
applicable generally accepted auditing standards
• Issue a management letter reporting any material weaknesses in internal accounting
controls
• Compliance audit and single audit of Federal Financial Assistance Programs
• All other services as defined in the Proposal to Serve document, dated April 2005 and
attached to the contract as Exhibit A
KPMG, L.L.P. was ranked as the most qualified and advantageous to the City of Denton based
upon a selection ranking including the following:
Demonstrated experience, qualifications, and professional activities 40%
Total evaluated cost 20%
Responsiveness of the proposal 20%
Commitment to Governmental Accounting and Auditing 20%
Agenda Information Sheet
June 21, 2005
Page 2
RFSP INFORMATION (CONTINUED)
The evaluation team consisted of:
Kathy Dubose, Assistant City Manager
Andrea Gage, Internal Auditor
Diana Ortiz, Director of Fiscal Operations
Stephen Nesbitt, Comptroller
Mike Rodgers, Chief Accountant
Tom Shaw, Purchasing Agent
RECOMMENDATION
We recommend the Professional Services Agreement between KPMG, L.L.P. and the City of
Denton be approved in the amount(s) listed above.
PRINCIPAL PLACE OF BUSINES
KPMG, L.L.P.
Dallas, Texas
ESTIMATED SCHEDULE OF PROJECT
Auditors financial and compliance audit work shall be completed no later than December 30
after the City's fiscal year end. The Comprehensive Annual Financial Report ("CAFR") should
be available for print by the 2nd Monday in January.
FISCAL INFORMATION
Funding for this Professional Services Agreement will be available in the applicable fiscal year
budget account 160099.7852.
Respectfully submitted:
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Proposal Evaluation
1-AIS-RFSP 3325
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S:\Our Documents\Ordinances1051Auditor Ordinance.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO
EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF DENTON
AND KPMG LLP FOR INDEPENDENT AUDITS; AUTHORIZING THE EXPENDITURE OF
FUNDS; AND PROVIDING AN EFFECTIVE DATE (RFSP 3325 - AUDIT SERVICES
AWARDED TO KPMG LLP IN AN AMOUNT NOT TO EXCEED $105,850 FOR 2005,$105,200
FOR 2006, AND $110,225 FOR 2007. FEES FOR 2008 AND 2009 WILL BE BASED UPON THE
CONSUMER PRICE INDEX FOR THE DALLAS METROPLEX).
WHEREAS, the City's current agreement with Deloitte and Touche expired after the
completion of the firm's audit services for the fiscal year ending September 30, 2004; and
WHEREAS, in response to requests for proposal, KPMG LLP was the best proposal received
for audit services; and
WHEREAS, Chapter 2254 of the Texas Government Code, known as the Professional
Services Procurement Act, generally provides that a city may not select a provider of professional
services on the basis of competitive bids, but must select the provider of professional services on the
basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable
price; and
WHEREAS, the City Council hereby finds and concludes that KPMG LLP is appropriately
qualified under the provisions of the law to be retained to provide auditing services and has been
selected on the basis of demonstrated competence, knowledge, and qualifications, and the
compensation to be paid is fair and reasonable; and
WHEREAS, the City Manager recommends and the City Council deems it in the public
interest that the City enter into a professional services agreement for independent auditing services
with KPMG LLP for the fiscal years ending September 30, 2005, September 30, 2006 and September
30, 2007 with the City's option to extent the agreement for two additional fiscal years ending
September 30, 2008 and September 30, 2009; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference
SECTION 2. That the City Manager is hereby authorized to execute on behalf of the City, a
professional services agreement for auditing services between the City and KPMG LLP for
independent auditing services, in substantially the form of the agreement which is attached hereto
and incorporated by reference herein.
SECTION 3. The City Manager is hereby authorized to expend the funds and to undertake
the obligations as set forth in the attached agreement.
SA0ur Documents\Ordinances1051Auditor Ordinance.doc
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: /
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-CITY 9
C:IT-~ - OF DE\10'~ TFAA
B
N11C9H:`tiF:1. A CON[)U["T
CITY MANAGER
A! MA
BY
Ai' Ri) %-'LD AS Ti? FOR1[.
hC)% TN 'd S\YDFA I I FRl\-'I C I l 1 1 I l i 7I~~F.~
31Y:
L:Dl 1 1%~
Vi N F-
TTE S'l"
7
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
Questions concerning this
DEPARTMENT: Fiscal Operations acquisition may be directed
to Diana Ortiz 349-8224
ACM: Kathy DuBose
SUBJECT
Consider an Ordinance of the City of Denton, Texas authorizing the City Manager to execute a
Professional Services Agreement with Sawko & Burroughs LLP for professional services related
to collection of delinquent taxes on behalf of the City of Denton; authorizing the expenditure of
funds therefor; and establishing an effective date.
RFSP INFORMATION
In April 2005, a request for sealed proposals for collection of delinquent taxes for the City of
Denton was sent to prospective bidders. Proposals from four firms were evaluated to determine
competence, knowledge, and qualifications in delinquent collection enforcement services. The
term of this contract is for three years with an option to extend the contract for two additional
one-year extensions.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
City Council met on June 7, 2005 and discussed the proposal process.
PRINCIPAL PLACE OF BUSINESS
Sawko & Burroughs LLP
Denton, TX
ESTIMATED SCHEDULE OF PROJECT
This contractual agreement will be in effect from July 1, 2005 through June 30, 2008, with the
option to extend through June 30, 2010.
FISCAL INFORMATION
This is basically a self-funding agreement. The service provider is only paid based upon the
success of their collection. The agreement has no budget expenditure impact.
Respectfully submitted:
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH SAWKO
& BURROUGHS, LLP, FOR PROFESSIONAL SERVICES RELATED TO COLLECTION OF
DELINQUENT TAXES ON BEHALF OF THE CITY OF DENTON; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND ESTABLISHING AN EFFECTIVE DATE.
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 Sawko & Burroughs, LLP, in substantially the form attached and incorporated
herein by reference.
SECTION 2: That the expenditure of funds as provided in the attached Professional Services
Agreement is hereby authorized.
SECTION 3: 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 SNYDER, INTERIM CITY ATTORNEY
BY: Original signed by Jerry E. Drake, Jr.
CONTRACT FOR THE COLLECTION OF
DELINQUENT PROPERTY TAXES
THE STATE OF TEXAS §
COUNTY OF DENTON §
THIS CONTRACT is made and entered into by and between the City of Denton, 215 East
McKinney, Denton, Texas 76201 (hereinafter, "CITY"), acting herein by and through its governing
body, and the Law Firm of Sawko & Burroughs, L.L.P., 1100 Dallas Drive, Suite 100, Denton,
Texas 76205 (hereinafter, "FIRM").
1. EMPLOYMENT OF FIRM
CITY agrees to employ, and does hereby employ, FIRM as an independent contractor.
FIRM hereby agrees to enforce, by suit or otherwise, the collection of all delinquent taxes, penalties,
and interest owing to CITY.
A. FIRM shall initiate collection on current and prior year delinquencies as of July 1, 2005,
and shall initiate collection on subsequent delinquencies as of each subsequent July 1St anniversary.
B. With respect to delinquent personal property taxes only, FIRM shall have the option to
initiate collection on March 1St of the year in which they become delinquent; however, CITY shall
not owe FIRM a fee on current year delinquent personal property taxes collected between March 1 St
and June 30t'', unless attorney fees are collected pursuant to Tex. Prop. Tax Code §33.48.
C. FIRM shall perform all those services set forth in CITY's Request for Proposals ("RFP")
dated April 12, 2005 (Exhibit A), the addendum dated April 28, 2005 (Exhibit B) and FIRM's
response to the RFP dated May 10, 2005 (Exhibit C), which are attached hereto and made a part
hereof, as if written word for word herein.
D. The terms of this Contract control over the terms and conditions of the attached exhibits,
in the event of a conflict.
FIRM hereby agrees to perform these services with diligence and in accordance with the
highest professional standards customarily associated with such services in the State of Texas.
2. PROVISION OF INFORMATION
CITY agrees to furnish its delinquent tax information to FIRM on all property within the
boundaries of CITY, including name, identity, location of necessary parties, and property
descriptions.
Page 1 of 13
3. INVESTIGATION AND ASSISTANCE
FIRM agrees to investigate the address of each taxpayer, and the location of the property,
where such information may be incorrect on the delinquent tax record. FIRM shall bring to the
attention of the appropriate tax official of CITY any errors, double assessments, discrepancies, or
inaccuracies detected by FIRM in the delinquent tax record. FIRM further agrees to provide CITY
any advice or assistance in updating the tax rolls.
4. COLLECTION
Upon initial receipt of computer readable delinquent tax records, FIRM agrees to initiate
collection of the full amount due from each taxpayer. Within a reasonable time frame, but not more
than 60 days from FIRM's receipt of the delinquent tax records, FIRM hereby agrees to send, by
first class mail, a notice of delinquency to each and every delinquent taxpayer, requesting said
taxpayer to remit the full amount due and owing to CITY, except in cases where the taxes have been
deferred or made the basis of a lawsuit against the Denton County Appraisal District to determine
value.
5. REVIEW AND AUTHORIZATION TO SUE
Following transmittal of the notice of delinquency as specified above, FIRM will
aggressively pursue collection, in anticipation of litigation. CITY shall have absolute discretion
over the decision to file suit. Transmittal of the delinquent tax information from CITY to FIRM
shall constitute authorization to file suit, following the mailing of the initial notice of delinquency.
Upon written notice, CITY may, at any time, withdraw authorization to file suit. CITY may at any
time withdraw authorization to foreclose and sell the property, and said withdrawal shall be in
writing.
6. LITIGATION RESPONSIBILITIES
A. FIRM agrees to commence litigation, prosecute, and reduce to judgment all delinquent
accounts, including all pending lawsuits that FIRM deems to warrant, or upon which CITY has
specifically requested action in writing. Each suit filed shall seek: personal judgment against the
individual taxpayer for all taxes upon which the taxpayer can be held personally liable; penalty and
interest; foreclosure of any tax lien which may exist by operation of law; any and all court costs
incurred in prosecuting the lawsuit; and any collection fees or attorney fees which the taxpayer is
obligated to pay. FIRM shall perform litigation responsibilities and protect CITY's legal remedies,
including appeals, preparation of any documents required, post judgment activities, and any other
actions necessary in order to collect the delinquent taxes.
B. FIRM will assume the representation of CITY in all lawsuits, including all pending
lawsuits, involving the collection of delinquent taxes and enforcement of tax liens, including, but
not limited to bankruptcy litigation, claims, and actions required to be filed with federal agencies
such as FDIC, FSLIC and RTC, interventions in suits filed on behalf of any other taxing units'
current suits, and any other suit or litigation which may involve or relate to the collection of
delinquent taxes. FIRM will inform CITY of any counterclaims or cross-actions filed against
CITY.
Page 2ofI I
C. Upon request, FIRM agrees to provide legal advice and assistance to CITY in the
acquisition of property for public purpose use, pursuant to the Property Tax Code.
7. TAXPAYER SERVICES
In addition to litigation, FIRM further agrees to provide taxpayer service without charge.
As such, FIRM agrees: (1) to provide CITY legal advice and written opinions regarding tax matters
upon request; (2) to respond to taxpayer inquiries and to advise CITY, in writing; and (3) make any
recommendations concerning installment payment agreements and settlement agreements proposed
by the taxpayer. CITY shall have final determination in acceptance of all installment payments or
settlement agreements within parameters established by CITY. FIRM shall have discretion to enter
into installment agreements, subject to CITY's prerogative of final determination. In all demand
letters and all communications with taxpayers, FIRM shall inform and instruct the taxpayer to remit
payment to CITY. If remittance is received by FIRM, it must be transmitted in its entirety to CITY
and received for processing by 11:30 a.m., the following business day. Checks made payable to
FIRM shall be endorsed by FIRM to CITY. No check, cash, or money order for payment of
delinquent taxes shall be deposited in any FIRM account.
8. PROGRESS REPORTS
FIRM agrees to make delinquent tax collection progress reports to CITY monthly and
quarterly, in a format containing information requested by CITY's Assistant City Manager for Fiscal
and Municipal Services. Progress reports may include, without limitation:
a. Number and type of communication with delinquent taxpayers;
b. Summary of all delinquent accounts collected;
C. Number of suits filed;
d. Detailed list of suits filed;
e. Number of judgments rendered;
f. Detailed list of judgments rendered;
g. Number of warrants issued/served;
h. Detailed list of bankruptcies and status of those properties;
i. Number of properties submitted to courts for auction;
j. Detailed list of properties submitted to courts for auction, with date submitted and
most recent status;
k. Number of properties sold; and
1. Detailed list of properties sold or reverting to taxing entity because of non-sale.
Within parameters established at the initiation of the collection program, FIRM shall advise
CITY of any case in which FIRM's investigation has revealed that the taxpayer cannot be found, the
enforcement of the tax lien cannot be accomplished, or further attempts at tax collection would be
futile, and shall provide FIRM's recommendation regarding the proper disposition of the case. In
such cases, CITY shall advise FIRM as to the appropriate disposition of the account.
Page 3 of II
9. COMPENSATION
A. As compensation for the services rendered hereunder by FIRM, CITY hereby agrees to
pay FIRM 20% of the total amount of all delinquent taxes, penalties, and interest for the tax years
covered by this Contract, as authorized by Tex. Prop. Tax Code §33.48(a)(5). All compensation set
forth above shall become the property of FIRM at the time payment of taxes, penalties, and interest
are received by CITY. The 20% collection fee will only be paid on taxes which remain delinquent
after July 1st of the year on which they became delinquent, pursuant to Tex. Prop. Tax Code §33.07.
Said collection fee will only be paid to FIRM after it has been received by CITY from taxpayer, or
from forced sales. FIRM shall not be entitled to the aforesaid 20% unless and until FIRM has taken
some action in connection with recovering delinquent taxes. The transmittal of a notice of
delinquency shall constitute sufficient action in order to entitle FIRM to the aforementioned fee. As
compensation for the services rendered hereunder by FIRM for the collection of taxes which are not
eligible for the additional penalty authorized by Tex. Prop. Tax Code §33.07, and upon which suit
has been filed, the compensation shall be reasonable attorney fees approved by the court, not
exceeding 15% of the total amount of taxes, penalties, and interest due CITY. In no event shall
FIRM be entitled to any fee, unless and until CITY actually collects the delinquent taxes, penalties,
interest, court costs, collection costs, or attorney fees from the taxpayer, or from the proceeds of a
forced sale or foreclosure. In no event shall FIRM be entitled to any fee, unless said fee is collected
by CITY during the term of this Contract, or fee is collected by CITY on accounts upon which
FIRM is attorney of record at the time of judgment. CITY shall pay said fees to FIRM monthly by
check. No interest shall accrue on any late payment.
B. The compensation set forth in paragraphs 9, 10, and 13 of this Contract shall be the total
compensation due from CITY to FIRM for all services provided pursuant to this Contract, and in no
event shall FIRM seek any additional compensation from CITY.
10. COLLECTION OF OTHER DELINQUENT ACCOUNTS
FIRM shall, upon written request of City, undertake the collection of delinquent accounts
for paving assessment liens, substandard housing demolition liens, and weed liens. The collection
of these accounts shall be undertaken on the basis of attorney fees assessed to and collected from the
debtors. CITY agrees to pay FIRM, as compensation, all amounts received as attorney fees on
delinquent accounts for paving assessment liens, substandard housing demolition liens, and weed
liens which are collected as a result of FIRM's collection efforts during the term of this Contract.
11. CONFLICTS OF INTEREST
FIRM agrees not to represent any client who has an adversary position with the City of
Denton or engage in any conflict of interest, and agrees to comply fully with the Texas Disciplinary
Rules of Professional Conduct (Subtitle G - Texas Government Code) for the duration of this
Contract.
12. TERM
This Contract shall have a term of three years, beginning on July 1, 2005, and ending on
June 30, 2008. This Contract may be extended for two additional one-year terms, upon CITY
Page 4ofI I
giving written notice to FIRM of its desire to continue this Contract at least 30 days prior to the
expiration of the initial three-year term. This Contract shall continue in full force and effect from
month to month at the option of CITY, unless either party delivers written notice to the other parry
of its intent to terminate this Contract at least 30 days prior to the date of the intended termination.
FIRM shall have an additional six months to reduce to judgment and sale all tax collection lawsuits
filed and collect all bankruptcy claims filed prior to the termination date, and shall have the
exclusive right to compensation of fees earned due to these suits during this six month period.
CITY shall have the right to sooner terminate this Contract by giving 30 days' written notice of such
intention, or in the event of any of the events taking place under Section 33 "Termination of
Agreement" of this Contract. In case of such termination, FIRM shall be entitled to receive and
retain all compensation due up to the date of said termination. Upon termination, FIRM shall
immediately deliver all files in their entirety to CITY at no cost to CITY.
13. ATTORNEY FEES
In eminent domain and other judicial proceedings, FIRM will be entitled to only those
attorney fees awarded by the court, and then only if collected by CITY. In bankruptcy proceedings,
FIRM shall be entitled to a fee of 20% of the tax, penalties, and interest actually collected by CITY.
FIRM agrees to file and diligently pursue all claims on behalf of CITY in bankruptcy, eminent
domain, and other judicial or administrative proceedings, whether federal or state in nature.
14. TAX WARRANTS
Upon request and authorization of CITY, FIRM shall prepare and pursue the issuance of tax
warrants. FIRM shall then coordinate the seizure of personal property, pursuant to warrant. FIRM
shall accompany the Tax Collector to the location of the personal property which is to be seized to
insure that all necessary procedures have been followed.
15. SETTLEMENTS
No settlements or compromises of taxes, penalties, or interest shall be effected where
prohibited by law, and only upon approval by CITY where authorized by law. If a taxpayer
requested waiver is upheld as provided by Tex. Prop. Tax Code §33.011, FIRM will bear the costs
of suit if it failed to notify the taxpayer of the delinquency prior to filing of the suit.
16. NOTICE
Any notice or other written instrument required or permitted to be delivered pursuant to the
terms of this Contract shall be deemed to have been delivered, whether actually received or not,
when deposited in the United States mail, postage prepaid, registered or certified, return receipt
requested, addressed to CITY or FIRM, as the case may be, at the following addresses:
Page 5ofI I
CITY FIRM
City of Denton, Texas Sawko & Burroughs, L.L.P.
ATTN: Assistant City Manager ATTN: Gregory J. Sawko or Mark A.Burroughs
215 E. McKinney 1100 Dallas Drive, Suite 100
Denton, Texas 76201 Denton, Texas 76205
Either party may change its mailing address by sending notice of change of address to the
other at the above address by certified mail, return receipt requested.
17. COLLECTION REQUIREMENTS
FIRM agrees to collect, between July 1, 2005 and June 30, 2006, not less than 60% of the
total dollar value of the adjusted base tax of the 2004 delinquency existing on July 1, 2005, and
not less than 30% of the aggregate delinquent tax roll each 12 months. FIRM agrees to collect,
between July 1, 2006 and June 30, 2007, not less than 60% of the total dollar value of the
adjusted base tax of the 2005 delinquency existing on July 1, 2006, and not less than 30% of the
aggregate delinquent tax roll each 12 months. FIRM agrees to collect, between July 1, 2007 and
June 30, 2008, not less than 60% of the total dollar value of the adjusted base tax of the 2006
delinquency existing on July 1, 2007, and not less than 30% of the aggregate delinquent tax roll
each 12 months. Furthermore, should CITY invoke the option to extend this Contract beyond
June 30, 2008, as prescribed in Section 12, FIRM agrees to collect, between July 1st and
subsequent June 30t' each year the contract is extended, not less than 60% of the total dollar
value of the adjusted base tax from the most recent tax year of the delinquency existing on July
1st of each respective year, and not less than 30% of the aggregate delinquent tax roll each 12
months. If FIRM does not collect the above referenced amount each year, it shall provide CITY
with legal services, programming and computer services, or data processing equipment with a
value not less than ten thousand dollars ($10,000.00), or, at the option of CITY, FIRM shall pay
CITY the sum of ten thousand dollars ($10,000.00) on or before August 15t'' of the year it fails
to collect the minimum amount specified herein.
18. VENUE
The terms, obligations, and requirements of this Contract shall be construed in accordance
with the laws of the State of Texas. The obligations and requirements of the parties hereto are
performable in Denton County, Texas. Any litigation involving this Contract shall be tried in a
court of competent jurisdiction sitting in Denton County, Texas.
19. ACCEPTANCE OF EMPLOYMENT
In consideration of the terms, covenants, and mutual agreements hereinabove stated, FIRM
hereby accepts the employment of CITY, and undertakes the performance of this Contract as above
stated.
20. DIRECTIVES
All directives between FIRM and CITY shall be confirmed in writing.
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21. COVENANT NOT TO SUE
FIRM further agrees not to bring any cause of action against CITY relative to this Contract.
Should FIRM bring any cause of action against CITY, FIRM agrees the liquidated damages shall
not exceed $1.00, and the filing of such cause of action shall be considered a material breach of this
Contract.
22. AMBIGUITY
Any ambiguity within this Contract shall be liberally interpreted in favor of CITY.
23. ASSIGNMENT
The rights and responsibilities of CITY under this Contract may be assigned by the City
Council to another governmental unit in Denton County without approval of FIRM. It is
understood and agreed that this is a professional services contract, and CITY is contracting for the
unique services of FIRM. FIRM's rights and responsibilities under this Contract may not be
assigned by FIRM to another law firm or collection agency without written approval of the
assignment by the City Council.
24. INDEMNITY AGREEMENT
FIRM shall indemnify, save, and hold harmless 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 fees incurred by CITY, and
including, without limitation, damages for bodily and personal injury, death and property damage,
resulting from the negligent acts or omissions of FIRM or its officers, shareholders, agents, or
employees in the execution, operation, or performance of this Contract.
Nothing in this Contract shall be construed to create a liability to any person who is not a
party to this Contract. 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 Contract, including the
defense of governmental immunity, which defenses are hereby expressly reserved.
25. INSURANCE
During the performance of the services under this Contract, FIRM shall maintain the
following insurance with an insurance company licensed to do business in the State of Texas by the
State Insurance Commission (or its successor), having a Best Rate Carriers rating of A- or above:
Professional liability insurance with limits of not less than $1,000,000 annual aggregate.
FIRM shall furnish insurance certificates or insurance policies at CITY's request to evidence
such coverages. The insurance policies shall name CITY as an additional insured on all such
policies, and shall contain a provision that such insurance shall not be canceled or modified without
Page 7 of I I
30 days prior written notice to CITY and FIRM. In such event, FIRM shall, prior to the effective
date of the change or cancellation, serve substitute policies furnishing the same coverage.
26. ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree to settle any disputes under this Contract 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 Contract, involving one parry's
disagreement, may include the other parry to the disagreement without the other's approval.
27. ENTIRE AGREEMENT
This Contract, consisting of 12 pages and two exhibits, constitutes the complete and final
expression of the agreement of the parties, and is intended as a complete and exclusive statement of
the terms of their agreements. This Contract supersedes all prior contemporaneous offers, promises,
representations, negotiations, discussions, communications, and agreements which may have been
made in connection with the subject matter hereof.
28. COMPLIANCE WITH LAWS
FIRM shall comply with all federal, state, and local laws, rules, regulations, and ordinances
applicable to the work covered hereunder as they may now read or hereinafter be amended.
29. DISCRIMINATION PROHIBITED
In performing the services required hereunder, FIRM shall not discriminate against any
person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical
handicap.
30. PERSONNEL AND EQUIPMENT
A. FIRM represents that it has or will secure, at its own expense, all personnel required to
perform all the services required under this Contract. Such personnel shall not be
employees or officers of, or have any contractual relations with, CITY. FIRM shall inform
CITY of any conflict of interest or potential conflict of interest that may arise during the
term of this Contract.
B. All services required hereunder will be performed by FIRM, or under its supervision. All
personnel engaged in work shall be qualified, and shall be authorized and permitted under
state and local laws to perform such services.
C. FIRM represents that it has or will secure, at its own expense, the hardware, software, and
other resources required to perform, all the services required under the terms of this contract
in a timely manner.
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31. ASSIGNABILITY
FIRM shall not assign any interest in this Contract, and shall not transfer any interest in this
Contract (whether by assignment, novation, or otherwise) without the prior written consent of
CITY.
32. TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Contract, either parry may terminate by giving
30 days advance written notice to the other party.
B. This Contract may be terminated, in whole or in part, in the event of either party
substantially failing to fulfill its obligations under this Contract. No such termination will be
effective unless the other parry is given: (1) written notice, delivered by certified mail,
return receipt requested, of intent to terminate, setting forth the reasons, specifying the
nonperformance, and giving the other party not less than 30 calendar days to cure the
failure; and (2) an opportunity for consultation with the terminating party prior to
termination.
C. If the Contract is terminated prior to completion of the services to be provided hereunder,
FIRM shall immediately cease all services and shall render a final bill for services to CITY
within 30 days after the date of termination. CITY shall pay FIRM 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 9 "Compensation".
Should CITY subsequently contract with a new consultant for the continuation of services
outlined in this Contract, FIRM shall cooperate in providing information. FIRM shall turn
over all documents prepared or furnished by FIRM, pursuant to this Contract, to CITY on or
before the date of termination, but may maintain copies of such documents for its use.
33. MODIFICATION
No waiver or modification of this Contract, or of any covenant, condition, or limitation
herein contained shall be valid, unless in writing and duly executed by the parry to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence in
any proceeding arising between the parties hereto, out of, or affecting this Contract, or the rights or
obligations of the parties hereunder, unless such waiver or modification is in writing and duly
executed. The parties further agree that the provisions of this section will not be waived unless as
herein set forth.
34. INDEPENDENT CONTRACTOR
FIRM shall provide services to CITY as an independent contractor, not as an employee of
CITY. FIRM shall not have or claim any right arising from employee status.
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35. MISCELLANEOUS
A. The following exhibits are attached to and made a part of this Contract: Exhibit "A" -
Request for Proposals; Exhibit "B" - Addendum, Exhibit C - FIRM's proposal.
B. FIRM agrees that CITY shall, until the expiration of three years after the final payment
under this Contract, have access to and the right to examine any directly pertinent books,
documents, papers, and records of FIRM involving transactions relating to this Contract.
FIRM agrees that CITY shall have access, during normal working hours, to all necessary
FIRM facilities, and shall be provided adequate and appropriate working space in order to
conduct audits in compliance with this section. CITY shall give FIRM reasonable advance
notice of intended audits.
C. For the purpose of this Contract, the key persons who will perform most of this work
hereunder shall be Gregory J. Sawko and Mark A. Burroughs. However, nothing herein
shall limit FIRM from using other qualified and competent members of its firm to perform
the services required herein.
D. FIRM shall commence, carry on, and complete any and all projects with all applicable
dispatch, in a sound, economical, efficient manner, and in accordance with the provisions
hereof. In accomplishing the services hereunder, FIRM shall take such steps as are
appropriate to ensure that the work involved is properly coordinated with related work being
carried on by CITY.
E. CITY shall assist FIRM by placing at FIRM's disposal all available information pertinent to
the services outlined in this Contract, including previous reports and any other data relative
to the services outlined in this Contract, and arranging for the access thereto. CITY shall
make all provisions for FIRM to enter in or upon public and private property as required for
FIRM to perform services under this Contract.
36. TIME OF THE ESSENCE
Time is of the essence with respect to all matters covered by this Contract.
37. CAPTIONS
The captions appearing at the first of each numbered section are inserted and included solely
for convenience, and shall never be considered or given any effect in construing this Contract.
This Contract is executed on behalf of CITY by the presiding officer of its governing body
who is authorized to execute this instrument by order heretofore passed and duly recorded in its
minutes and by a partner of FIRM who, by execution of this Contract, represents and warrants that
he or she has the authority to execute this document on behalf of FIRM.
Page 10 of I I
WITNESS the signature of all parties hereto in triplicate originals this the day of
2005, Denton County, Texas.
CITY OF DENTON, TEXAS
MICHAEL A. CONDUFF
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN SNYDER, INTERIM CITY ATTORNEY
BY:
SAWKO & BURROUGHS, L.L.P.
BY:
Page 11 of 11
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Sharon Mays 349-8487
ACM: Kathy DuBose
SUBJECT
Consider adoption of an Ordinance of the City of Denton, Texas providing for, authorizing, and
approving the expenditure of funds for the purchase of a four channel addition to the Smartnet
Radio System from Motorola, which is available from only one source in accordance with the
pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such
purchases from the requirements of competitive bidding; and providing an effective date (File
3349-Addition to Smartnet Radio System in the amount of $37,526). (The Public Utility Board
approved this item by a vote of 3-0).
FILE INFORMATION
From 1987 to present, the City of Denton has utilized an 8-frequency, trunked radio system.
Last year, DME was able to purchase 4 additional frequencies, thereby allowing expansion to a
12-channel system. These frequencies are scarce. The ability to expand the number of
frequencies available for City operation, which will allow coverage of additional radio traffic as
the City grows, is critical. In order for DME to retain the frequencies it has purchased, they must
be put in service. Since these frequencies are so scarce, the Federal Communications
Commission will not allow DME to simply hold the frequencies for future use. To this point,
around 90% of the work required to add the 4 channels to the radio system has been done in
house. The final stages require system-level programming and the purchase of proprietary
equipment from Motorola.
The 800MHz trunked radio system is an integral part of public safety and utility operations. This
upgrade will ensure adequate communications capabilities into the foreseeable future.
As indicated in the letter from Motorola dated June 1, 2005 (Attachment 3). The required
equipment, software and services are proprietary items and only available from a single source.
Chapter 252 of the Texas Local Government Code exempts from the competitive bid process,
those supplies and resources protected by copyright or patent and available from only one
source.
RECOMMENDATION
Award to Motorola in the amount of $37,526.
Agenda Information Sheet
June 21, 2005
Page 2
ESTIMATED SCHEDULE OF PROJECT
Equipment associated with this project will be shipped by Motorola upon receipt of our purchase
order. Motorola's engineers (located in Dallas) will be installing our equipment and software
upon delivery. Estimated completion date is August 1, 2005.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
The Public Utility Board approved this item at its June 13, 2005 meeting. The purchase of the 4
new channels from Texas Instruments, the FCC licensing and the associated Motorola
transmitter equipment was approved by the Public Utilities Board and City Council last year for
this project.
PRINCIPAL PLACE OF BUSINESS
Motorola
Schaumburg, IL
FISCAL INFORMATION
Funding for this item is available from project accounts 600924487.1350.3970 and
600924487.1360.3970.
Respectfully submitted:
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Quote
Attachment 2: Functional System Description
Attachment 3: Sole Source Letter
I-AIS-File 3349
Attachment 1
CITY OF DENTON
FOUR CHANNEL ADDITION TO SINGLE SITE SMART
AND BACKUP SITES/UPGRADE SITE LENS 19-May-05
Item Qty Model Description Unit Extended
1 1 T6358 MTC 3600 SMARTNET SINGLE SITE SOFTW 5650 5650
2 1 B1841 CENTRACOM GOLD INTERFACE MODULE FOR 1561 1561
2a 1 K146AB ENH: RETAIN TONE REMOTE CONTROL 0 0
2b 1 K700 ADD: RELAY, PTT OUTPUT (M-LEAD CONT 81 81
2c 1 K380 ADD: INPUT, CARRIER OPERATED RELAY 47 47
3 1 B1841 CENTRACOM GOLD INTERFACE MODULE FOR 1561 1561
3a 1 K146AB ENH: RETAIN TONE REMOTE CONTROL 0 0
3b 1 K700 ADD: RELAY, PTT OUTPUT (M-LEAD CONT 81 81
3c 1 K380 ADD: INPUT, CARRIER OPERATED RELAY 47 47
4 1 B1841 CENTRACOM GOLD INTERFACE MODULE FOR 1561 1561
4a 1 K700 ADD: RELAY, PTT OUTPUT (M-LEAD CONT 81 81
4b 1 K146AB ENH: RETAIN TONE REMOTE CONTROL 0 0
4c 1 K380 ADD: INPUT, CARRIER OPERATED RELAY 47 47
5 1 B1841 CENTRACOM GOLD INTERFACE MODULE FOR 1561 1561
5a 1 K700 ADD: RELAY, PTT OUTPUT (M-LEAD CONT 81 81
5b 1 K146AB ENH: RETAIN TONE REMOTE CONTROL 0 0
5c 1 K380 ADD: INPUT, CARRIER OPERATED RELAY 47 47
6 1 B1827 CENTRACOM GOLD SOFTWARE LICENSE MAN 110 110
6a 4 X296 ADD: SOFTWARE LICENSE, SMARTNET CHA 500 2000
7 1 B1425 CENTRACOM GOLD FIELD-ADD CEB CARD CAGE 5267 5267
8 1 B1820B SINGLE CEB PS 120/240V 50/60HZ 5500 5500
TOTAL LINE ITEM AMOUNT 25,283.00
Install: See Statement of Work 0
Program Mgmt./Technical Services/Programming 12,243.00
System Test: See Statement of Work 0
0
GRAND TOTAL 37,526.00
Attachment 2
City of Denton
Four Channel Addition to Single Site Smartnet and Dispatch Sites
Functional System Description
This document describes upgrade procedures for adding four channels to the existing City
of Denton single site, Smartnet trunked radio system (McKenna Site). Motorola is not
providing any new racks, cables, power systems or surge suppression (beyond those
specified below). The City of Denton is responsible for tower loading studies and all
equipment and accessories not specifically identified in this document. Project delays
due to uncertified configurations or customer delays in installation/cabling may result in
additional project costs. Motorola is not responsible for degraded performance due to
uncertified configurations.
McKenna Site
Repeaters
The City of Denton is providing four QUANTAR repeaters to add to an
eight channel trunked system, for a total of twelve channels. Motorola has
audited each of these repeaters, plus one extra that is recommended as a backup or
NPSPAC repeater. From a system maintenance standpoint, Motorola
recommends each repeater by refreshed with the latest version of firmware.
However, at the request of the City, Motorola is providing no repeater upgrades
(hardware or software) in this quote. The City of Denton is to rack and cable all
equipment.
Controller & Transport
To support the four new channels, Motorola is providing and loading an
updated MTC3600 codeplug. Four ports and cables are required for the new
channels, to be supplied by the City. Motorola is providing no new channel bank
cards or alarm board upgrades at the McKenna site. Motorola will program the
existing Channel Bank to accommodate transport for four new channels.
RF Systems
Motorola is providing no RF system components, upgrades, or services in
this quote.
Dispatch Site
Motorola is providing four new TBIM cards and cables for the existing
City of Denton Central Electronics Bank (CEB).
included assuming there is adequate space within the room for installation that do
not require any removals or rearrangements of existing equipment. New
CENTRACOM Gold Elite licenses to support the four new trunked channels are
included in this quote. Motorola will configure the existing Gold Elite Admin
Server to recognize the new channels. The new resources can be made available
Attachment 2
to the dispatch positions after the MTC3600 upgrade and the TBIM cards are
installed and cabled.
Four Channel Bank audio ports and cables are required for the new
channels. Each of these items is to be supplied by the City. Motorola is
providing no new channel bank cards at the Dispatch site. Motorola will program
the existing Channel Bank to accommodate transport for four new channels.
Summary of deliverables:
Motorola will supply and install updated codeplugs into existing MTC3600 controller
Motorola will program existing channel banks
Motorola will reconfigure software in existing Site Lens
A certificate of completion will be signed once these items are completed.
No other functions will be performed by Motorola and are the responsibility of The City
of Denton.
Jun, 3. 2035 1:389M No 22~fl P. 1
Attachment 3
June 1, 2005
City of Denton, Texas
Attn: Harry Hettinger
901-A Texas Street
Denton, Texas 76209
Larry,
Thank you for the opportunity to provide The City of Denton with pricing information for
the upgrade and expansion of your current Motorola SmartNet Trunked Radio System
The proposal attached, consisting of an equipment list in the amount of $37,526.00 and
the Functional System Description, are equipment and services to be provided by
Motorola for the upgrade and expansion of your system for four additional channels.
Motorola's SmartNet Technology is a proprietary protocol and the equipment for this
systems and technology is provided only by Motorola Factory Direct Representation. The
equipment and parts required are a sole source procurement which allows Motorola
Direct Integration and Implementation of your current SmartNet Public Works and Public
Safety Radio system.
Should you have any questions or require additional infonution, please do not hesitate to
contact me at 972-977-8022
Regards,
o cola, Inc-
Becky S
Account Manager
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR,
AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE
PURCHASE OF A FOUR CHANNEL ADDITION TO THE SMARTNET RADIO
SYSTEM FROM MOTOROLA, WHICH IS AVAILABLE FROM ONLY ONE
SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER
252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH
PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND
PROVIDING AN EFFECTIVE DATE (FILE 3349-ADDITION TO SMARTNET
RADIO SYSTEM IN THE AMOUNT OF $37,526).
WHEREAS, Section 252.022 of the Local Government Code provides that
procurement of items that are only available from one source, including; items that are
only available from one source because of patents, copyrights, secret processes or natural
monopolies; films, manuscripts or books; electricity, gas, water and other utility
purchases; captive replacement parts or components for equipment; and library materials
for a public library that are available only from the persons holding exclusive distribution
rights to the materials; need not be submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or more of the items
mentioned in the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The following purchase of materials, equipment or supplies, as
described in the "File" listed hereon, and on file in the office of the Purchasing Agent,
and the license terms attached are hereby approved:
FILE
NUMBER VENDOR AMOUNT
3349 Motorola $37,526
SECTION 2. The acceptance and approval of the above items shall not
constitute a contract between the City and the person submitting the quotation for such
items until such person shall comply with all requirements specified by the Purchasing
Department.
SECTION 3. The City Manager is hereby authorized to execute any contracts
relating to the items specified in Section 1 and the expenditure of funds pursuant to said
contracts is hereby authorized.
SECTION 4. That this ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this the day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
3-ORD-File 3349
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Mark Nelson 349-7702
ACM: Kathy DuBose
SUBJECT
Consider adoption of an Ordinance accepting competitive bids and awarding a contract for the
purchase of two Type III Transit Buses; providing for the expenditure of funds therefore; and
providing an effective date (Bid 3336-Type III Transit Buses awarded to Lasseter Bus Company
Inc. in the amount of $128,170).
BID INFORMATION
This bid is for the purchase of two additional Type III transit buses with eight passenger and
three wheelchair positions. These Type III buses are low sulfur diesel powered and meet EPA
emission standards.
PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS)
Council considered and approved an amendment to the Interlocal Agreement between the City of
Denton and DCTA authorizing the purchase of two demand response vehicles for LINK,
utilizing VCR grants, on June 7, 2005.
RECOMMENDATION
Award to the lowest responsible bidder, Lasseter Bus Company Inc. in the amount of $128,170.
This amount includes all options as listed on the tabulation sheet.
PRINCIPAL PLACE OF BUSINESS
Lasseter Bus Company Inc.
Lewisville, TX
ESTIMATED SCHEDULE OF PROJECT
Delivery of these buses is estimated to be the third week in October 2005.
Agenda Information Sheet
June 21,2005
Page 2
FISCAL INFORMATION
Funding for these buses will be from a combination of Vehicle Capital Replacement Grants
(VCR) under the State/Local Urban Public Transportation Agreements through the Department
of Transportation.
Respectfully submitted:
1-zz7-
Tom Shaw, C.P.M., 349-7100
Attachment 1: Bid Tabulation
1-AIS-Bid 3336 Type III Transit Buses
Bid # 3336 Attachment 1
Date: 5/3/05
Type III Transit Buses
Lasseter Bus & National Bus National Bus
Mobility Sales Sales - Alt. Bid
Principle Place of Business: Lewisville, TX Marietta, GA Marietta, GA
1 2 Type 3 Transit Bus $59,375.00 $58,577.00 $64,773.00
Optional Equipment
2 (See Items 43-46 for
Additional Details)
A. Passenger Door
Outside Access Switch $50.00 $65.00 $50.00
B. Plexiglass Panel $160.00 $74.00 $115.00
C. Large Storage Area $100.00 $110.00 $90.00
D. Telma Brake $4,400.00 $6,603.00 $7,450.00
Retarder
Net Each $64,085.00 $65,429.00 $72,478.00
Total Cost $128,170.00 $130,858.00 $144,956.00
3 Shipment 120 Days 120 Days 120 Days
ORDINANCE NO.
AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR
THE PURCHASE OF TWO TYPE III TRANSIT BUSES; PROVIDING FOR THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID
3336-TYPE III TRANSIT BUSES AWARDED TO LAS SETER BUS COMPANY INC. IN THE
AMOUNT OF $128,170).
WHEREAS, the City has solicited, received and tabulated competitive bids for the purchase
of necessary materials, equipment, supplies or services in accordance with the procedures of State
law and City ordinances; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended
that the herein described bids are the lowest responsible bids for the materials, equipment, supplies
or services as shown in the "Bid Proposals" submitted therefor; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The numbered items in the following numbered bids for materials, equipment,
supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent,
are hereby accepted and approved as being the lowest responsible bids for such items:
BID
NUMBER VENDOR AMOUNT
3336 Lasseter Bus Company Inc. $128,170
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
bids, the City accepts the offer of the persons submitting the bids for such items and agrees to pur-
chase the materials, equipment, supplies or services in accordance with the terms, specifications,
standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and
related documents.
SECTION 3. Should the City and the winning bidder(s) wish to enter into a formal written
agreement as a result of the acceptance, approval, and awarding of the bids, the City Manager or his
designated representative is hereby authorized to execute a written contract in accordance with the
terms, conditions, specifications, standards, quantities and specified sums contained in the Bid
Proposal and related documents and to extend that contract as determined to be advantageous to the
City of Denton.
SECTION 4. By the acceptance and approval of the above enumerated bids, the City
Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with
the approved bids.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
3-ORD-Bid 3336
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Economic Development
CM: Mike Conduff im
SUBJECT
Consider adoption of an ordinance of the City Council of the City of Denton, Texas approving an
Amendment to that agreement between the City of Denton and the Denton Affordable Housing
Corporation; authorizing the City Manager to execute the Amendment and to expend funds with
respect to the Amendment; and providing for an effective date.
BACKGROUND
The Denton Affordable Housing Corporation (DAHC) has requested that they be given
authorization to use $125,000 in Affordable Housing Opportunity Program (AHOP) proceeds to
the Nevada Courts Development project. AHOP proceeds are those funds received from the sale
of single-family properties sold to eligible homebuyers. The single-family units were purchased
and rehabilitated by DAHC. Funding for each project included new HOME funds and could
have also included proceeds from previously expended HOME funds. AHOP proceeds are
continuously recycled into the program.
DAHC would like to use $125,000 from AHOP proceeds to pay construction costs on ten new
housing units. The Nevada Court Development is funded primarily through the Section 811
program. Section 811 is a federally funded program that provides assistance to housing
developments targeting the needs of elderly and the disabled. The units DAHC will build at the
intersection of Mockingbird and Paisley will provide affordable housing to persons with
disabilities.
On February 3, 2004, the City Council adopted Ordinance 2004-036 approving a request to
rezone approximately two acres of the 5.5-acre Nevada Court site from the NR-4 zoning
designation to an NR-6 zone.
ESTIMATED PROJECT SCHEDULE
Infrastructure work has begun. Construction of the units will begin in September 2005. All units
should be complete and available for rental in September 2006.
PRIOR ACTION/REVIEW (Councils, Boards, Commissions)
N/A.
FISCAL INFORMATION
Reallocation of the proceeds income will not affect the 2005 Action Plan budget that provides
$140,000 in HOME funds for AHOP. These 2005 funds will be used for the homebuyer
program.
EXHIBITS
1. Ordinance with Amendment attached
2. Contract
3. Letter of request from DAHC
Respectfully submitted:
Linda Ratliff
Economic Development
Prepared by:
Barbara Ross
Community Development
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
APPROVING AN AMENDMENT TO THAT AGREEMENT BETWEEN THE CITY OF
DENTON AND THE DENTON AFFORDABLE HOUSING CORPORATION DATED
FEBRUARY 1, 2005; AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AMENDMENT; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on February 1, 2005 the City Council entered into an Agreement with the
Denton Affordable Housing Corporation to provide certain services for the provision of
affordable housing under the National Affordable Housing Act of 1990, as amended by the
Housing and Community Development Act of 1992, which Agreement was authorized by
Ordinance No. 2005-043; and
WHEREAS, the Denton Affordable Housing Corporation has requested that the
Agreement be amended to allow the use of Affordable Housing Opportunity Program (AHOP)
proceeds in the amount of $125,000 to support the Nevada Court Development project to
construct ten rental units for persons with disabilities on a site at the intersection of Mockingbird
and Paisley Streets; and
WHEREAS, the use of AHOP proceeds in this manner is in compliance with the HOME
Program regulations at 24 CFR Part 92 and will meet the goal of providing affordable housing to
persons with disabilities; and
WHEREAS, the City Council deems it in the public interest to amend the Agreement
with the Denton Affordable Housing Corporation to provide for the use of AHOP proceeds for
this purpose; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES:
SECTION 1. The City Council hereby approves this Amendment to the Agreement
between the City of Denton and the Denton Affordable Housing Corporation, executed February
1, 2005, substantially in the form of the attached Exhibit "A" which is incorporated herein for all
purposes (the "Amendment"). The City Manager, or his designee, is authorized to execute the
Amendment on behalf of the City.
SECTION 2. The City Council authorizes the expenditure of AHOP proceeds by the
Denton Affordable Housing Corporation in an amount not to exceed $125,000 for the Nevada
Court Development construction costs, included in the Amendment.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 2005.
Page 1
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY TTORNEY
BY:
Page 2
EXHIBIT "A"
AMENDMENT TO AGREEMENT BETWEEN
THE CITY OF DENTON AND THE
DENTON AFFORDABLE HOUSING CORPORATION
This agreement is an amendment to that certain Agreement between the City of Denton
(the "City") and the Denton Affordable Housing Corporation (the "Contractor") dated February
1, 2005 (the "Base Agreement").
WHEREAS, by Ordinance No. 2005-043, the City Council of the City approved the Base
Agreement with the Contractor to provide acquisition and renovation, and new construction to
promote affordable housing in the City of in return for City providing an amount not to exceed
$140,000 for affordable housing projects described in the Work Statement, Attachment A,
attached to the Base Agreement; and
WHEREAS, the City Council has approved a change of use in regard to the Affordable
Housing Opportunity Program proceeds so that they may be used to support the Nevada Court
Development providing accessible housing for persons with disabilities:
NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to
the mutual obligations and to the performance and accomplishment of the conditions hereinafter
described.
1.
Section 2. "Responsibilities" of the Base Agreement, subsection A is amended to read as
follows:
Contractor hereby accepts the responsibility for the performance of all services and
activities described in the amended Work Statement attached hereto as Attachment "A"
and incorporated herein as if set forth at length, in accordance with the amended Program
Budget attached hereto as Attachment "B" and the amended Schedule of Contract.
Activities attached hereto as Attachment "C" and incorporated herein as if set forth at
length, in as satisfactory and efficient manner as determined by City in accordance with
the terms herein.
2.
Tthe Base Agreement is hereby amended by substituting amended Attachments "A",
"B", and "C" which are attached hereto and incorporated herein for all purposes for the original
Attachments "A", "B", "C" of the Base Agreement.
3.
Page 1
Save and except as amended hereby, the remaining sections, subsections, sentences and
clauses of the Base Agreement shall remain in full force and effect.
Signed to be effective the - day of , 2005.
CITY OF DENTON
MICHAEL A. CONDUFF
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN SNYDER, CITY ATTORNEY
BY:
DENTON AFFORDABLE HOUSING
CORPORATION
LINNIE MCADAMS
BOARD PRESIDENT
ATTEST:
BY:
BOARD SECRETARY
Page 2
ATTACHMENT "A"
WORK STATEMENT AND PERFORMANCE OUTCOME GOALS
Denton Affordable Housing Corporation
The Denton Affordable Housing Corporation ("DAHC") was developed to increase the supply of
affordable housing in the Denton area.. The organization is designed to carry out the following
activities but is not limited to these: administration, rehabilitation, acquisition, new construction,
tenant-based rental assistance and public service programs.
Expenditure of City funds for housing projects is limited to projects within the city limits of Denton.
DAHC's projects and programs will primarily benefit low and moderate-income households. Low
and moderate income is defined as households below 80% of the area median income.
The Affordable Homeownership Opportunity Program provides for acquisition, renovation and
sale of single-family units. HOME Program 2004-2005 funding in the amount of $140,000 will be
used in the Program. Proceeds from the sale of completed projects will be placed in the AHOP
program fund for future projects. Each project must include a minimum of $1,000 and no more
than $35,000 in 2004205 HOME funding. No more than 10% of the HOME portion of the project
sales proceeds may be used for project delivery costs for the program. The HOME portion of the
proceeds is based on the percentage of HOME funds included in the project. A minimum o our 4
units will be sold to low and moderate income homebuyers.
The Affordable Housing Construction Program provides funding to construct single-family
units. Properties suitable for single-family housing will be acquired through purchase or donation.
Units will be constructed in such a way as to make them affordable to low and moderate-income
households. Units will be sold to HOME-eligible households. Not more than 10% of the total
funding amount may be used to assist buyers with down payment and closing costs. A minimum of
one 1 unit will be constructed and sold to low and moderate-income homebu ers.
The Nevada Court Development Project provides use of program proceeds to construct rental
units that will be available to persons with disabilities. Section 811 funding awarded to DAHC by
the US Department of Housing and Urban Development will also be used to support the project.
Rent levels of the units will remain affordable for a minimum of a ten-year period after units are
available for occupancy.
Page 3
ATTACHMENT "B"
PROGRAM BUDGET
Affordable Homeownership Opportunity Program $140,000 (2004-05 funding)*
Affordable Housing Construction Program no 2004-2005 funding*
Nevada Court Development $125,000 in AHOP proceeds
* All program proceeds except for those used to support the Nevada Court Development will be
used for program projects.
Page 4
5:Oar Do en%S r"uutO5WAHC Amendment-HOME-exhibit A-DOC
ATTACHMENT "C"
SCHEDULE OF CONTRACT ACTIVITIES
Activity Jan - Mar Aril - June Jul - Sept Oct - Dec Total
Affordable Housing Opportunity Program -
Acquisition, Rehabilitation, Homebuyer 0 $35,000 $70,000 $35,000 $140,000
Asst. (2004-05 funding)
New Construction Program Use of Program Proceeds to Construct Additional Unit(s)
Nevada Court Development (proceeds) 0 0 0 $125,000 $125,000
S:~Mr Dwumen~ kCM ec 050AHC mntn+n.DOC
AGREEMENT BETWEEN THE CITY OF DENTON
AND THE DENTON AFFORDABLE HOUSING CORPORATION
This Agreement between the City of Denton and the Denton Affordable Housing
Corporation ("Agreement") is made and entered into by and between the City of Denton, a Texas
municipal corporation ("CITY"), acting by and through its City Manager, pursuant to ordinance, and
the Denton Affordable Housing Corporation, Denton, Texas a certified non-profit community
housing development corporation, ("CONTRACTOR").
WHEREAS, CITY has received funds from the U. S. Department of Housing and Urban
Development under the National Affordable Housing Act of 1990 as amended by the Housing and
Community Development Act of 1992;
WHEREAS, CITY has adopted a budget for such funds and included therein an authorized
Program Budget for expenditure of funds for provision of an affordable housing program by the
Denton Affordable Housing Corporation included as Attachment "B";
WHEREAS, CITY has designated the Community Development Division as the division
responsible for the administration of this Agreement and all matters pertaining thereto; and
WHEREAS, the City Manager has determined that CONTRACTOR is the only state-
certified community housing development organization (CHDO) that includes the required number
of low-income citizens from the CITY on its board of directors to satisfy federal requirements
necessary to serve the CITY's geographical area; that the CONTRACTOR has provided
management services to the CITY to promote affordable housing within the CITY which has
significantly benefited the community; and CONTRACTOR has a demonstrated history of
significant service to the community in the area of affordable housing; and
WHEREAS, CITY wishes to engage CONTRACTOR to carry out such project;
NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the
mutual obligations and to the performance and accomplishment of the conditions hereinafter
described.
1.
TERM
This Agreement shall commence on or as of February 15, 2005, and shall terminate on
December 31, 2005, unless adjusted by the CITY. Request for such an adjustment must be in
writing and is to be submitted to the Community Development Division.
2.
RESPONSIBILITIES
A. CONTRACTOR hereby accepts the responsibility for the performance of all services
and activities, described in the Work Statement attached hereto as Attachment "A" and incorporated
herein as if set forth at length, in accordance with the Program Budget attached hereto as Attachment
"B" and the Schedule of Contract Activities attached hereto as Attachment "C" and incorporated
herein as if set forth at length, and as otherwise set forth herein, in a satisfactory and efficient manner
as determined by CITY, in accordance with the terms herein.
B. CONTRACTOR's executive director shall be CONTRACTOR's representative
responsible for the management of all contractual matters pertaining hereto, unless written notifica-
tion to the contrary is received from CONTRACTOR, and approved by CITY.
C. CONTRACTOR agrees that all individual projects under the Affordable Housing
Opportunity Program and the New Construction Program described in Attachment "A" to be
assisted with HOME funds will have prior approval from the CITY of Denton. CONTRACTOR
agrees that project delivery costs paid with HOME funds or HOME proceeds will not exceed more
than 10% of the total project cost as determined by the CITY.
D. The CITY's Community Development Administrator will be CITY's representative
responsible for the administration of this Agreement.
E. CONTRACTOR shall be certified as a "Community Housing Development
Organization" (CHDO) with the State of Texas and the City of Denton. CONTRACTOR shall
maintain CHDO Certification for the duration of the contract term.
F. CONTRACTOR shall not request disbursement of funds until they are needed for
payment of eligible costs. The amount of each request will be limited to the amount needed as per
92.504 (c)(3)(viii).
G. CONTRACTOR shall not change the Program Budget without prior written
approval from the CITY.
H. CITY shall be responsible for performing a general environmental review to insure
necessary compliances are met.
1. CONTRACTOR shall be responsible for performing a site-specific environmental
review prior to acquisition of properties to be used for affordable housing projects. The site-specific
review must be submitted to the Community Development Division prior to final project approval.
J. CONTRACTOR shall conduct a public hearing at least once annually to review
proposed and in-progress activities and receive citizen input. Hearing(s) will be advertised at least
15 days in advance. Advertising, at a minimum, must include publication in a newspaper with local
circulation. The hearing may be combined with CONTRACTOR's annual membership meeting. A
summary of comments from the public hearing will be submitted to the Community Development
Division within 30 days of the date of the public hearing.
Page 2 of 14
K. CONTRACTOR shall provide timely notice to "neighborhood" residents prior to
increasing the number of units in the area by more than two single family or four multifamily units,
or prior to renovating more than five units. Notice will include contact information or identification
of opportunities for residents to comment on the proposed development. CITY staff will determine
"neighborhood" boundaries.
3.
CITY'S & CONTRACTOR'S OBLIGATIONS
A. CITY shall provide funds in the amount of $140,000 or less in project funds to the
CONTRACTOR for specific housing projects and programs as described the Work Statement,
Attachment "A".
B. CONTRACTOR may request a maximum of $35,000 in 2004-'05 funds per unit.
Additional project costs may be paid with program proceeds and funds from other sources.
C. CONTRACTOR agrees to hold and save harmless the CITY, its officers and
employees from any and all loss, cost, or damage of every kind [including, property damage, bodily
injury or death], nature or description arising under this Agreement.
D. This Agreement and the payments made hereunder are contingent upon receipt of
U.S. Department of Housing and Urban Development funds pursuant to the HOME Investment
Partnership Program, and shall terminate immediately, not withstanding the provisions of Article
XIX hereof, should such funds be discontinued for any reason.
E. The CONTRACTOR may not request disbursement of funds until they are needed
for payment of eligible costs. The amount of each request by the CONTRACTOR shall be limited
to the amount needed in accordance with 24 CFR 92.504 (c)(3)(viii) and shall involve the activities
set forth in the "Contract Activity Schedule" attached as Attachment C.
F. CONTRACTOR may not request reimbursement for expenditures that occurred
more than ninety (90) days prior to the submission of the reimbursement request to the Community
Development Division.
G. Upon dissolution of the CONTRACT any remaining funds or assets derived from the
expenditure of the CITY's funds, hereinafter sometimes described as the CITY's HOME funds,
proceeds or HOME-funded projects, must be immediately returned to the CITY.
4.
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS
A. The CITY and CONTRACTOR agree to perform their duties arising pursuant to the
Agreement in compliance with the U.S. Department of Housing and Urban Development HOME
Investment Partnership Program regulations at 24 CFR 92.
B. CONTRACTOR shall comply with all prescribed procedures regarding
Page 3 of 14
nondiscrimination and equal opportunity, affirmative marketing, displacement and relocation, labor
relations, lead-based paint and conflict of interest provisions described in 24 CFR 92 subpart H and
24 CFR 92.504.
C. CONTRACTOR agrees to ensure that all HOME-assisted housing or housing
identified as match for the HOME program meets all affordability requirements identified in 24 CFR
92.252 or 92.254. CONTRACTOR further agrees to develop a deed of trust for use with all HOME-
assisted units that incorporates these requirements, including remedies for breach of the agreement
provisions. CONTRACTOR will provide the CITY with a copy of the deed of trust with provisions
described above for approval before the sale of any HOME-assisted units.
D. CONTRACTOR agrees that as a certified Community Housing Development
Corporation, they will comply with 24 CFR 92.300 and 92.301.
E. If it is determined that the use of the funding provided by the CITY does not meet the
requirements of the U.S. Department of Housing and Urban Development HOME Investment
Partnership Program, the CONTRACTOR shall reimburse the CITY for the costs determined to be
disallowed under the U.S. Department of Housing and Urban Development HOME Investment
Partnership Program regulations.
F. CONTRACTOR agrees that all housing assisted under this agreement will meet the
property standards requirements in 24 CFR 92.251 and lead-based paint standards in 24 CFR
92.355.
G. CONTRACTOR agrees to comply with displacement and relocation requirements at
24 CFR 92.504 and 92.353.
H. CONTRACTOR agrees to comply with procurement requirements at 24 CFR 84.44;
84.45; 84.46; 84.47 and 84.48.
1. CONTRACTOR agrees to comply with all applicable Federal laws, laws of the State
of Texas and ordinances of the City of Denton.
5.
REPRESENTATIONS
A. The CITY is providing funding to the CONTRACTOR in order to promote
development of affordable housing. Use of funds for programming will meet this stated goal.
B. The CITY is the only agent authorized to designate changes to the Program Budget
or to approve specific projects and programs authorized pursuant to the non-administration portion
of the Program Budget.
C. CONTRACTOR assures and guarantees that it possesses the legal authority,
pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter
into this Agreement.
Page 4 of 14
D. The person or persons signing and executing this Agreement on behalf of
CONTRACTOR, do hereby warrant and guarantee that he, she, or they have been fully authorized
by CONTRACTOR to execute this Agreement on behalf of CONTRACTOR and to validly and
legally bind CONTRACTOR to all terms, performances and provisions herein set forth.
E. CITY shall have the right, at its option, to either temporarily suspend or permanently
terminate this Agreement if there is a dispute as to the legal authority of either CONTRACTOR or
the person signing the Agreement to enter into this Agreement. CONTRACTOR is liable to CITY
for any money it has received from CITY for performance of the provisions of this Agreement if
CITY has suspended or terminated this Agreement for the reasons enumerated in this Section.
F. CONTRACTOR agrees that the funds and resources provided CONTRACTOR
under the terms of this Agreement will in no way be substituted for funds and resources from other
sources, nor in any way serve to reduce the resources, services, or other benefits which would have
been available to, or provided through, CONTRACTOR had this Agreement not been executed.
6.
PROGRAM INCOME
A. HOME program income is defined as all fees and interest payments on HOME-
assisted units/projects and any interest income on deposited HOME funds or program proceeds
collected by the CONTRACTOR. Program income may be retained by the CONTRACTOR to be
used for HOME-eligible activities included in the Work Statement included herein as Attachment
"A". Provided, however that any interest on deposited HOME funds must be remitted to the CITY
on a quarterly basis.
B. HOME program proceeds are defined as income from the sale of HOME-assisted
housing. Proceeds may be retained by the CONTRACTOR for use on other HOME-eligible
activities included in the Work Statement included here as Attachment "A".
C. Any income generated from the use of HOME funds, proceeds, or any income
generated through subsequent use of these funds shall continue to be used by the CONTRACTOR
for HOME-eligible activities included in the Work Statement in the City of Denton, Use of the
funds on projects or programs other than those identified in this Agreement must be approved in
writing by the CITY. Any income retained and used by the CONTRACTOR must be available to
the CITY as a matching contribution for the HOME program. Upon request, CONTRACTOR will
approve appropriate certifications stating that funding is available as a HOME program match to the
CITY.
7.
MAINTENANCE OF RECORDS
A. CONTRACTOR agrees to maintain records that will provide accurate, current,
separate, and complete disclosure of the status of the funds received pursuant to this Agreement and
pursuant to any other applicable Federal and/or State regulations establishing standards for financial
management. CONTRACTOR's record system shall contain sufficient documentation to provide
detailed support and justification for each expenditure. Nothing in this Section shall be construed to
relieve CONTRACTOR of fiscal accountability and liability under any other provision of this
Page 5 of 14
Agreement or any applicable law. CONTRACTOR shall include the substance of this provision in
all subcontracts.
B. CONTRACTOR agrees to retain all books, records, documents, reports, and written
accounting policies and procedures pertaining to the operation of programs and expenditures of
funds pursuant to this Agreement for the period of time and under the conditions specified by CITY.
C. CONTRACTOR shall submit a copy of each annual independent audit or any
organizational audit conducted, to the Community Development Division within 30 days of the date
of completion.
D. Nothing in the above subsections shall be construed to relieve CONTRACTOR of
responsibility for retaining accurate and current records, which clearly reflect the level and benefit of
services, provided pursuant to this Agreement.
E. At any reasonable time and as often as CITY may deem necessary, the
CONTRACTOR shall make available to CITY, or any of its authorized representatives, all of its
records and shall permit CITY, or any of its authorized representatives to audit, examine, make
excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials,
payrolls, records of personnel, conditions or employment and all other data relating to the program
requested by said representatives.
F. The CONTRACTOR shall give the City of Denton, the U.S. Department of Housing
and Urban Development, or any of their duly authorized representatives, access to and the right to
examine all books, accounts, records, reports, files and other papers belonging to or in use by the
CONTRACTOR pertaining to this Agreement. Such rights to access shall continue as long as the
CONTRACTOR is required to retain the records.
S.
REPORTS AND INFORMATION
A. CONTRACTOR shall provide quarterly financial and beneficiary reports that shall
contain such records, data and information as CITY may request and deem pertinent to matters
covered by this Agreement. Reports shall be due to the Community Development Division within
45 days of the end of the quarter. CONTRACTOR shall provide any additional information as
requested by the CITY within 10 days.
B. CONTRACTOR shall submit copies of all public meeting advertisements and
residents notifications setting forth the time and place thereof, including without limitation board of
director meetings, to the Community Development Division office at least 72 hours prior to the
meeting in accordance with Section 16 of this Agreement.
9.
INSURANCE
A. CONTRACTOR shall observe sound business practices with respect to providing
such bonding and insurance as would provide adequate coverage for services offered under this
Page 6 of 14
Agreement.
B. The premises on and in which the activities described in Exhibit A are conducted,
and the employees conducting these activities, shall be covered by premise liability insurance, com-
monly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon
request of CONTRACTOR, CITY may, at its sole discretion, approve alternate insurance coverage
arrangements.
C. CONTRACTOR will comply with applicable workers' compensation statutes and
will obtain employers' liability coverage where available and other appropriate liability coverage for
program participants, if applicable.
D. CONTRACTOR will maintain adequate and continuous liability insurance on all
vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who
are required to drive a vehicle in the normal scope and course of their employment must possess a
valid Texas driver's license and automobile liability insurance. Evidence of the employee's current
possession of a valid license and insurance must be maintained on a current basis in
CONTRACTOR's files.
E. Actual losses not covered by insurance as required by this Section are not allowable
costs under this Agreement, and remain the sole responsibility of CONTRACTOR.
F. The policy or policies of insurance shall contain a clause which requires that CITY
and CONTRACTOR be notified in writing of any cancellation or change in the policy at least thirty
(30) days prior to such change or cancellation.
10.
EQUAL OPPORTUNITY
During the performance of this Agreement, the CONTRACTOR is subject to Executive
Order 11246, as amended, and, therefore, agrees to the following:
(1) The CONTRACTOR will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin, or familial status.
The CONTRACTOR will take affirmative action to ensure that applicants who are
employed are treated during employment without regard to their race, color, religion,
sex, national origin, or familial status, concerning such employment, upgrading,
demotion, or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or their apprenticeship. The CONTRACTOR agrees to post in
conspicuous places, available to both employees and applicants for employment,
notices to be provided by the CITY setting forth provisions of this nondiscrimination
clause.
(2) The CONTRACTOR, in all solicitations or advertisements for employees placed by
or on behalf of the CONTRACTOR, shall state that all qualified applicants will
receive consideration for employment without regard to race, color, religion, sex,
national origin, or familial status.
Page 7 of 14
11.
CONFLICT OF INTEREST
A. CONTRACTOR agrees to comply with the federal regulations at 24 CFR 92.356.
B. CONTRACTOR covenants that neither it nor any member of its governing body
presently has any interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed under this Agreement. CONTRACTOR further
covenants that in the performance of this Agreement, no person having such interest shall be
employed or appointed as a member of its governing body.
C. CONTRACTOR further covenants that no member of its governing body or its staff,
subcontractors or employees shall possess any interest in or use this position for a purpose that is or
gives the appearance of being motivated by desire for private gain for themselves, or others,
particularly those with which they have family, business, or other ties.
D. No officer, member, or employee of CITY and no member of its governing body
who exercises any function or responsibilities in the review or approval of the undertaking or
carrying out of this Agreement shall participate in any decision relating to the Agreement which
affects his personal interest or the interest in any corporation, partnership, or association in which he
has direct or indirect interest.
12.
POLITICAL OR SECTARIAN ACTIVITY
A. None of the performance rendered hereunder shall involve any political activity
(including, but not limited to, any activity to further the election or defeat of any candidate for public
office) or any activity undertaken to influence the passage, defeat or final content of legislation.
B. None of the performance rendered hereunder shall involve or benefit in any, manner
any sectarian or religious activity.
13.
WARRANTIES
CONTRACTOR represents and warrants that:
A. All information, reports and data heretofore or hereafter requested by CITY and
furnished to CITY, are complete and accurate as of the date shown on the information, data, or
report, and, since that date, have not undergone any significant change without written notice to
CITY.
B. Any supporting financial statements heretofore requested by CITY and furnished to
CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the
Page 8 of 14
date shown on said report, and the results of the operation for the period covered by the report, and
that since said date, there has been no material change, adverse or otherwise, in the financial
condition of CONTRACTOR.
C. No litigation or legal proceedings are presently pending or threatened against
CONTRACTOR.
D. None of the provisions herein contravenes or is in conflict with the authority under
which CONTRACTOR is doing business or with the provisions of any existing indenture or
agreement of CONTRACTOR.
E. CONTRACTOR has the power to enter into this Agreement and accept payments
hereunder, and has taken all necessary action to authorize such acceptance under the terms and
conditions of this Agreement.
F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any
character, except for current taxes not delinquent, except as shown in the financial statements
furnished by CONTRACTOR to CITY.
G. Each of these representations and warranties shall be continuing and shall be deemed
to have been repeated by the submission of each request for payment.
14.
COVENANTS
A. During the period of time that payment may be made hereunder and so long as any
payments remain unliquidated, CONTRACTOR shall not, without the prior written consent of the
Community Development Administrator or her authorized representative:
(1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of
the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any
pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets
of CONTRACTOR which are allocated to the performance of this Agreement and with
respect to which CITY has ownership hereunder.
(2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables,
notes or claims for money due or to become due.
(3) Sell, convey, or lease all or substantial part of its assets.
(4) Make any advance or loan to, or incur any liability for any other firm, person,
entity or corporation as guarantor, surety, or accommodation endorser.
(5) Sell, donate, loan or transfer any equipment or item of personal property
purchased with funds paid to CONTRACTOR by CITY, unless CITY
authorizes such transfer.
Page 9 of 14
B. CONTRACTOR agrees, upon written request by CITY, to require its employees to
attend training sessions sponsored by the Community Development Division.
15.
MONITORING AND EVALUATION
A. CITY shall perform on-site monitoring of CONTRACTOR's performance under this
Agreement.
B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation
activities to ensure adherence by CONTRACTOR to the Work Statement, and Program Goals and
Objectives, which are attached hereto as Attachment A, as well as other provisions of this
Agreement.
C. CONTRACTOR agrees to cooperate fully with CITY in the development,
implementation and maintenance of record-keeping systems and to provide data determined by
CITY to be necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities.
D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay
CITY in such monitoring and to designate one of its staff members to coordinate the monitoring
process as requested by CITY staff.
E. CITY shall provide a written evaluation of contract performance to the
CONTRACTOR within 30 days of the monitoring. Written notification will be provided to staff and
the board of directors.
F. Within 60 days of notification by the CITY, the CONTRACTOR shall provide
complete responses include a statement acknowledging any corrective action required to be taken
due to City of Denton monitoring findings and concerns.
G. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by
any of CONTRACTOR's funding or regulatory bodies to CITY within fifteen (15) working days of
receipt by CONTRACTOR.
16.
DIRECTORS' MEETINGS
A. CONTRACTOR shall ensure that all board of directors and membership meetings
are publicly advertised and an agenda posted with the City Secretary and the Community
Development Division at least 72 hours prior to the meeting. Such notice shall include an agenda
and a brief description of the matters to be discussed.
B. CONTRACTOR understands and agrees that CITY representatives shall be afforded
access to all of the Board of Directors' meetings.
C. Minutes of all meetings of CONTRACTOR's governing body shall be available to
Page 10 of 14
CITY within ten (10) working days of approval.
1'7.
NEPOTISM
CONTRACTOR shall not employ in any paid capacity any person who is a member of the
immediate family of any person who is currently employed by CONTRACTOR, or is a member of
CONTRACTOR's governing board. The terra "member of immediate family" includes: wife,
husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece,
step-parent, step-child, half-brother and half-sister.
18.
SUSPENSION OF FUNDING
A. Upon determination by CITY of CONTRACTOWs failure to timely and properly
perform each of the requirements, time conditions and duties provided herein, CITY, without
limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days
written notice to CONTRACTOR, withhold further payments to CONTRACTOR. Such notice may
be given by mail to the Executive Officer and the Board of Directors of CONTRACTOR. The
notice shall set forth the default or failure alleged„ and the action required for cure.
B. The period of such' suspension shall be of such duration as is appropriate to
accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of
the suspension period, if CITY determines the default or deficiency has been satisfied,
CONTRACTOR may be restored to full compliance status and paid all eligible funds withheld or
impounded during the suspension period. If, however, CITY determines that CONTRACTOR has
not come into compliance, this Agreement may be terminated under Section 19 of this Agreement.
19.
TERMINATION
A. The CITY shall have the right to terminate this Agreement, in whole or in part, at
any time whenever the CITY determines that the CONTRACTOR has failed to comply with any
term of this Agreement. The CITY shall notify the CONTRACTOR in writing thirty (30) days prior
to the date of termination, the effective date of such termination, and in the case of partial
termination, the portion of the Agreement to be terminated. Property shall be subject to disposition.
B. The CITY shall have the right to terminate this Agreement for convenience, in whole
or in part by written notification to the CONTRACTOR which shall include the reason for such
termination, the effective date and the portion to be terminated.
C. If, in the case of a partial termination, it is the determination of CITY that the
remaining portion of the award is not sufficient to accomplish the project as described in the Work
Page 11 of 14
Statement, CITY may require that the entire grant be terminated.
20.
INDEMNIFICATION
A. It is expressly understood and agreed by both parties hereto that CITY is
contracting with CONTRACTOR as an independent CONTRACTOR and that as such,
CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from
all liability of any nature or kind, including costs and expenses for, or on account of, any
claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in
whole or in part from the performance or omission of any employee, agent or representative of
CONTRACTOR
B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold
harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of
action, demands, damages, losses, attorneys fees, expenses, and liability arising out of the use
of these contracted funds and program administration and implementation except to the
extent caused by the willful act or omission of CITY, its agents, employees, or contractors.
21.
NOTICE
For purposes of this Agreement, all official communications and notices among the parties
shall be deemed made as of the date mailed if sent postage paid to the parties and address set for
below:
TO CITY: TO CONTRACTOR:
City Manager Director
City of Denton Denton Affordable Housing Corporation
215 E. McKinney St. 604 N Bell Avenue
Denton, Texas 76201 Denton, Texas 76209
22.
VENUE
This Agreement shall be interpreted in accordance with the laws of the State of Texas and
venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction
sitting in Denton County, Texas.
23.
CONSOLIDATION AGREEMENT
This Agreement consolidates and replaces all previous Agreements between CITY and
CONTRACTOR and all Amendments to those Agreements except where otherwise expressed
Page 12 of 14
herein. Provided, however, that CONTRACTOR shall be required to maintain all affordability
requirements on all HOME funded projects, shall fully perform all continuing obligations required
under these previous Agreements and applicable state, federal and local laws and shall continue to
use all HOME proceeds from any CITY-funded projects since CONTRACTOR's inception for
HOME-eligible activities as described in this Agreement and as may be required by law.
IN )VITNESS OF WHICH this Agreement has been executed on this the $ day of
2005.
CITY OF DENTON
BY:
MICHAEL A. CONDUFF, CITY ~5NAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
DENTON AFFORDABLE HOUSING
CORPORATION
B
ID OARDPREST
ATTEST:
Page 13 of 14
SECRETARY
Page 14 of 14
ATTACHMENT "A"
WORK STATEMENT AND PERFORMANCE OUTCOME GOALS
Denton Affordable Housing Corporation
The Denton Affordable Housing Corporation ("DAHC") was developed to increase the supply of
affordable housing in the Denton area. The organization is designed to carry out the following
activities but is not limited to these: administration, rehabilitation, acquisition, new construction,
tenant-based rental assistance and public service programs.
Expenditure of City funds for housing projects is limited to projects within the city limits of Denton.
DAHC's projects and programs will primarily benefit low and moderate-income households. Low
and moderate income is defined as households below 80% of the area median income.
The Affordable Homeownership Opportunity Program provides for acquisition, renovation and
sale of single-family units. HOME Program 2004-2005 funding in the amount of $140,000 will be
used in the Program. Proceeds from the sale of completed projects will be placed in the AHOP
program fund for future projects. Each project must include a minimum of $1,000 and no more than
$35,000 in 2004-'05 HOME funding. No more than 10% of the HOME portion of the project sales
proceeds may be used for project delivery costs for the program. The HOME portion of the
proceeds is based on the percentage of HOME funds included in the project. A minimum of four 0.)
ytitc will he .cold to low and maderatp-incnmp hi2juphu)2am-
The Affordable Housing Construction Program provides funding to construct single-family units.
Properties suitable for single-family housing will be acquired through purchase or donation. Units
will be constructed in such a way as to make them affordable to low and moderate-income
households. Units will be sold to HOME-eligible households. Not more than 10% of the total
funding amount may be used to assist buyers with down payment and closing costs. A minimum of
one (l unit will hP rnnstructed and sold to low and moderate income. hnmehu yerr.
ATTACHMENT "B"
PROGRAM BUDGET
Affordable Homeownership Opportunity Program $140,000
Affordable Housing Construction Program *no 2004-2005 funding
* Both programs will also use program proceeds for projects.
ATTACHMENT "C"
SCHEDULE OF CONTRACT ACTIVITIES
Activi Jan - Mar Aril - June Jul -Set Oct - Dec Total
Affordable Housing Opportunity Program - 0 $35,000 $70,000 $35,000 $140,000
Acquisition, Rehabilitation, Homebuyer
Asst.
New Construction Program Use of Program Proceeds to Construct Additional Unit(s)
Barbara Ross - Scan.doc Page 1
0AHC * Denton Affordable Housing Corporatian
Jane Surda Provo 804 N, Sell ,avenue [94q] 46 a, 7046
xeeucwn !hector [Dorton, Texes 75209 (94014-84-7032 Fax
d°rrconCl~.,hCLaOoL.c orn
den[onat rvrdableMousirg,arg
May 25, 2005
Btubam ROSS, Admirishxtor
City,of Denton Community DevMopment Wept.
lilt South Locust, Suite 500
Denton, TX 76201
Sent via F=
Hard copy to fbltow
Re: Request for revision of use of CMD proceeds
dear Barbara:
As you know, DAHC received a $755,900 Fund Reservation fmm the U-S. Department of
housing and Urban Development (H U 17) in Novembar 2003, to build ten Limits of atfordabte and
accessible housing for people with disabilities. The ten units (consisting of fiv? duplexes) ere to
he built on a 2-acm site at the interstx Bunt of Mcvzldngbirtl Lute mid Paisley Street in Denton.
As required by HUD's financingprmess, DAHC submitted an Application for Firm Commit-
ment in Uecernber of 2064, along with architectural drawingg and gpecifrcations and final
constntction cost figures. A third-party independent coat analyst reviewed and approved the
com iruction budget. Nevertheless, when we submitted the Firm Commitment application, the
total project cast was slightly over $1,251,000, approximately 8494,000 over the $756,404
reserved for this project by HUD.
Subsequently, IIUD advised us that they would consider committing approximately $243,700
additiwwJ "amendment fords" to the prujeet (bringing their total commitment * SI million) if
DAHC cculddemonstrate that they have exhausted all other local f-.md!ng opportunities to make
up the $251,000 remaining shortfall in the budget. 'Ale have taken several steps to raise the
$25 1,000 additioTW capital Or ztils project-
Partnering with Northstw Bank. at application was submittzd to the Federal name Loan Bank of
Dallas, through their Affordable Housing Program. They approved the application and awarded
$ t00,M for this project, helping to reduce Ilse overage. Aa application fur $10,000 'A9l bo
submitted to you for grant funds to cover a portion of the water and waste water impart fees.
Althougb we knew tbtm has been a moratorium on the disbtbution of Denton County Housing
Finance Corporation funds for local projects, I did svbrcit a request for funds from them to cover
the remaining shortfall in funds for this desperately nreded project for very-low-income people
with cisabilities_ Unfortunately, at theirmeeting held on May 23rd-. they regretfully denied my
Barbara Ross - Scan.doc Page 2
request, citing the policy they adopted several years ago to suspend all its until their fiord
glance exceeds $I million.
DAHC also partnered with WeIIs Fargo Batik and submitted an application for $80,000 to the
FMeral Home Loan Bank of D(-,s Moines. However, notification of awards wil I not be made
until late in June.
At this time, we respectfully request tha: you consider our request to revise the allowa:Ae use of
CHOO proceed funds generated from our 210U4 award of tH]W hinds. As you know, paragraph
6.13 of our current contract allows for DAMC "to retain the CHDO proceeds &=rated hem the
sale of HOME-assisted housing units for use on other HOME-eligible activities included is thu
Work Statement of the contract." I herein request that we be allowed to apply 2004 CA00
proceeds, in an a&-noLnt rot to exceed $125,000, to the IQ rental units in the Nevada Court
17evelnpmeni. This will eanhle iis to notify HUD that we have secured sufFicient funds to"close
the gap"_ MUD can ten proceed with their approval and release of their additional umendrmnt
fi nds. If DAHC is successful in obtaining the additional $80,000 from FHL13 DesMoines, the
amount oFCf-IDO precccds for which we are requestiecg a chwiSc in use can be roducud by that
amount.
L-`xcavation and infraytructura installation has begun on the site and we hope to begin Ue
residential construction by raid-summer. Though we have not cven begun advcrt61ngthe
availability of these units, we have nearly 4U qualibing households on our waiting list for these
extremely affordable homes which carry rent suE sid ue i from BUD, The sooner we can secure
itae funds and get these units underway, the soarer we care assist this very needy popuiatioR.
A current pruject budget is attached for your review. Let the know if 1 can provide you with
additional infomnation aboutthe project and would be happy to attend the Advisory Committee,
mecling to awwrr any gnscstions thcy may have.
5 ineerely yours,
3anc Burda I3r❑vc
Exc4utivi~ Dixulor
Encimures
Barbara Ross - Scan.doc Page 3
Revised DAHC Housing It
Development Budget
(10 accessible rental milts)
Rod get Item SURO1:A1 Total
Land utsIvbn* 16~,Ow
Dirt wnrl[ and itp r ion ID0 DUD
00
Consrucdon of 10 mxess a Wnts L92
Coanwtues ignaal uruacwksid95 i s0
Canrmccoesowrheeld ;4 1 589 -
Cmbitgoes ,--d 419,767
Tidal cumbuctim uusl 69S.SU6
14,500
Bond Pamium
BkAdie mots and tvined Pies 24.41{}
cil Qrasoun r id DAHC-.
W&W lm act fan 31p
4 _
wwwaw iMPM± 6es 7,183
D
1}" clevcl i:uuc fees 2,91
PaMLm in lira of ark land dedic4ioa, 1
Toulai buiU!n fees DA-RC 42,S6S
Atth;t, dgi ke 27.238
Architect's Ponar+crine ei 11.000
Yredeve 1 ccs15 id OikHC -
3 soo
sLL-VOX
Soils T% t B_ T_ 2 400
Cast ana sir, 2.540
2eM 1 S 60o-
[1,20D
Phase I Enviroamembil Review ! 600
4D
qmEnIzatimal 4,D
TotaI M&YU10PROM oasts to T"C 30.290
i4ii a ¢in 2M
Lc : +004
1ltsurarlce 1~
Chaa&a orders a raved FEUD 13,1311
Title and rcardfw tbfa d S0G
Cmt oei fikation to HUD 3,0015
Total rta" tcoet` 1,54,951
4 Vnl4atipn of'I nd haecdon p-. jecled irstdlttlonvFwl. ]OFMuVe urelmf"vetrxmU
Sources of Funds - T Amount States
KUn Swtiors W Funcs - 756 90O Approved
lily Soc ive B11 *Amatdmcok Funds" 2`40,600 A ed wf wmdiduns
Federal Home Una So* of 1 s1w 100 Approved
g!y oFl]entaa ImpaCt Fee Grattl LiMm 14 DUO To be rapeAtd
Denton Husain Fcmnm C 1 506 04=ied
Federal H meLow Sank of DesMOkes SO x7Ut} d
Ci of U4ntao vet led FIGME Pia*" 125,000 R I:t' W
4* Amendment co 2004 Contrast rrgardaa um of Program P.orasda
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Airport and Transit Operations
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas terminating that certain airport
lease dated September 7, 2004, by and between the City of Denton, Texas and Denton Airport
Hangars, LLC,; authorizing the City Attorney or his designee to take appropriate action, if
necessary, to effectuate the termination; and providing for an effective date. The Airport
Advisory Board unanimously recommends termination of this agreement, 7-0.
BACKGROUND
On September 7, 2004 Denton Airport Hangars, LLC (DAH) and the City of Denton entered into
a 30-year commercial airport operator lease agreement for the development of approximately
70,000 square feet of commercial hangar storage. Terms of the agreement required DAH to
initiate rental payments on March 1, 2005 and begin construction on the proposed commercial
facility no later than June 1, 2005. Pursuant to the lease agreement, Airport Staff has provided
DAH, the opportunity, through requisite written notification, to cure the two items to avoid
default. Mr. Alan Stricklin, DAH, LLC, has not responded to either piece of correspondence nor
to other means of communication that would indicate DAH's intent to cure the default.
The proposed ordinance will officially terminate the lease agreement between DAH and the City
of Denton pursuant to terms and conditions contained in the lease agreement. Airport staff has
received numerous inquires on the availability of the identified property and will market the
property upon termination of the DAH lease agreement.
PRIOR ACTION/REVIEW
The Airport Advisory Board has been briefed and unanimously recommends the proposed
ordinance. Staff recommends approval of the proposed ordinance.
FISCAL INFORMATION
The DAH lease agreement required an annual land lease payment of $37,400.04.
EXHIBITS
Ordinance
Exhibit A
Exhibit B
Original Lease Agreement
Respectfully submitted:
Mark Nelson, Director
Airport and Transit Operations
S:\Our Documentsl0rdinances1051DAH Termination 2005.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS TERMINATING THAT CERTAIN
AIRPORT LEASE DATED SEPTEMBER 7, 2004, BY AND BETWEEN THE CITY OF
DENTON, TEXAS AND DENTON AIRPORT HANGARS, LLC.; AUTHORIZING THE
CITY ATTORNEY OR HIS DESIGNEE TO TAKE APPROPRIATE LEGAL ACTION, IF
NECESSARY, TO EFFECTUATE THE TERMINATION; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Denton, Texas (the "City") and Denton Airport Hangars, LLC.
("DAH") have entered into that certain Airport Lease Agreement dated September 7, 2004 (the
"Lease Agreement") whereby the City leased to DAH for aviation purposes an approximate
220,000 square feet of land legally described in Exhibit "B" which is more particularly described
in the Lease Agreement which is incorporated herein by reference (the "Leased Property"); and
WHEREAS, pursuant to the Lease Agreement DAH has the duty and obligation to pay
rental in the amount of 53,116.67 per month for the Leased Property beginning on March 1, 2005
(the "Rent"); and
WHEREAS, DAH's obligation to pay the Rent is a material obligation of DAH under the
Lease Agreement; and
WHEREAS, on or about May 4, 2005 the City gave DAH notice that an unreasonable
period of time had elapsed without Rent being paid for the Leased Property, a copy of which is
attached hereto as Exhibit "A" and incorporated herein by reference (the "May 4, 2005 Notice");
and
WHEREAS, despite the May 4, 2005 Notice DAH failed or refused to pay Rent for the
Property; and
WHEREAS, the May 4, 2005 Notice informs DAH that if the Rent is not paid in full
within 30 days of the Notice the City will terminate the Lease Agreement; and
WHEREAS, to date, which is over 30 days since the May 4, 2005 Notice was received by
DAH, DAH has failed to pay any of the Rent for the Leased Property; NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. The City Council hereby terminates the Lease Agreement due to
nonperformance of a material obligation of DAH under the Lease Agreement. Should legal
action be required to effectuate the termination of the Lease Agreement and/or if it should
become necessary to file legal action to remove DAH from the Leased Property or to determine
the rights and obligations of the parties under the Lease Agreement, the City Attorney, or his
designee is hereby authorized to file such legal actions or lawsuits on behalf of the City.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 12005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
Page 2
Exhibit A y
K. I
City
of
DENJ
DENTON MUNICIPAL AIRPORT, TERMINAL BUILDING, 500o AIRPORT RD.
DENTON, TEXAS 78207 (940) 349-7736 (940) 349.7744 - Fax (940) 349-7289
May 4, 2005
Alan ,Stricklin
Denton Airport Hangars, Inc.
3932 Bexhill Drive
Plano, TX 75025
I
Dear Mr. Stricklin:
Airport management has made several attempts to communicate with your regarding your
commercial lease agreement with the City of Denton. Airport management has sent you a letter
dated February 7, 2005 identifying our concerns regarding your ability to meet the requiremenU
of your lease agreement. This letter asked that you provide a project schedule to airport
management by February 28, 2005. To date, we have not received the requested project
schedule.
During a March 11, 2005. phone conversation, you indicated Denton Airport Hangars, Inc.
(DAH) would provide a written request to assign the DAH lease to a third party. Your office has
not returned subsequent phone calls by Airport Management on this issue. Furthermore, our
records indicate that DAH has not submitted payment in the amount of $3,116.67 per month
starting March 1, 2005 as required by Section IV.A.2 of your lease agreement. Our records
indicate DAH owes $6,233.34 to the Denton Airport for March and April 2005 rent.
With this understanding, you are in default of your lease agreement per the above-mentioned
section and are hereby given 30 days notice to cure. Failure to cure will result in airport
management formally declaring you in default and will require us to seek cancellation of your
lease agreement. Should you have any questions, please contact me at 940.349.7702 or our
Assistant City Attorney Herb Prouty at 940.349.8333.
Sincerely,
Mark Nelson, CM
Director, Airport and Transportation Operations
CC: Denton Airport Advisory Board _
Herb Prouty, Assistant City Attorney.
.
"Dedicated to Quality Service"
Yuwzv Cdfyofdentonxom
fN.
i
EXHIBIT B
.Description
5.650 Acres
All that certoin lot, tract or parcel of land situated in the WILLIAM NEIL Survey, Abstroc', Murr,her 970 in the (:ftY
Jentan. Denton County, Texas and being part of moo' Bloc 1 of Southeast Airport Addition, or; addition to the
City of Denton, Denton County, Texas according to the plot thereof recorded ;n Cabinet G Page 295 of thy: Plat
Records of Denton County, Texas; the subject tract being more porticulcrl} described as follows:
COMMENCING at the Northwest Corner of said Addition at o found concrete mcinumenf;
THENCE South 07 Degrees 32 Minutes 54 Seconds West a d;s'tonce of 915.70 feet to a point for corner;
THENCE South 89 Degrees 39 Minutes 34 Seconds East ❑ distance of 226.21 feet to a 1/2-inch iron rod found;
THENCE South 00 Degrees 15 Minutes 26 Seconds West a distance of 235.10 feet to a 1/2-inch capped iron roc
found;
THENCE South 89 ...Degrees . 4 . _ . _ '
4 Ivtinutes 34 Seconds East a dis±once of 531.86 feet to a 112-inch capped iron tact
set;
THENCE South Oi Degrees 21 Minutes 19 Seconds West a distance of 131.10 feet to a 1/2-inch capped iron rod
set;
THENCE North 26 Degrees 22 Minutes 48 Seconds West a distance of 1426.17 feet to a 1/2" copped iron rod set
for the POINT OF BEGINNINGof the herein described tract;
;
THENCE South 01 Degrees 21 Minutes 19 Seconds West a distance of 31.46 feet to a 112" copped iron rod set
for corner; `
THENCE South 89 Degrees 40 Minutes 28 Seconds East o distance of 94.13 feet to a 1/2" capped iron rod set
for corner;
THENCE North 00 Degrees 26' Minutes 27 Seconds East a distance..of 5.85 feet to a 1/2" capped iron rod set for
corner;
THENCE North 89 Degrees 21 Minutes 23 Seconds East a distance of 22.61 feet to a 1/2" capped iron rod sel Ocr
corner;
THENCE North 59 Degrees 21 Minutes 23 Seconds East a distance of 24.57 feet to o 1/2" capped iron rod set for
the northeast corner of the herein described tract and being West 30.00 feet from the centerline of SKYLINE DRIVE;
THENCE South 00 Degrees 32 Minutes 15 Seconds West parolfel with the centerline of SKYLINE DRIVE a distance of
227.311 feet to a 1/2" copped iron rod set for the southeast corner of the herein described tract and being North
25.00 feet from the centerline of o grovel surface rood;
THENCE North 89 Degrees 57 ,Minutes 30 Seconds West parallel with the said centerline o distance of :21.47 ,refit
to a 1/2" copped iron rod set for corner at the start of o cvrve to the left having a radius of 135.:0 feet;
THENCE with said curve to the left an arc length of 110.76 feet and said curve to the left a chord bearing of
North 67 Degrees 09 Minutes 43 Seconds West, a distance of 107.70 feet to a i/2" capped iron rod sat for
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SA0ur Documents\0rdinances1041Ai1,,-,)Hangars LLC Qrdinance.doc
ORDINANCE NO.~D
AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON AIRPORT
HANGARS, LLC.; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute an airport
lease agreement for commercial operator between the City of Denton and Denton Airport
Hangars, L.L.C., in substantially the form of the Airport Lease Agreement which is attached to
and made a part of this ordinance for all purposes.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 2001.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
B IA)~ ibA 4
APP VED AS TO LEGAL FO
HERBERT L. PR , CITY ORNEY
BY:
U
AIRPORT LEASE AGREEMENT
COMMERCIAL OPERATOR
This Lease Agreement is made and executed to be effective this Seventh day of
September, 2004 (the "Effective Date") at Denton, Texas, by and between the City of
Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", and Denton
Airport Hangars, LLC, hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport
(the "Airport") in the City of Denton, County of Denton, State of Texas; and
WHEREAS, Lessee desires to lease certain premises at the Airport and construct and
maintain an aircraft hangar and related aviation facilities thereon;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. CSC}NDMONS OF LEASE. AGRF.F.MF.NT
NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER
CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS
SECTION SMALL BE BINDING.
A. PRINCIPLES OF OPERATIONS. The right to conduct aeronautical and related
activities for finishing services to the public is granted to Lessee subject to Lessee
agreeing:
1. To furnish said services on a fair, equal and not unjustly discriminatory basis
to all users thereof; and
2. To charge fair, reasonable and not unjustly discriminatory prices for each unit
or service; provided, that Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price reductions
to volume purchasers.
B. NON-DISC'RTMTNATION: Lessee, for itself, its personal representatives,
successors, and assigns, as a part of the consideration hereof, does hereby
covenant and agree as a covenant running with the land that:
1. No person on the grounds of race, religion, color, sex, or national origin shall
be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities;
2. In the construction of any improvements on, over, or under such land and the
1
fiunishing of services thereon, no person on the grounds of race, religion,
color, sex, or national origin shall be excluded from participation in, denied
the benefits of, or otherwise be subjected to discrimination;
3. Lessee shall use the premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal -Regulations, Department
of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi-
nation in Federally assisted programs of the Department of Transportation -
Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may
be amended.
C. RTCTHT OF 2iDIVIDITAIR- TO MAINTATN ATRC'RAFT, It is clearly
understood by Lessee that no right or privilege has been granted which would operate to
prevent any person, firm or corporation operating aircraft on the Airport from performing
any services on its own aircraft with its own regular employees (including, but not limited
to, maintenance and repair) that it may choose to perform.
D. NQN EXC;LT TSIVE RIGHT. It is understood and agreed that nothing herein
contained shall be construed to grant or authorize the granting of an exclusive right within
the meaning of Title 49 U.S.C. Appendix § 1349.
E. PUBLIC". ARF,AS.
1. Lessor reserves the right to further develop or improve the landing area of the
Airport as it sees fit, regardless of the desires or views of Lessee, and without
interference or hindrance.
2. Lessor shall be obligated to maintain and keep in good repair the landing area
of the Airport and all publicly owned facilities of the Airport, together with the
right to direct and control all activities of Lessee in this regard.
3. During time of war or national emergency, Lessor shall have the right to lease
the landing area or any part thereof to the United States Government for
military or naval use, and, if such lease is executed, the provisions of this
instrument insofar as they are inconsistent with the provisions of the lease to
the Government, shall be suspended.
4. Lessor reserves the right to take any action it considers necessary to protect the
aerial approaches of the Airport against obstruction, together with the right to
prevent Lessee from erecting, or permitting to be erected, any building or other
structure on or adjacent to the Airport which, in the opinion of Lessor, would
limit the usefulness or safety of the Airport or constitute a hazard to aircraft or
to aircraft navigation.
5. This Lease Agreement shall be subordinate to the provisions of any existing or
future agreement between Lessor and the United States or agency thereof,
3 - AGR DAHP.Doo- Page 2
relative to the operation or maintenance of the Airport.
f. LEASED PREMISES
Lessor, for and in consideration of the covenants and agreements herein contained, to
be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease
from Lessor, for the lease term described in Article III, the following described land situated
in Denton County, Texas:
A. Laud. A tract of land, being approximately 220,000 square feet, or 5.05 acres,
drawn and outlined on Attachment "A", and legally described in Attachment "B," such
attachments being incorporated herein by reference (the "Leased Premises").
Together with the right of ingress and egress to the Leased Premises; and the right in
common with others so authorized of passage upon the Airport property generally, subject
to reasonable regulations by the City of Denton and such rights shall extend to Lessee's
employees, passengers, patrons and invitees. For purposes of this agreement, the term
"Leased Premises" shall mean all property located within the metes and bounds described
and identified within Attachment "B", including leasehold improvements constructed by the
Lessee, but not including certain easements or property owned and/or controlled by the
Lessor.
A legal description of the leased premises is not currently attached as Attachment "B".
Lessee shall deliver to Lessor no later than 30 days after the date of this Agreement a
legal description of the leased premises accurately describing the leased premises that is
acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this
Agreement, in which case it will have no further force and effect. The approved legal
description will be attached to this Agreement as Attachment "B".
B. IMPROVENMNIS PROVI1 ED RY LESSOR: The only improvements
provided by Lessor, except as set forth in Article II.E. "Access to Utilities" below, shall be
as follows: On or before completion of the final foundation/airport apron for the hangar
complex, Lessor shall improve the gravel access road immediately south of the Leased
Premises with an asphalt and/or concrete wear surface. The access road is depicted on
Attachment "A"
For the purpose of this Lease Agreement, the term "Lessor improvements" shall mean
those things on or adjacent to the Leased Premises belonging to, constructed by, or to be
constructed by the Lessor, which enhance or increase, the value or quality of the Leased
Premises. Unless otherwise noted herein, all Lessor improvements are and will remain the
property of Lessor. All Lessor improvements must be described in detail above, or above
referenced and attached to this Agreement in an exhibit approved by Lessor.
C.. IMPROVEMENTS PRC3WDED BY LESSEE On the Leased Premises, Lessee
shall construct a series of hangar/office facilities totaling not less than 70,000 square feet.
Proposed buildings nos. 1 and 2 as depicted in Attachment "A" shall each be no less than
3 - AGR DAHP.Doc- Page 3
10,000 square feet with the remaining buildings being no less than 8,000 square feet.
Lessee shall also construct taxiway access and appropriate culverts or drainage as required
by City ordinances in the utility right of way south and north of the proposed hangar as well
as other improvements as determined necessary by City ordinances (all such hangar/office
facilities and other improvements constructed by Lessee are called the "Lessee's
Improvements'). The Lessee's Improvements shall be commenced no later than 270 days
and completed no later than 720 days after the Effective Date of this Lease Agreement as
evidenced by the issuance of a certificate of occupancy (the "Construction Period").
Commencement of construction shall be when a building permit is issued for Lessee's
Improvements and actual construction work has been done.
Notwithstanding anything contained in this Lease Agreement to the contrary, a
failure to complete the Lessee's Improvements within the Construction Period may, at
the sole option and discretion of the Lessor, result in the immediate termination and
cancellation of this Lease Agreement upon 30 days written notice of cancellation to
Lessee. In such case Lessee's rights under the Lease Agreement will immediately
cease and be forfeited, and all of Lessee's Improvements shall immediately become the
property of Lessor at no cost, expense or other compensation paid by Lessor to
Lessee; and Lessee shall immediately vacate the Leased Premises.
D. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the
Leased Premises, easements for public access on roads and taxiways.
E. ACCESS IQ I ITITJTTF.S- Lessor represents that there are water, sewer and 3-
phase electricity lines within close proximity to the Leased Premises available to "tap-in" by
Lessee, and that the same are sufficient for usual and customary -service on the Leased
Premises.
III. TERM
The term of this Lease Agreement shall be for a period of thirty (30) years, com-
mencing on the 7th day of September, 2004 and continuing through the sixth day of
September of 2034, unless earlier terminated under the provisions of the Lease Agreement
(the "Lease Term"). Any attempt by Lessee to renegotiate this Lease Agreement shall be in
writing addressed to the City Manager or his designee at least one hundred eighty (180)
days before the expiration of the Lease Term, and at least 180 days before the expiration of
any additional renegotiated period. Lessee has the option to renew for two (2) additional ten
(10) year terms. The rental and terms to be negotiated shall be reasonable and consistent
with the then value, rentals and terms of similar property on the Airport.
3 - AM DAHP.Doc- Page 4
IV.
Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement,
the following payments, rentals and fees:
A. LAND RF.NTAT, shall be due and payable in the sure of $0.17 per square foot or
approximately $37,400.00 per year (the "Original Rent"), payable in twelve (12) equal
monthly installments in the sum of Three Thousand One Hundred Sixteen Dollars and sixty
seven cents ($3,116.67) in advance, on or before the 1 st day of each and every month during
the term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in
whole on or before the 1 st day of October, at the beginning of the City's fiscal year, each
and every year of this Lease Agreement.
1. The annual lease rental will be reduced by the current lease rate per square foot, as
adjusted by a survey performed prior to issuance of building permits, or as adjusted by the
CPI-U referenced in Section IV.C., times the number of square feet comprising all
easements established in accordance with Article II (D).
2. So long as Lessee is not in default under this Lease Agreement rental payments
will be abated until the issuance of the Certificate of Occupancy of the. first of the
Hangar/Office Space facilities or March 1, 2005, which ever occurs first (the "Rental
Abatement Period"). Should Lessee fail to commence or complete construction of Lessee's
Improvements as provided in Section II.C then rental for the Rental Abatement Period will
become immediately due and payable to Lessor.
Notwithstanding the foregoing, the annual lease rental will be adjusted by the current lease
rate per square foot, as adjusted by the CPI-U referenced in Section IV.C., times the number
of square feet comprising all easements established in accordance with Article II (D).
B. IESSOR 1M2R0VEAffi=,SRF.NTALS. NONE: There are no Lessor
improvements on the Leased Premises.
C. PAYMENT_ PF.NATXY_ AT).TTISTMRNTS. All payments due Lessor from Lessee
shall be made to Lessor at the offices of the Finance Department of the City of Denton,
Customer Service Division, 601 West Hickory, Denton, Texas, unless otherwise designated
in writing by the Lessor. If payments are not received on or before the 15th day of the
month, a five percent (5%) penalty will be due as of the 16th. If payments are not received
by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid
rental/fee amount will be due. A one percent (1%) charge will be added on the first of each
subsequent month until the unpaid rentallfee payment is made. The Original Rent for the
Leased Premises shall be readjusted at the end of each one year period during the Lease
Term on the basis of the proportion that the then current United States Consumer Price
Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics
bears to the previous odd month 2004 index, which was 179.1 (1982-84 = 100). Each
rental adjustment, if any, shall occur on the 7th day of September, beginning 2006, and
3 - AGR DAHP.Doc- Page 5
every other year thereafter on such date.
The adjustments in the yearly rent shall be determined by multiplying the Original
Rent by a fraction, the numerator of which is the index number for the last month prior to
the adjustment, and the denominator of which is the index number applicable at the
execution of this Lease Agreement. If the product of this multiplication is greater than
the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of
the next rental adjustment as called for in this section. If the product of this multiplication
is less than the Original Rent there shall be no adjustment in the annual rent at that time,
and Lessee shall pay the previous year's annual rent until the time of the next rental
adjustment as called for in this section. In no event shall any rental adjustment called for
in this section result in an annual rent less than the previous year's annual rent. The
adjustment shall be limited so that the annual rental payment determined for any given
two-year period shall not exceed the annual rental payment calculated for the previous
CPI adjustment by more than twenty percent (20%) percent.
If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort
Worth geographical region, as compiled by the U.S. Department of Labor, Bureau of Labor
Statistics, is discontinued during the Lease Term, the remaining rental adjustments called
for in this section shall be made using the formula set forth above, but by substituting the
index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For
All Items For All Urban Consumers (CPI-U) for the index numbers for the CPI-U
applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas-
Fort Worth geographical region and the U.S. City Average are discontinued during the
Lease Tenn, the remaining rental adjustments called for in this section shall be made using
the statistics of the Bureau of Labor Statistics of the United States Department of Labor that
are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical
region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to
exist or ceases to publish statistics concerning the purchasing power of the consumer dollar
during the Lease Term, the remaining rental adjustments called for in this section shall be
made using the most nearly comparable statistics published by a recognized financial
authority selected by Lessor.
V. RIGHTS AND OBLIGATIONS OF LESSEE
A. IISEa TEA FAD PREMISES. Lessee is granted the non-exclusive privilege to
engage in or provide the following:
L Flight Ins action. Less is granted the non-exclusive right to operate a flight
. instruction operation.
2. Pile. Lessee is granted the non-exclusive right to operate a pilot supply
retail operation.
3. Hangar Space Leasing Lessee is granted the non-exclusive right to rent hangar
space.
3 - AGR DARP.Doc- Page 6
4. Office Space Leasing Lessee is granted the non-exclusive right to rent office
space for aviation related activities or other commercial activities with written
approval of airport management. Non-aviation related activities will be
limited to Building #1 and will be limited to commercial operations using
office area only. Hangar/Aviation operations area shall not be impacted.
5. Tie-Down Services- Lessee is granted the non-exclusive right to charge for tie-
down services on Lessee's property.
6. Aircraft Maintenance Services- Lessee is granted the non-exclusive right to
perform aircraft maintenance services on Lessee's property.
7. Aircraft Charter Services. Lessee is granted the non-exclusive right to operate
aircraft charter services on Lessee's property.
8. Aircraft Painting Sere cP.G. Lessee is granted the non-exclusive right to
perform aircraft painting services on Lessee's property.
4. Aircraft Sales and Leasing. Lessee is granted the non-exclusive right. to
perform aircraft sales, leasing, management, and rental services on Lessee's
property.
10. Additional Services. Lessee is granted the non-exclusive right to perform
additional aircraft related services on Lessee's property with written approval
by airport management. Such approval will not be reasonably withheld.
11. Aircraft Fnpling Services- Lessee is granted the non-exclusive right to perform
aircraft fuel and oil storage and sales on Lessee's property.
12. Additional Services- Lessee is granted the non-exclusive right to perform
aircraft restoration services on Lessee's property.
Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct
any services not specifically listed mi this Lease Agreement. The use of the Leased Premises
by Lessee, its tenants, employees, invitees or guests shall be limited to only those private,
commercial, retail or industrial activities having to do with or related to airports and avia-
tion. No person, business or corporation may operate a commercial, retail or industrial
business upon the Leased Premises or upon the Airport without a lease or license from
Lessor authorizing such commercial, retail or industrial activity. The Lessor shall not
unreasonably withhold authorization to conduct aeronautical or related services.
B. STANDARDS- Lessee shall meet or exceed the following standards:
1. Address- Lessee shall file with the Airport Manager and keep current its
mailing addresses,. telephone numbers and contacts where it can be reached in
3 - AGR DAHP.Doc- Page 7
J
an emergency.
2. List, Lessee shall file with the Airport Manager and keep current a list of its
tenants and sublessees.
3. Conduct. Lessee shall contractually require its employees and sublessees (and
sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee
shall promptly enforce its contractual rights in the event of a default of such
covenants.
4. Utilities, TaXes and Fees. Lessee shall meet all expenses and payments in
connection with the use of the Leased Premises and the rights and privileges
herein granted, including the timely payment of utilities, taxes, permit fees,
license fees and assessments lawfully levied or assessed.
5. Laws. Lessee shall comply with all current and fature federal, state and local
laws, rules and regulations which may apply to the conduct of business
contemplated, including rules, regulations and ordinances promulgated by
Lessor, and Lessee shall keep in effect and post in a prominent place all
necessary anchor required licenses or permits.
6. Maintenance of Property. Lessee shall be responsible for the maintenance,
repair and upkeep of all property, buildings, structures and improvements,
including the mowing or elimination of grass and other vegetation on the
Leased Premises, and shall keep the Leased Premises neat, clean and in
respectable condition, free from any ob}ectional matter or thing, including
trash or debris. Lessee agrees not to utilize or permit others to utilize areas on
the Leased Premises which are located on the outside of any hangar or
building for the storage of wrecked or permanently disabled aircraft, aircraft
parts, automobiles, vehicles of any type, or any other equipment or items
which would distract from the appearance of the leased premises. Lessee
agrees that at no time shall the Leased Premises be used for a flea market type
sales operation.
7. Painting of Buildings. During the Lease Term of this Lease Agreement and
during each extension, Lessor shall have the right to require, not more than
once every five years, that the metal exterior of hangar(s) or building(s)
located on the Leased Premises be repainted. The Lessor may require Lessee
to repaint said exteriors according to Lessor's specifications (to specify color
of paint, quality of workmanship and the year and month in which the
hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete
the painting in accordance with such specifications within one (1) year of
receipt of notice from Lessor, Lessee agrees to pay all costs and expense
involved in the hangar or building painting process. Failure of Lessee to
complete the painting required by Lessor, within the one (1) year period shall
constitute Lessee's default under this Lease Agreement.
3 - AGR DAHP.Doc- Page 6
8. T Tnauthorized ySt of T ~ea,sed Premises. Lessee may not use any of the Leased
Premises for any use not authorized herein unless Lessor gives Lessee prior
written approval of such additional use. Without limiting the foregoing the
Leased Premises shall not be used for the operation of a motel, hotel,
restaurant, private club or bar, apartment house, storage of recreational
vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail,
or other purposes, except as authorized herein.
9. Dwellings. It is expressly understood and agreed that no dwelling or domicile
may be built, moved to or established on or within the Leased Premises nor
may lessee, its tenants, employees, invitees, or guests be permitted to reside or
remain as a resident on or within the Leased Premises or other Airport
premises.
10. Quit Possession. Lessee shall quit possession of the Leased Premises at the
end of the Lease Term or any renewal or extension thereof, or upon
cancellation or termination of the Lease Agreement, and deliver up the Lease
Premises to Lessor in as good condition as existed when possession was taken
by Lessee, reasonable wear and tear excepted.
11. Tnrfi=ia4. Lessee must indemnify, hold harmless and defend the Lessor, its
officers, agents and employees, froze and against liability for any and all
claims, liens, suits, demands and/or actions for damages, injuries to persons
(including death), property damage, (including loss of use), and expenses,
including court costs, attorneys' fees and other reasonable costs, occasioned
by or incidental to the Lessee's occupancy or use of the Leased Premises or
the Airport and/or activities conducted in connection with or incidental to this
Lease Agreement, including all such causes of action based on common,
constitutional or statutory law, or based in whole or in part upon the negligent
or intentional acts or omissions of Lessee, its officers, agents employees,
invitees or other persons. Lessee must at all times exercise reasonable
precautions on behalf of, and be solely responsible for, the safety of its
officers, employees, agents, customers, visitors, invitees, licensees and other
persons, as well as their property, while in, on, or involved in any way with
the use of the Leased Premises. The Lessor is not liable or responsible for
the negligence or intentional acts or omissions of the Lessee, its officers,
agents, employees, agents, customers, visitors and other persons. The Lessor
shall assume no responsibility or liability for harm, injury, or any damaging
events which are directly or indirectly attributable to premise defects, whether
real or alleged, which may now exist or which may hereafter arise upon the
Leased Premises, responsibility for all such defects being expressly assumed
by the Lessee. The Lessee agrees that this indern ity provision applies to all
claims, suits, demands, and actions arising from all premise defects or
conditions.
THE T.FS40R AND THF, LESSEE EXPRESSLY TNTEM MS
3 AGR DAHP.Doc- Page 9
TN U r]V IYPROVISION TO REQUIRE T Fu,9'RF.F. _ TO TNDFh4WEY.
AhM PROTECT THE LESSOR FROM THE C.ONSPOITENCES OF THE
LESSOR'S OWN NECTIMENC.E WHILE LESSOR IS PARTICIPATING
CONCURRING CAUSE OF THE BUTRY, DEATH, OR DAMAU
SF.NTF.NC.ES,THIS _TNDEMNEY PROVISION DOES NOT APPLY TO
ANY_ CLATM, LOSS, DAMA,M, CAUSE OF AC".TION,...,_.,STITT AND
FROM THE SOLE NECTLTCTE,NCE OF THE LESSOR. OR ANY OF TTS
EMPLOYEES, CONTRACTORS, OR AGENTS, I TNMTXFT) WITH THE
FAT IT I OF ANY 0114FR PER S 6N OR FNTITY
12. Chemiralc. Lessee agrees to properly store, collect and dispose of all
chemicals and. chemical residues; to properly store, confine, collect and
dispose of all paint, including paint spray in the atmosphere, and paint
products; and to comply with all Local, State and Federal regulations
governing the storage; handling or disposal of such chemicals and paints.
Further, the Lessee shall be solely responsible for all discharges, whether
accidental or intentional, of any chemical and for the costs associated with-the
cleanup, remediation and disposal of said chemicals.
13, Hazardous Activities, Should Lessee violate any law, rule, restriction or
regulation of the City of Denton or the Federal Aviation Administration, or
any other regulatory authority, or should the Lessee engage in or permit other
persons or agents to engage in activities which could produce hazards or
obstruction to air navigation, obstructions to visibility or interference with any
aircraft navigational aid station or device, whether airborne or on the ground,
then Lessor shall state such violation in writing and deliver written notice to
Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the
Leased Premises who are causing said violation(s), and upon delivery of such
written notice, Lessor shall have the right to demand that the person(s)
responsible for the violation(s) cease and desist from all such activity creating
the violation(s). In such event, Lessor shall have the right to demand that
corrective action, as required, be commenced immediately to restore the
Leased Premises into conformance with the particular law, rule or aeronautical
regulation being violated. Should Lessee, Lessee's agent, or the person(s)
responsible for the violation(s) fail to cease and desist from said violation(s)
and to immediately commence correcting the violation(s), and to complete
said corrections within twenty-four (24) hours following written notification,
then Lessor shall have the right to enter onto the Leased Premises and correct
the violation(s) at the sole cost and expense of Lessee, and Lessor shall not be
responsible for any damages incurred to any improvements on the Leased
Premises as a result of the corrective action process. In addition, such
violation shall be considered a material default by Lessee authorizing Lessor,
at its sole option and discretion, to immediately terminate and cancel this
3 - AGR DAHP.Doc- Page 10
Lease Agreement.
C. SIGNS. No signs, posters, or other similar devices ("Signage") shall be placed on
the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport
property without the prior written approval of Lessor. Lessee, at its sole expense, shall be
responsible for the creation, installation and maintenance of all such Signage. Lessee shall
pay to Lessor any and all damages, injuries, or repairs resulting from the installation,
maintenance or repair of any such Signage. Any Signage placed on the Leased Premises
shall be maintained at all times in a safe, neat, sightly and good physical condition. All
Signage shall be removed from the Leased Premises by Lessee immediately upon receipt of
instructions for removal of same from Lessor, including without limitation, upon expiration
or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor
may do so at the sole cost and expense of Lessee.
D. ENTRY. Lessor and its designees shall have the right to enter the Leased
Premises upon reasonable advance notice (written or oral) and at any reasonable times for
the purposes of inspecting the Leased Premises, performing any work which Lessor elects
to perform under this Lease Agreement, and exhibiting the Leased Premises for sale,
lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any
work, which under any other provision of this Lease Agreement Lessee is required- to
perform, and any performance by Lessor shall not constitute a waiver of Lessee's default.
VL COVENANTS BY LESSOR
Lessor hereby agrees as follows:
A. PEACEFUL ENJOYMENT. Upon on payment of all rent, fees, and performance
of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee
shall peaceably hold and enjoy the Leased Premises and all rights and privileges herein
granted;
B. C OMPT .TANCF., Lessor warrants and represents that in the establishment,
construction and operation of the Airport, that Lessor has heretofore and at this time is
complying with all existing rules, regulations, and criteria distributed by the Federal
Aviation Administration, or any other governmental authority relating to and including, but
not limited to, noise abatement, air rights and easements over adjoining and contiguous
areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for
any action of trespass or similar cause of action by virtue of any aerial operations of
adjoining property in the course of normal take-off and landing procedures from the
Airport; Lessor further warrants and represents that at all times during the Lease Term, or
any renewal or extension of same, that it will continue to comply with the foregoing.
VII. SPEC"TAL C ONT)TTTC)NS
It is expressly understood and agreed by and between Lessor and Lessee that this
Lease Agreement is subject to the following special terms and conditions.
3 AGR DAaP.DOC- Page 11
RUNWAYS AND TAXTLYAYS. Because of the present thirty thousand (30,000)
pound continuous use weight bearing capacity of the runway and taxiways of the Airport,
Lessee herein agrees to limit all aeronautical activity including landing, take-off and taxiing,
to aircraft having an actual weight, including the weight of its fuel, of thirty thousand
(30,000) pounds or less, until such time that the runway and designated taxiways on the
Airport have been improved to handle aircraft of such excessive weights. It is further
agreed that, based on qualified engineering studies, the weight restrictions and provisions of
this clause may be adjusted, up or down, and that Lessee agrees to abide by any such
changes or revisions as such studies may dictate. "Aeronautical activity" referred to in this
clause shall include any activity of the Lessee or its agents or subcontractors, and its
customers and invitees, but shall not include those activities over which it has no soiicitory
part or control, such as an unsolicited or unscheduled or emergency landing. A pattern, of
violating the provisions of this section on two or more occasions shall be sufficient to cause
the immediate termination of this entire Lease Agreement and subject Lessee to liability for
any damages to the Airport that might result.
VIII. LEASETTOLD WPRnVFA=S
A. REQUIREMENTS- Before commencing the construction of any improvements
on the Leased Premises including Lessee's Improvements (the "Lease Improvements"),
Lessee shall submit:
1. Documentation, specifications, or design work, to be approved by the Lessor,
which shall establish that the improvements to be built or constructed upon the
Leased Premises are in conformance with the overall size, shape, color, quality
and design, in appearance and structure of the program established by Lessor
on the Airport,
2. All plans and specifications showing the location upon the Leased Premises of
the proposed construction and improvements;
3. The estimated cost of such construction.
No construction may commence until Lessor has approved the plans and
specifications and the location of the Lease Improvements, and the estimated costs of such
construction. Approval by the Lessor shall not be unreasonably withheld. Documentary
evidence of the actual cost of construction on public areas only (such as taxiways) shall be
delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by
Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy
of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he
shall have found to have been paid by Lessee, and the findings of the City Manager when
endorsed by him upon said contract shall be conclusive upon all parties for all purposes of
this Lease Agreement.
No later than 30 days after completion of the Lease Improvements, Lessee shall
3 - AGR DARP.Doc- Page 12
submit to Lessor detailed as built plans of the Lease Improvements and documentary
evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements
("Cost to Construct Lease Improvements").
B. ADMIONAT,, CONSTRTJ!CJYCLT OR TMPROVFMFNTS: Lessee is hereby
authorized to construct upon the Leased Premises, at its own cost and expense, buildings,
hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in
connection with the operations authorized by this Lease Agreement, provided however,
Lessee shall comply with all of the requirements of Section VIII.A., above. Such additional
improvements shall be a part of the Lease Improvements.
C. OWNFRSHTP OF TMPROV'FMFNTS: Except as otherwise provided in this
Lease Agreement, the Lease Improvements constructed upon the Leased Premises by
Lessee shall remain the property of Lessee during the Lease Term subject to the following
conditions, terms and provisions:
1. Buildings. Emoval of No building or permanent fixture may be removed
from the Leased Premises.
2. Assumntinn. The Lease Improvements shall automatically become the
property of Lessor absolutely free, without any cost to Lessor, at the end of the
Lease Term, or any extension thereof.
3. Failure to Complete Lessee's Tmprovements. The Lease Improvements shall
immediately become the property of Lessor at no cost, expense, or
compensation to Lessee should Lessee fail to complete the Lessee's
Improvements within the Construction Period as provided in Section II.C of
this Lease Agreement.
4. Cancellation or Termination. Should this Lease Agreement be cancelled or
terminated before the end of the Lease Term, or extension thereof, Lessor
shall have the right to purchase all of the Lease Improvements. In the event of
a cancellation or termination., other then due to a default by Lessee that has not
been cured as provided below, the purchase price shall be equal to the most
recent value of the Lease Improvements as determined by the Denton County
Central Appraisal District ("Value of the Lease Improvements") reduced by
1130 for each year of the Lease Term that has expired as of the date of
termination (the "Purchase Price"). Should the Denton County Central
Appraisal District not determine a separate value for the Lease Improvements
then the Purchase Price will be determined taking the Cost to Construct the
Lease Improvements reduced by 1130 for each year the Lease Term has
expired as of the date of termination. If the termination or cancellation is due
to a default by Lessee that has not been cured within 30 days after written
notice of default to Lessee, then the Purchase Price as determined above shall
be reduced by 50%.
3 - AGR DAHP.Doc- Page 13
IX. STTRROGABON QF MORIGACTFF
Any person, corporation or institution that lends money to Lessee for construction
of any hangar, structure, building or improvement and retains a security interest in said
hangar, structure, building or improvement shall, upon default of Lessee's obligations to
said mortgagee, have the right to enter upon the Leased Premises and operate or manage
said hangar, structure, building or improvement according to the terms of this Lease
Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the
loan is paid in full, whichever comes first, but in no event longer than the Lease Term. It
is expressly understood and agreed that the right of the mortgagee referred to herein is
limited and restricted to those improvements constructed with funds borrowed from
mortgagee, those improvements purchased with the borrowed funds, and those
improvements pledged to secure the refinancing of the improvements.
X. RTCTHT OF F.ASF.MF.NT
Lessor shall have the right to establish easements, at no cost to Lessee, upon the
Leased Premises for the purpose of providing underground utility services to, from or
across the Airport property or for the construction of public facilities on the Airport.
However, any such easements shall not interfere with Lessee's use of the Leased Premises
and Lessor shall restore the property to the original condition as is reasonable practicable
upon the installation of any utility services on, in, over or under any such easement at the
conclusion of such construction. Construction in or at the easement shall be completed
within a reasonable time.
XI. ASSIGNMENT OF LEASE
Lessee expressly covenants that it will not assign this Lease Agreement, convey more
than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise,
transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose,
except for rental of hangar space or tie-down space for storage of aircraft only, without the
written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval
of such sale, sublease, transfer, license, or assignment of the facilities for Airport related
purposes; provided however, that no such assignment, sublease, transfer, license, sale or
otherwise shall be approved if the rental, fees or payments, received or charged are 'in excess
of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion
of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or
otherwise. The provisions of this Lease Agreement shall remain binding upon the
assignees, if any, of Lessee.
XH. IMST lR ANC li.,
A. RF.QI TTR FT7 TNST TRANCE: Regardless of the activities contemplated under this
Lease Agreement, Lessee shall maintain continuously in effect at all times during the term
of this agreement, at Lessee's sole expense, the following minimum insurance coverages:
3 - AGR DAHP.Doc- Page 14
1. Commercial (Public) General Liability covering the Lessee or its company, its
employees, agents, tenants and independent contractors, and its operations on the
airport. Coverage shall be in an amount not less than $1,000,000 per occurrence
and provide coverage for premises/operations and contractual liability AND where
exposure exists, coverage for: products/completed operations; explosion, collapse
and underground property damage.
2. All risk property insurance on a replacement cost basis covering loss or damage to
all facilities used by the Lessee, either as a part of this agreement or erected by the
Lessee subsequent to this agreement. Under no circumstances shall the Lessor be
liable for any damages to fixtures, merchandise or other personal property of the
Lessee or its tenants. Further, the City of Denton shall be named as a Loss Payee.
3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non-
Owned Autos and Hired Cars:
For operation in aircraft movement areas the limit of liability shall be $100,000
per occurrence.
For other operations the limit of liability shall be consistent with the amount set
by State Law.
B. ADDITIONAL COVERAGES: In addition to the above referenced coverages, the
following insurance is required if the activity or exposure exists or is contemplated:
1. Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public)
General Liability shall include coverage or separate coverage shall be provided for
Environmental Impairment Liability.
2. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat) shall
be provided.
3. Aircraft Rental or Flight Training - Aircraft Liability in the amount of $1,000,000
per occurrence to include Hull Coverage and Liability, Passenger Liability in the
amount of $100,000 per person (per passenger seat) and Student/Renter Liability
covering all users in the amount of $500,000 per occurrence.
4. Specialized Commercial Flying (including crop dusting, seeding, and spraying,
banner towing and aerial advertising, aerial photography and surveying, fire
fighting, power line or pipe line patrol) - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat)
shall be provided.
3 - AGA DAHP.Doc- Page 15
5. Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Hanger Keepers Liability in the amount of $500,000 per occurrence shall be
provided.
C. COVERAGE. RFQII REWNIS: All insurance coverages shall comply with the
following requirements:
1. All liability policies shall name the City of Denton, and its officers and employees
as an additional named insured and provide for a minimum of 30 days written
notice to the City of any cancellation or material change to the policy.
2. All insurance required by this Lease Agreement must be issued by a company or
companies of sound and adequate financial responsibility and authorized to do
business in the State of Texas. All policies are subject to the examination and
approval of the City's office of Risk Management for their adequacy as to content,
form of protection and providing company.
3. Required insurance naming the City as an additional insured must be primary
insurance and not contributing with any other insurance available to the City
whether from a third party liability policy or other. Said limits of insurance shall in
no way limit the liability of the Lessee hereunder.
4. The Lessor shall be provided with a copy of all such policies and renewal
certificates. Failure of Lessee to comply with the minimum specified amounts or
types of insurance as required by Lessor shall constitute Lessee's default of this
Lease Agreement.
5. During the Lease Term, or any extension thereof, Lessor herein reserves the right
to, with 60 days notice, adjust or increase the liability insurance amounts required
of the Lessee, and to require any additional rider, provisions, or certificates of
insurance, and Lessee hereby agrees to provide any such insurance requirements as
may be required by Lessor; provided however, that any requirements shall be
commensurate with insurance requirements at other public use airports similar to
the Denton Municipal Airport in size and in scope of aviation activities, located in
the southwestern region of the United States.
XIII. CANCEL LATION RY T FSSOR
In the event that Lessee shall file a voluntary petition in bankruptcy or proceedings in
bankruptcy shall be instituted against it and Lessee thereafter is adjudicated bankrupt
pursuant to such proceedings, or any court shall take jurisdiction of Lessee and its assets
pursuant to proceedings brought under the provisions of any Federal reorganization act, or
Lessee shall be divested of its estate herein by other operation of law; or Lessee shall fail to
3 - AGR DAHP.Doc- Page 16
perform, keep and observe any of the terms, covenants, or conditions herein contained, or
on its part to be performed, the Lessor may give Lessee written notice to correct such
condition or cure such default and, if any condition or default shall continue for thirty (30)
days after the receipt of such notice by Lessee, then Lessor may terminate this Lease
Agreement by written notice to Lessee. In the event of default, Lessor has the right to
purchase any or all of the Lease Improvements under the provisions of Section VIII.C.4.
hereof
X1 1. C',ANCRTJ,ATTCIN BY LFSSF,F.
Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of
its obligations hereunder at any time, by thirty (30) days written notice, upon or after the
happening of anyone of the following events: (1) issuance by any court of competent juris-
diction of a permanent injunction in any way preventing or restraining the use of the Airport
or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or
agreements contained herein and the failure of Lessor to remedy such breach for a period of
ninety (90) days after receipt of a written notice of the existence of such breach; (3) the
inability of Lessee to use the Lease Premises and facilities continuing for a longer period
than ninety (90) days due to any law or any order, rule or regulation of any appropriate
governmental authority having jurisdiction over the operations of Lessor or due to war,
earthquake or other casualty; or (4) the assumption or recapture by the United States
Government, or any authorized agency thereof, of the maintenance and operation of said
airport and facilities or any substantial part or parts thereof.
Upon the happening of any of the four events listed in the preceding paragraph, such
that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel
this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its
terms, except, however, that the use of the Leased Premises shall not be limited to aviation
purposes, their use being only limited by. such laws and ordinances as may be applicable at
that time.
XV. MTSC;F,T.T.ANEOTTS PROVTSTONS
A. ENTIRE ACTREEMENT. This Lease Agreement constitutes the entire
understanding between the parties and as of its Effective Date supersedes all prior or
independent Agreements between the parties covering the subject matter hereof. Any
change or modification hereof shall be in writing signed by both parties.
B. TRTNDINCT FFFFC'.T. All covenants, stipulations and agreements herein shall
extend to, bind and inure to the benefit of the legal representatives, successors and assigns
of the respective parties hereto.
C. SEVERABTLTTY. If a provision hereof shall be finally declared void or illegal by
any court or administrative agency having jurisdiction, the entire Lease Agreement shall not
be void; but the remaining provisions shall continue in effect as nearly as possible in
3 - AGR DAHP.Doc- Page 17
}
accordance with the original intent of the parties.
D. NOTICE. Any notice given by one party to the other in connection with this
Lease Agreement shall be in writing and shall be sent by certified mail, return receipt
requested, with postage fees prepaid or via facsimile as follows:
1. If to Lessor, addressed to:
City Manager
City of Denton
215 E. McKinney Street
Denton, Texas 76201
Fax No.940.349.8596
2. If to Lessee, addressed to:
Mr. Alan D. Stricklin
CEO & President
Denton Airport Hangars, LLC
3932 Bexhill Dr.
Plano, Texas 75025
Fax 972.491.2439
E. HF,ADINGS. The headings used in this Lease Agreement are intended for
convenience of reference only and do not define or limit the scope or meaning of any
provision of this Agreement.
F. GOVERNING I.AW ANT) VENT TE. This Lease Agreement is to be construed in
accordance with the laws of the State of Texas and is fully performable in Denton County,
Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease
Agreement shall be a court of competent jurisdiction in Denton County, Texas.
G. NO WAIVER, No waiver by Lessor or Lessee of any default or breach of
covenant or term of this Lease Agreement may be treated as a waiver of any subsequent
default or breach of the same or any other covenant or term of this Lease Agreement.
H. NO AGENCY. During all times that this Lease Agreement is in effect, the parties
agree that Lessee is and shall not be deemed an agent or employee of the Lessor.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the
Effective Date first above written.
CITY OF DENTON, TEXAS, LESSOR
3 AGR DMP.Doc- Page 18
3
BY:
MICHAEL A. C NDUF MANAGER
ATTEST:
fENNIFER WALTERS, CITY SECRETARY
BY: W Aa, )A A.2
.APP D A TO LP-GAL FORM:
HE RZPkRO , CITY ATTORNEY
BY:
DENTON ORT HANGARS, LLC.
BY:
ALAN D. STRICKLIN,
CEO & PRESIDENT
ACKNOWLEDGMENTS
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of 04, by
If ~ Michael A. Conduff, City Manager of the City of Denton, Texas, on behalf of said
municipality.
tY y f`
JANE E, RICHARDSON
Notary Public, state of Texas j
y a My Commission Expires N WARY PUBLIC, STATE OF TEXAS
June 27, 2005
THE STATE OF TEXAS §
3 - AGR DAHP.Doc- Page 19
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of AUq 2004 by
Alan Stricklin, President & CEO, Denton Airport Hangars, LLC
n
CMC7fWNON
NOW PAft VOY PUBL , S AT XAS
YV Gan~iMon /~~i
3 AGR DAHP.Doc- Page 20
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Airport and Transportation Operations
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider adoption of an ordinance approving a commercial operator airport lease agreement
between the City of Denton, Texas and NTDenton Leasing, Inc. on approximately 1.033 acre of
land at the Denton Municipal Airport; and providing an effective date. Airport Advisory Board
unanimously recommends approval 7-0.
BACKGROUND
Mr. Chuck Jones of NTDenton Leasing has requested permission to lease approximately 25,500
square feet of land in the southeast development area of Denton Airport. The terms of the lease
would obligate NTDenton Leasing to construct a minimum hangar/office facility of 10,000
square feet. All improvements must be completed within 720 days. The facility will be
constructed for commercial aviation related operations and will primarily be used for commercial
aircraft storage.
ESTIMATED SCHEDULE OF PROJECT
The lease would become effective June 21, 2005 and continue through the 20th day of June 2035
(30 years). The lease also provides for two successive option terms of ten years each.
PRIOR ACTION/REVIEW
The City Attorney's Office has reviewed the lease agreement and the Airport Advisory Board
unanimously recommends approval of the agreement 7-0. Staff recommends approval of the
agreement as submitted.
FISCAL INFORMATION
The lease rate for the identified site is $0.17 per square foot per year. The lease rate for the first
two years will total $4,335 per year. The lease agreement provides for rate adjustments every
other year for the term of the lease per FAA requirements.
EXHIBITS
Ordinance
Lease Agreement
1
Respectfully submitted:
Mark Nelson, Director
Airport and Transit Operations
2
SAOUR DOCUMENTSIAIRPORT%Ordinances-ResolutionslAirport Lease-NTDenton Leasing.doe
ORDINANCE NO.
AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND NTDENTON LEASING,
INC. ON APPROXIMATELY 1.033 ACRE OF LAND AT THE DENTON MUNICIPAL
AIRPORT; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute an airport
lease agreement for commercial operator between the City of Denton and NTDenton Leasing,
Inc. on approximately 1.033 acre of land at the Denton Municipal Airport, in substantially the
form of the Airport Lease Agreement which is attached to and made a part of this ordinance for
all purposes.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, TERIM CITY ATTORNEY
BY:
NTDenton Leasing AGR.doc
AIRPORT LEASE AGREEMENT
COMMERCIAL OPERATOR
This Lease Agreement is made and executed to be effective as of the Twenty-First day
of June, 2005 (the "Effective Date') at Denton, Texas, by and between the City of Denton,
Texas, a municipal corporation, hereinafter referred to as "Lessor", and NTDenton Leasing,
Incorporated, hereinafter referred to as "Lessee".
WIT'NESSETH:
WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport
(the "Airport") in the City of Denton, County of Denton, State of Texas; and
WHEREAS, Lessee desires to lease certain premises at the Airport and construct and
maintain an aircraft hangar and related aviation facilities thereon;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained in this Agreement, the parties agree as follows:
I. CQNDI1ION,SOF T~F:ASF. AGREEMENT
NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER
CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS
SECTION SHALL BE BINDING.
A. PRINCIPLES OF OPERATIONS. The right to conduct aeronautical and related
activities for furnishing services to the public is granted to Lessee subject to Lessee
agreeing:
1. To furnish said services on a fair, equal and not unjustly discriminatory basis
to all users thereof, and
2. To charge fair, reasonable and not unjustly discriminatory prices for each unit
or service; provided, that Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price reductions
to volume purchasers.
B. 'NON-D1gC''R 1 M iNA1110N: Lessee, for itself, its personal representatives,
successors, and assigns, as a part of the consideration hereof, does hereby
covenant and agree as a covenant running with the land that:
1. No person on the grounds of race, religion, color, sex, or national origin shall
be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities;
2. In the construction of any improvements on, over, or under such land and the
r '
furnishing of services thereon, no person on the grounds of race, religion,
color, sex, or national origin shall be excluded from participation in, denied
the benefits of, or otherwise be subjected to discrimination;
3. Lessee shall use the premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations, Department
of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimi-
nation in Federally assisted programs of the Department of Transportation -
Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may
be amended.
C. RTGHT OF TNDTVMIJAT.S 10 MAWTATN ATRC`.RAET. , It is clearly
understood by Lessee that no right or privilege has been granted which would operate to
prevent any person, firm or corporation operating aircraft on the Airport from performing
any services on its own aircraft with its own regular employees (including, but not limited
to, maintenance and repair) that it may choose to perform.
D. WON-EXC".T T TSTVE RIGHT. It is understood and agreed that nothing herein
contained shall be construed to grant or authorize the granting of an exclusive right within
the meaning of Title 49 U.S.C. Appendix §1349.
E. PITRTTC AREAS..
1. Lessor reserves the right to further develop or improve the landing area of the
Airport as it sees fit, regardless of the desires or views of Lessee, and without
interference or hindrance.
2. Lessor shall be obligated to maintain and keep in good repair the landing area
of the Airport and all publicly owned facilities of the Airport, together with the
right to direct and control. all activities of Lessee in this regard.
3. During time of war or national emergency, Lessor shall have the right to lease
the landing area or any part thereof to the United States Government for
military or naval use, and, if such lease is executed, the provisions of this
instrument insofar as they are inconsistent with the provisions of the lease to
the Government, shall be suspended.
4. Lessor reserves the right to take any action it considers necessary to protect the
aerial approaches of the Airport against obstruction, together with the right to
prevent Lessee from erecting, or permitting to be erected, any building or other
structure on or adjacent to the Airport which, in the opinion of Lessor, would
limit the usefulness or safety of the Airport or constitute a hazard to aircraft or
to aircraft navigation. The hangar/office/shop complex as currently proposed
as provided in Section II.D. does not violate this provision.
5. This Lease Agreement shall be subordinate to the provisions of any existing or
NTAenton Leasing AGR.doc- Page 2
future agreement between Lessor and the United States or agency thereof,
relative to the operation or maintenance of the Airport.
IC. LEASE PR FMISRS
Lessor, for and in consideration of the covenants and agreements herein contained, to
be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease
from Lessor, for the lease term described in Article III, the following described land situated
in Denton County, Texas:
A. T,AED. A tract of land, being approximately 150 feet by 170 feet or 0.5854 acre,
drawn and outlined on Attachment "A", and legally described in Attachment "B" as Parcel
1, such attachments being incorporated herein by reference (the "Leased Premises").
Together with the right of ingress and egress to the Leased Premises; and the right in
common with others so authorized of passage upon the Airport property generally, subject
to reasonable regulations by the City of Denton and such rights shall extend to Lessee's
employees, passengers, patrons and invitees. For purposes of this agreement, the term
"Leased Premises" shall mean all property located within the metes and bounds described
and identified within Attachment "B", including leasehold improvements constructed by the
Lessee, but not including certain easements or property owned and/or controlled by the
Lessor.
A legal description of the leased premises is not currently attached as Attachment "B".
Lessee shall deliver to Lessor no later then 30 days after the date of this Agreement a legal
description of the leased premises accurately describing the leased premises that is
acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this
Agreement, in which case it will have no further force and effect. The approved legal
description will be attached to this Agreement as Attachment "B".
B. WPIRMLEMENIq PROVMFD By LESS : NONE: There will be no
improvements provided by Lessor, except as set forth in Article II.F. "Access to Utilities"
below.
The term "Lessor improvements" shall mean those things on or adjacent to the
Leased Premises belonging to, constructed by, or to be constructed by the Lessor. Unless
otherwise noted herein, all Lessor improvements are and will remain the property of Lessor.
All Lessor improvements must be described in detail above, or above referenced and
attached to this Agreement in an exhibit approved by Lessor.
D.. IMPROVEMENTS RE D=ED By TESS SEE On the Leased Premises, Lessee
shall construct a hangar not less than 10,000 square feet with taxiway access.
Lessee shall also construct appropriate culverts or drainage as required by City
ordinances in the utility right of way south and north of the proposed hangar as well as other
improvements as determined necessary by City ordinances (All above described
NTDenton Leasing AGR.doc- Page 3
improvements to be constructed by Lessee are called the "Lessee's Improvements"}.
Construction of Lessee's Improvements shall be commenced no later than 270 days (the
"Commencement Period") and completed no later than 720 days after the Effective Date
(the "Construction Period"). Construction of Lessee's Improvements are considered
commenced upon issuance of a building permit and construction of any portion of the
hangar. Construction of Lessee's Improvements are considered complete upon the issuance
of a Certificate of Occupancy for the entire hangar, drainage and utility improvements are
completed. In addition, as a condition precedent to the effectiveness of this Lease
Agreement, within 60 days after the Effective Date of this Lease Agreement, Lessee shall
provide to Lessor (i) a written estimate of the cost to construct Lessee's Improvements
prepared by a contractor who has demonstrated experience in the successful construction of
improvements similar to Lessee's Improvements (the "Construction Cost Estimate'), (ii) a
written schedule of construction to complete Lessee's Improvements, and (iii) a written loan
commitment from a lending institution providing for sufficient funding to cover the
Construction Cost Estimate (called "Conditions Precedent"). Should the Conditions
Precedent not be met either party may terminate this Lease Agreement by giving the other
party written notice, in which case this Lease Agreement shall be null and void and of no
further force and effect. Such termination. shall not prevent the Lessee from submitting a
new proposed lease request at a later date. The parties may extend the 60 day time period if
in writing signed by both parties. Lessee is not entitled to take possession of the Leased
Premises under this Lease Agreement until the Conditions Precedent have been fulfilled.
Notwithstanding anything contained in this Lease Agreement to the contrary, a
failure to commence the Lessee's Improvements within the Commencement Period or
to complete the Lessee's Improvements within the Construction Period may, at the
sole option and discretion of the Lessor, result in the immediate termination and
cancellation of this Lease Agreement upon 30 days written notice of cancellation to
Lessee. In such case Lessee's rights under the Lease Agreement will immediately
cease and be forfeited, and all of Lessee's Improvements shall immediately become the
property of Lessor at no cost, expense or other compensation paid by Lessor to
Lessee; and Lessee shall immediately vacate the Leased Premises.
E. EASEMENTS. Lessor and Lessee by mutual agreement may establish, on the
Leased Premises, easements for public access on roads and taxiways.
F. ACCESS TC) Tff TTTF,S Lessor represents that there are water, sewer and 3-
phase electricity lines within close proximity to the Leased Premises available to "tap-in" by
Lessee, and that the same are sufficient for usual and customary service on the Leased
Premises.
III. ]EF.RM
The term of this Lease Agreement shall be for a period of thirty (30) years, com-
mencing on the 215E day of June, 2005 and continuing through the 20Eh day of June of 2035,
unless earlier terminated under the provisions of the Lease Agreement (the "Lease Term").
Lessee has the option to renew for two (2) additional ten (10) year terms. In order to
NTDenton Leasing Agreement.doc- Page 4
exercise the first option Lessee must provide written notice to Lessor of its intent to exercise
the first 10 year option no later than 180 days before the expiration of the 30 year primary
term. To exercise the second option such written notice must be provided no later than 180
days before the expiration of the first 10 year option term. The rental and terms to be
negotiated for the option terms shall be reasonable and consistent with the then value,
rentals and terms of similar property on the Airport.
N. PAYMENTS, RFNTAI.9 AND FFFS
Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement,
the following payments, rentals and fees:
A. LAND AND RENTAL Rental shall be due and payable to Lessor in the sum
of $0.17 per square foot or $4,335.00 per year (the "Original Rent'), payable in twelve (12)
equal monthly installments in the sum of Three Hundred Sixty-one Dollars and Twenty-five
Cents ($361.25) in advance, on or before the 1st day of each and every month during the
term of this Lease Agreement. Lessee has the option to pay annual rentals and fees in whole
on or before the I" day of October, at the beginning of the City's fiscal year, each and every
year of this Lease Agreement.
Notwithstanding the foregoing, the annual rental will be reduced by the current lease rate
per square foot, as adjusted by the CPI-U referenced in Section N.C., times the number of
square feet comprising all easements established in accordance with Article 11 (E).
B. T •ESSOR TM-PROVEM=S RENTALS. NONE: There are no Lessor
improvements on the Leased Premises.
C. . All payments due Lessor from Lessee
shall be made to Lessor at the offices of the Finance Department of the City of Denton,
Customer Service Division, 601 West Hickory, Denton, Texas, unless otherwise designated
in writing by the Lessor. If payments are not received on or before the 15th day of the
month, a five percent (5%) penalty will be due as of the 16th. If payments are not received
by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid
rental/fee amount will be due. A one percent (1 charge will be added on the first of each
subsequent month until the unpaid rental/fee payment is made. The Original Rent for the
Leased Premises shall be readjusted at the end of each one year period during the Lease
Term on the basis of the proportion that the then current United States Consumer Price
Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics
bears to the previous odd month 2005 index (March), which was 19 1 *1 (1982-84 = 100).
Each rental adjustment, if any, shall occur on the 1 st day of May, beginning 2007, and
every other year thereafter on such date.
The adjustments in the yearly rent shall be determined by multiplying the Original
Rent by a fraction, the numerator of which is the index number for the last month prior to
the adjustment, and the denominator of which is the index number applicable at the
execution of this Lease Agreement. If the product of this multiplication is greater than
NTDenton Leasing AGR.doc- Page 5
the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of
the next rental adjustment as called for in this section. If the product of this multiplication
is less than the Original Rent there shall be no adjustment in the annual rent at that time,
and Lessee shall pay the previous year's annual rent until the time of the next rental
adjustment as called for in this section. In no event shall any rental adjustment called for
in this section result in an annual rent less than the previous year's annual rent. The
adjustment shall be limited so that the annual rental payment determined for any given
two-year period shall not exceed the annual rental payment calculated for the previous
CPI adjustment by more than twenty percent (20%) percent.
If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort
Worth geographical region, as compiled by the U.S. Department of Labor, Bureau of Labor
Statistics, is discontinued during the Lease Term, the remaining rental adjustments called
for in this section shall be made using the formula set forth above, but by substituting the
index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For
All Items For All Urban Consumers (CPI-U) for the index numbers for the CPI-U
applicable to the Dallas-Fort Worth geographical region. If both the CPI-U for the Dallas-
Fort Worth geographical region and the U.S. City Average are discontinued during the
Lease Term, the remaining rental adjustments called for in this section shall be made using
the statistics of the Bureau of Labor Statistics of the United States Department of Labor that
are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical
region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to
exist or ceases to publish statistics concerning the purchasing power of the consumer dollar
during the Lease Term, the remaining rental adjustments called for in this section shall be
made using the most nearly comparable statistics published by a recognized financial
authority selected by Lessor.
V. Ru±Ul; ANTI0RT1GATTONS nFT SSEE
A. PREMISES. 11-SE OF LEASED Lessee is granted the non-exclusive privilege to
engage in owner/operator activities providing the following aviation services:
1. Hangar and Office. Slance . Lessee is granted the non-exclusive right to
rent hangar and office space.
2. Maintenance. General Aimraft Lessee is granted the non-exclusive right to
conduct airframe and power plant maintenance services.
3. Aircraft Saiec and Bm erage_ Lessee is granted the non-exclusive right to
engage in the sale and/or brokering of aircraft.
4. Tie-Down Servines. Lessee is granted the non-exclusive right to charge for tie-
down services on Lessee's property.
Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct
any services not specifically listed in this Lease Agreement. The use of the Leased Premises
NTDenton Leasing AGR.doc- Page 6
by Lessee, its tenants, employees, invitees or guests shall be limited to only those private,
commercial, retail or industrial activities having to do with or related to airports and avia-
tion. Except as specifically authorized in this Lease Agreement, no person, business or
corporation may operate a commercial, retail or industrial business upon the Leased
Premises or upon the Airport without a lease or license from Lessor authorizing such
commercial, retail or industrial activity. The Lessor shall not unreasonably withhold
authorization to conduct aeronautical or related services.
13. STANDARDS_ Lessee shall meet or exceed the following standards:
1. Address. Lessee shall file with the Airport Manager and keep current its
mailing addresses, telephone numbers and contacts where it can be reached in
an emergency.
2. Lim.. Lessee shall file with the Airport Manager and keep current a list of its
tenants and sublessees, to include a list of aircraft and the aircraft's
corresponding aircraft identification number.
3. Conduct. Lessee shall contractually require its employees and sublessees (anal
sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee
shall promptly enforce its contractual rights in the event of a default of such
covenants.
4. Utilities, Tnxe,,,, and Ecesand Other Costs- Lessee shall meet all expenses and
payments in connection with the use of the Leased Premises and the rights and
privileges herein granted, including the timely payment of utilities, tames,
permit fees, license fees and assessments lawfully levied or assessed. In the
event of an assignment, transfer or conveyance under Section )CI of this Lease
Agreement or termination or cancellation of this Lease Agreement due to the
default of Lessee, Lessee shall pay to Lessor all Lessor's costs of such
assignment, transfer, conveyance, or cancellation including without limitation,
all Lessor's attorneys fees, staff time and administrative costs necessary to
handle or process such assignment, transfer, conveyance or cancellation.
5. Law-& Lessee shall comply with all current and future federal, state and local
laws, rules and regulations which may apply to the conduct of business
contemplated, including rules, regulations and ordinances promulgated by
Lessor, and Lessee shall keep in effect and post in a prominent place all
necessary and/or required licenses or permits.
6. Maintenance of P=mU. Lessee shall be responsible for the maintenance,
repair and upkeep of all property, buildings, structures and improvements,
including the mowing or elimination of grass and other vegetation on the
Leased Premises, and shall keep the Leased Premises neat, clean and in
respectable condition, free from any objectional matter or thing, including
trash or debris. Lessee agrees not to utilize or permit others to utilize areas on
NTnenton Leasing AGR.doc- Page 7
the Leased Premises which are located on the outside of any hangar or
building for the storage of wrecked or permanently disabled aircraft, aircraft
parts, automobiles, vehicles of any type, or any other equipment or items
which would distract from the appearance of the leased premises. Lessee
agrees that at no time shall the Leased Premises be used for a flea market type
sales operation.
7. Pninting of Buildings. During the Lease Term of this Lease Agreement and
during each extension, Lessor shall have the right to require, not more than
once every five years, that the metal exterior of hangar(s) or building(s)
located on the Leased Premises be repainted. The Lessor may require Lessee
to repaint said exteriors according to Lessor's specifications (to specify color
of paint, quality of workmanship and the year and month in which the
hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete
the painting in accordance with such specifications within one (1) year of
receipt of notice from Lessor. Lessee agrees to pay all costs and expense
involved in the hangar or building painting process. Failure of Lessee to
complete the painting required by Lessor, within the one (1) year period shall
constitute Lessee's default under this Lease Agreement.
8. Unauthorized use nf Teised Premises. Lessee may not use any of the Leased
Premises for any use not authorized herein unless Lessor gives Lessee prior
written approval of such additional use. Without limiting the foregoing the
Leased Premises shall not be used for the operation of a motel, hotel,
restaurant, private club or bar, apartment house, storage of recreational
vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail,
or other purposes, except as authorized herein.
9. Dwellings. It is expressly understood and agreed that no dwelling or domicile
may be built, moved to or established on or within the Leased Premises nor
may lessee, its tenants, employees, invitees, or guests be permitted to reside or
remain as a resident on or within the Leased Premises or other Airport
premises. Lessee may have a pilot lounge, including restroom and shower
facilities for use by flight crew and passengers.
10. Quit Possession. Lessee shall quit possession of the Leased Premises at the
end of the Lease Term or any renewal or extension thereof, or upon
cancellation or termination of the Lease Agreement, and deliver up the Lease
Premises to Lessor in as good condition as existed when possession was taken
by Lessee, reasonable wear and tear excepted.
11. iDdemni Lessee must indemnify, hold harmless and defend the Lessor, its
officers, agents and employees, from and against liability for any and all
claims, liens, suits, demands and/or actions for damages, injuries to persons
(including death), property damage, (including loss of use), and expenses,
including court costs, attorneys' fees and other reasonable costs, occasioned
NTDenton Leasing AGR.doc- Page 8
by or incidental to the Lessee's occupancy or use of the Leased Premises or
the Airport and/or activities conducted in connection with or incidental to this
Lease Agreement, including all such causes of action based on common,
constitutional or statutory law, or based in whole or in part upon the negligent
or intentional acts or omissions of Lessee, its officers, agents employees,
invitees or other persons. Lessee must at all times exercise reasonable
precautions on behalf of, and be solely responsible for, the safety of its
officers, employees, agents, customers, visitors, invitees, licensees and other
persons, as well as their property, while in, on, or involved in any way with
the use of the Leased Premises. The Lessor is not liable or responsible for
the negligence or intentional acts or omissions of the Lessee, its officers,
agents, employees, agents, customers, visitors and other persons. The Lessor
shall assume no responsibility or liability for harm, injury, or any damaging
events which are directly or indirectly attributable to premise defects, whether
real or alleged, which may now exist or which may hereafter arise upon the
Leased Premises, responsibility for all such defects being expressly assumed
by the Lessee. The Lessee agrees that this indemnity provision applies to all
claims, suits, demands, and actions arising from all premise defects or
conditions.
THE TFSqOR- AND THE TFI;SF.F 'EXPERRSTY INTEND THIS
a M TBIS LEASE AGREEMENT M=RF THAT NEGLIGENCE IS A
CONCITERING CAUSE OF THE IN-11TRY, DFATE, OR DAMAGE
ANY CITATM - LOSS, DAMAGE, CAUSE OF AC:TTON SITTT AND
FROM THE SOLE NE(-TY TCIENCE_OF JHF. LESSOR OR ANY C)R-
FAULT DE ANY OTHER PERSON OR ENTITY-
12. Chemicals. Lessee agrees to properly store, collect and dispose of all chemicals
and chemical residues; to properly store, confine, collect and dispose of all
paint, including paint spray in the atmosphere, and paint products; and to
comply with all Local, State and Federal regulations governing the storage,
handling or disposal of such chemicals and paints. Further, the Lessee shall be
solely responsible for all discharges, whether accidental or intentional, of any
chemical and for the costs associated with the cleanup, remediation and
disposal of said chemicals.
13. Hazardoiis Activities. Should Lessee violate any law, rule, restriction or
regulation of the City of Denton or the Federal Aviation Administration, or any
other regulatory authority, or should the Lessee engage in or permit other
NTDenton Leasing AGR.doc- Page 9
persons or agents to engage in activities which could produce hazards or
obstruction to air navigation, obstructions to visibility or interference with any
aircraft navigational aid station or device, whether airborne or on the ground,
then Lessor shall state such violation in writing and deliver written notice to
Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the
Leased Premises who are causing said violation(s), and upon delivery of such
written notice, Lessor shall have the right to demand that the person(s)
responsible for the violation(s) cease and desist from all such activity creating
the violation(s). In such event, Lessor shall have the right to demand that
corrective action, as required, be commenced immediately to restore the Leased
Premises into conformance with the particular law, rule or aeronautical
regulation being violated. Should Lessee, Lessee's agent, or the person(s)
responsible for the violation(s) fail to cease and desist from said violation(s)
and to immediately commence correcting the violation(s), and to complete said
corrections within twenty-four (24) hours following written notification, then
Lessor shall have the right to enter onto the Leased Premises and correct the
violation(s) at the sole cost and expense of Lessee, and Lessor shall not be
responsible for any damages incurred to any improvements on the Leased
Premises as a result of the corrective action process. In addition, such violation
shall be considered a material default by Lessee authorizing Lessor, at its sole
option and discretion, to immediately terminate and cancel this Lease
Agreement.
C. SIGNS. No signs, posters, or other similar devices Signage") shall be placed on
the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport
property without the prior written approval of Lessor. Lessee, at its sole expense, shall be
responsible for the creation, installation and maintenance of all such Signage. Lessee shall
pay to Lessor any and all damages, injuries, or repairs resulting from the installation,
maintenance or repair of any such Signage. Any Signage placed on the Leased Premises
shall be maintained at all times in a safe, neat, sightly and good physical condition. All
signage shall be removed from the Leased Premises by Lessee immediately upon receipt of
instructions for removal of same from Lessor, including without limitation, upon expiration
or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor
may do so at the sole cost and expense of Lessee. Lessee shall be permitted the right to
place two wall signs, no greater than thirty-two square feet each, identifying the commercial
hangar operation. All signage shall comply with all applicable ordinances including the
City of Denton sign ordinance."
D. ENTRY. Lessor and its designees shall have the right to enter the Leased
Premises upon reasonable advance notice (written or oral) and at any reasonable times for
the purposes of inspecting the Leased Premises, performing any work which Lessor elects
to perform under this Lease Agreement, and exhibiting the Leased Premises for sale,
lease, or mortgage. Nothing in this section shall imply any duty upon Lessor to do any
work, which under any other provision of this Lease Agreement Lessee is'required to
perform, and any performance by Lessor shall not constitute a waiver of Lessee's default.
NTDenCon Leasing AGA.doc- Page 1C
VI, COVENANTS BY T,ESSOR
Lessor hereby agrees as follows:
A. ENJOYMENT. PEA CUT IT, Upon on payment of all rent, fees, and performance
of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee
shall peaceably hold and enjoy the Leased Premises and all rights and privileges herein
granted.
B. C METIANCE. Lessor warrants and represents that in the establishment,
construction and operation of the Airport, that Lessor has heretofore and at this time is
complying with all existing rules, regulations, and criteria distributed by the Federal
Aviation Administration, or any other governmental authority relating to and including, but
not limited to, noise abatement, air rights and easements over adjoining and contiguous
areas, over-flight in landing or takeoff, to the end that Lessee will not be legally liable for
any action of trespass or similar cause of action by virtue of any aerial operations of
adjoining property in the course of normal take-off and landing procedures from the
Airport; Lessor further warrants and represents that at all times during the Lease Term, or
any renewal or extension of same, that it will continue to comply with the foregoing.
VII. SPECIAL CONDTIMNS
It is expressly understood and agreed by and between Lessor and Lessee that this
Lease Agreement is subject to the following special terms and conditions.
RT TN MAYS AND TAXIWAYS. Because of the present thirty thousand (30,000)
pound continuous use weight bearing capacity of the taxiway, Lessee herein agrees to limit
all aeronautical activity including landing, take-off and taxiing, to aircraft having an actual
weight, including the weight of its fuel, of thirty thousand (30,000) pounds or less, until
such time that the runway and designated taxiways on the Airport have been improved to
handle aircraft of such excessive weights. It is further agreed that, based on qualified
engineering studies, the weight restrictions and provisions of this clause may be adjusted, up
or down, and that Lessee agrees to abide by any such changes or revisions as such studies
may dictate. "Aeronautical activity" referred to in this clause shall include any activity of
the Lessee or its agents or subcontractors, and its customers and invitees, but shall not
include those activities over which it has no solicitory part or control, such as an unsolicited
or unscheduled or emergency landing. A pattern of violating the provisions of this section
on two or more occasions shall be sufficient to cause the immediate termination of this
entire Lease Agreement and subject Lessee to liability for any damages to the Airport that
might result.
NTDenton Leasing AGR.doc- Page 11
VIII T F A sEHOT D TM PR OVEN FLATS
A. EFOT TfREMF.NT Before commencing the construction of any improvements
on the Leased Premises including Lessee's Improvements (the "Lease Improvements"),
Lessee shall submit:
1. Documentation, specifications, or design work, to be approved by the Lessor,
which shall establish that the improvements to be built or constructed upon the
Leased Premises are in conformance with the overall size, shape, color, quality
and design, in appearance and structure of the program established by Lessor
on the Airport.
2. All plans and specifications showing the location upon the Leased Premises of
the proposed construction and improvements;
3. The estimated cost of such construction.
No construction may commence until Lessor has approved the plans and
specifications and the location of the Lease Improvements, and the estimated costs of such
construction. Approval by the Lessor shall not be unreasonably withheld. Documentary
evidence of the actual cost of construction on public areas only (such as taxiways) shall be
delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by
Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy
of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he
shall have found to have been paid by Lessee, and the findings of the City Manager when
endorsed by him upon said contract shall be conclusive upon all parties for all purposes of
this Lease Agreement.
No later than 30 days after completion of the Lease Improvements, Lessee shall
submit to Lessor detailed as built plans of the Lease Improvements and documentary
evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements
("Cost to Construct Lease Improvements").
B. ADDULCLNAL CONSTRUCTTON OR : Lessee is hereby
authorized to construct upon the Leased Premises, at its own cost and expense, buildings,
hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in
connection with the operations authorized by this Lease Agreement, provided however,
Lessee shall comply with all of the requirements of Section VIII.A., above. Such additional
improvements shall be a part of the Lease Improvements.
C. OWNTER SHIP OF IMRR : Except as otherwise provided in this
Lease Agreement, the Lease Improvements constructed upon the Leased Premises by
Lessee shall remain the property of Lessee during the Lease Term subject to the following
conditions, terms and provisions:
1. Removal of 171iiii No building or permanent fixture may be removed
NTDenton Leasing AGR.doc- Page 12
from the Leased Premises.
2. Assam to iin. The Lease Improvements shall automatically become the
property of Lessor absolutely free, without any cost to Lessor, at the end of the
Lease Term, or any extension thereof.
3 The Lease
Improvements shall immediately become the property of Lessor at no cost,
expense, or compensation to Lessee should Lessee fail to commence or
complete the Lessee's hmprovements within the Commencement Period or
Construction Period as provided in Section E.D. of this Lease Agreement.
4. Cancellation or . Should this Lease Agreement be canceled or
terminated before the end of the Lease Term, or extension thereof, Lessor shall
have the right to purchase all of the Lease Improvements. In the event of a
cancellation or termination, other then due to a default by Lessee that has not
been cured as provided below, the purchase price shall be equal to the most
recent value of the Lease Improvements as determined by the Denton County
Central Appraisal District ("Value of the Lease Improvements") reduced by
1130 for each year of the Lease Term that has expired as of the date of
termination (the "Purchase Price"). Should the Denton County Central
Appraisal District not determine a separate value for the Lease Improvements,
or should such separate valuation be older than two years, then the Purchase
Price will be determined taking the Cost to Construct the Lease Improvements
reduced by 1130 for each year the Lease Term has expired as of the date of
termination. If the termination or cancellation is due to a default by Lessee that
has not been cured within 30 days after written notice of default to Lessee,
then the Purchase Price as determined above shall be reduced by 50%.
However, if Lessee provides written notice to Lessor within said 30 day cure
period that it is impossible to cure such default within said time period, then
the Lessor may consent to an extension of such time to cure, which consent
will not be unreasonably withheld.
IX. STTRROGATION O E MORTGAGFE_
Any person, corporation or institution that lends money to Lessee for construction
of any hangar, structure, building or improvement and retains a security interest in said
hangar, structure, building or improvement shall, upon default of Lessee's obligations to
said mortgagee, have the right to enter upon the Leased Premises and operate or manage
said hangar, structure, building or improvement according to the terms of this Lease
Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the
loan is paid in full, whichever comes first, but in no event longer than the Lease Term. It
is expressly understood and agreed- that the right of the mortgagee referred to herein is
limited and restricted to those improvements constructed with funds borrowed from
mortgagee, those improvements purchased with the borrowed funds, and those
improvements pledged to secure the refinancing of the improvements.
NTDenton Leasing AGR.doc- Page 13
X. RTCTNT OF FASFMFNT
Lessor shall have the right to establish easements, at no cost to Lessee, upon the
Leased Premises for the purpose of providing underground utility services to, from or
across the Airport property or for the construction of public facilities on the Airport.
However, any such easements shall not interfere with Lessee's use of the Leased Premises
and Lessor shall restore the property to the original condition as is reasonable practicable
upon the installation of any utility services on, in, over or under any such easement at the
conclusion of such construction. Construction in or at the easement shall be completed
within a reasonable time.
XI. A 9,SIGNMF.NT C)F T EASE
Lessee expressly covenants that it will not assign this Lease Agreement, convey more
than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise,
transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose,
except for rental of hangar space or tie-down space for storage of aircraft only, without the
written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval
of such sale, sublease, transfer, license, or assignment of the facilities for Airport related
purposes; provided however, that no such assignment, sublease, transfer, license, sale or
otherwise shall be approved if the rental, fees or payments, received or charged are in excess
of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion
of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or
otherwise. The provisions of this Lease Agreement shall remain binding upon the
assignees, if any, of Lessee.
XII. TNST TRANCE
A. RFOITRED TWTRANCE: Regardless of the activities contemplated under this
Lease Agreement, Lessee shall maintain continuously in effect at all times during the term
of this agreement, at Lessee's sole expense, the following minimum insurance coverages:
1. Commercial (Public) General Liability covering the Lessee or its company, its
employees, agents, tenants and independent contractors, and its operations on the
airport. Coverage shall be in an amount not less than $1,000,000 per occurrence
and provide coverage for premises/operations and contractual liability AND where
exposure exists, coverage for: products/completed operations; explosion, collapse
and underground property damage.
2. All risk property insurance on a replacement cost basis covering loss or damage to
all facilities used by the Lessee, either as a part of this agreement or erected by the
Lessee subsequent to this agreement. Under no circumstances shall the Lessor be
liable for any damages to fixtures, merchandise or other personal property of the
Lessee or its tenants.
NTDenton Leasing AGR.doc- Page 14
3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non-
Owned Autos and Hired Cars:
For operation in aircraft movement areas the limit of liability shall be $100,000
per occurrence.
For other operations the limit of liability shall be consistent with the amount set
by State Law.
B. COVERAGES: In addition to the above referenced coverages, the
following insurance is required if the activity or exposure exists or is contemplated:
1. Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public)
General Liability shall include coverage or separate coverage shall be provided for
Environmental Impairment Liability.
2. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat) shall
be provided.
3. Aircraft Rental or Flight Training - Aircraft Liability in the amount of $1,000,000
per occurrence to include Hull Coverage and Liability, Passenger Liability in the
amount of $100,000 per person (per passenger seat) and Student/Renter Liability
covering all users in the amount of $500,000 per occurrence.
4. Specialized Commercial Flying (including crop dusting, seeding, and spraying,
banner towing and aerial advertising, aerial photography and surveying, fire
fighting, power line or pipe line patrol) - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat) shall
be provided.
5. Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Hanger Keepers Liability in the amount of $500,000 per occurrence shall be
provided.
The requirement for Hangar Keepers Liability shall not apply to individual
owner/operators whose primary use of the hangar space is the storage of their
own aircraft. The requirement does not apply to such individuals
notwithstanding the fact that they may, from time to time, permit the storage of
non-owned aircraft in the hangar space and charge a fee for the storage of such
aircraft so long as such use is in the nature of a rent-sharing agreement rather
than a commercial aircraft storage business.
NTDenton Leasing AGR.doc-- Page 15
C. C OVF,RACIE REQIIIEFM=S: All insurance coverages shall comply with the
following requirements:,
1. All liability policies shall name the City of Denton, and its officers and employees
as an additional named insured and provide for a minimum of 30 days written
notice to the City of any cancellation or material change to the policy.
2. All insurance required by this Lease Agreement must be issued by a company or
companies of sound and adequate financial responsibility and authorized to do
business in the State of Texas. All policies are subject to the examination and
approval of the City's office of Risk Management for their adequacy as to content,
form of protection and providing company.
3. Required insurance naming the City as an additional insured must be primary
insurance and not contributing with any other insurance available to the City
whether from a third party liability policy or other. Said limits of insurance shall in
no way limit the liability of the Lessee hereunder.
4. The Lessor shall be provided with a copy of all such policies and renewal
certificates. Failure of Lessee to comply with the minimum specified amounts or
types of insurance as required by Lessor shall constitute Lessee's default of this
Lease Agreement.
5. During the Lease Term, or any extension thereof, Lessor herein reserves the right
to, with 60 days notice, adjust or increase the liability insurance amounts required
of the Lessee, and to require any additional rider, provisions, or certificates of
insurance, and Lessee hereby agrees to provide any such insurance requirements as
may be required by Lessor; provided however, that any requirements shall be
commensurate with insurance requirements at other public use airports similar to
the Denton Municipal Airport in size and in scope of aviation activities, located in
the southwestern region of the United States.
XIII. CANCEI.I.ATTON RY TYSSOR
In the event that Lessee shall file a voluntary petition in bankruptcy or
proceedings in bankruptcy shall be instituted against it and Lessee thereafter is
adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of
Lessee and its assets pursuant to proceedings brought under the provisions of any Federal
reorganization act, or Lessee shall be divested of its estate herein by other operation of
law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or
conditions herein contained, or on its part to be performed, the Lessor may give Lessee
written notice to correct such condition or cure such default and, if any condition or
default shall continue for thirty (30) days after the receipt of such notice by Lessee, then
WDenton Leasing AGR.doc- Page 16
Lessor may terminate this Lease Agreement by written notice to Lessee. However, if
Lessee provides written notice to Lessor within said 30 day cure period that it is impossible
to cure such default within said time period, then the Lessor may consent to an extension of
such time to cure, which consent will not be unreasonably withheld. In the event of default,
Lessor has the right to purchase any or all of the Lease Improvements under the
provisions of Section VIR.C.4. hereof.
XIV. CANCET.T.ATIONI3YLESSFE
Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of
its obligations hereunder at any time, by thirty (30) days written notice, upon or after the
happening of any one of the following events: (1) issuance by any court of competent juris-
diction of a permanent injunction in any way preventing or restraining the use of the Airport
or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or
agreements contained herein and the failure of Lessor to remedy such breach for a period of
ninety (90) days after receipt of a written notice of the existence of such breach; (3) the
inability of Lessee to use the Lease Premises and facilities continuing for a longer period
than ninety (90) days due to any law or any order, rule or regulation of any appropriate
governmental authority having jurisdiction over the operations of Lessor or due to war,
earthquake or other casualty; or (4) the assumption or recapture by the United States
Government, or any authorized agency thereof, of the maintenance and operation of said
airport and facilities or any substantial part or parts thereof.
Upon the happening of any of the four events listed in the preceding paragraph, such
that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel
this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its
terms, except, however, that the use of the Leased Premises shall not be limited to aviation
purposes, their use being only limited by such laws and ordinances as may be applicable at
that time.
Should Lessor close the Airport and relocate the Airport to another location during the
primary term of this Lease Agreement, Lessee shall have the right to relocate its facilities to
the new airport at a suitable location under the same or similar terms of this Lease
Agreement. The cost of relocation of Lessee's facilities will be shared by Lessor and Lessee
in proportion to the number of years remaining on the primary term of this Lease
Agreement. In this regard Lessor will be responsible for 1130 of the such costs for every
year remaining on the primary term.
XV. MISCFT.I.ANFCITTS PRCIVISIONS
A. ENTIRE AGRF,EMENT. This Lease Agreement constitutes the entire
understanding between the parties and as of its Effective Date supersedes all prior or
independent Agreements between the parties covering the subject matter hereof. Any
change or modification hereof shall be in writing signed by both parties.
NTDenton Leasing AGR.doc- Page 17
B. BWDR {r FFFFC"T. All covenants, stipulations and agreements herein shall
extend to, bind and inure to the benefit of the legal representatives, successors and assigns
of the respective parties hereto.
C. SFVFR . If a provision hereof shall be finally declared void or illegal by
any court or administrative agency having jurisdiction, the entire Lease Agreement shall not
be void; but the remaining provisions shall continue in effect as nearly as possible in
accordance with the original intent of the parties.
D. NOTICE. Any notice given by one party to the other in connection with this
Lease Agreement shall be in writing and shall be sent by certified mail, return receipt
requested, with postage fees prepaid or via facsimile as follows:
1. If to Lessor, addressed to:
City Manager
City of Denton
215 E. McKinney Street
Denton, Texas 76201
Fax No.940.349.8596
2. If to Lessee, addressed to:
Chuck Jones, CEO
NTDenton Leasing Incorporated
PO Box 596
Krum, TX 76249
Fax No.: 940-458-4559
E. HEADINGS. The headings used in this. Lease Agreement are intended for
convenience of reference only and do not define or limit the scope or meaning of any
provision of this Agreement.
F. GOVERNECTLAW AND VENT . This Lease Agreement is to be construed in
accordance with the laws of the State of Texas and is fully performable in Denton County,
Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease
Agreement shall be a court of competent jurisdiction in Denton County, Texas.
G. NO WAIVER. No waiver by Lessor or Lessee of any default or breach of
covenant or term of this Lease Agreement may be treated as a waiver of any subsequent
default or breach of the same or any other covenant or term of this Lease Agreement.
H. NO AGENCY. During all times that this Lease Agreement is in effect, the parties
agree that Lessee is and shall not be deemed an agent or employee of the Lessor.
NTDenton Leasing AGR.doc- Page 16
I. FOR(-'.F. MA.TFTTRF. None of the Parties shall be in default or otherwise liable for
any delay in or failure of performance under this Lease Agreement if such delay or failure
arises by any reason beyond their reasonable control, including any act of God, any acts of
the common enemy or terrorism, the elements, earthquakes, floods, fires, epidemics, riots,
failures or delay in transportation or communications. However, lack of funds shall not be
deemed to be a reason beyond a Party's reasonable control. The Parties will promptly inform
and consult with each other as to any of the above causes, which in their judgment may or
could be the cause of a delay in the performance of this Lease Agreement.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the
Effective Date first above written.
CITY OF DENTON, TEXAS, LESSOR
BY:
MICHAEL A. CONDUFF, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIlVI CITY ATTORNEY
BY:
NTDENTON LEASING INC.
BY: c
CHUCK JONLt
CHIEF EXECUTIVE OFFICER
NTAenton Leasing AGR.doc- Page 19
ACKNOWLEDGMENTS
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of 2005, by
Michael A. Conduff, City Manager of the City of Denton, Texas, on behalf of said
municipality.
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on them day of 2005 by
Chuck Jones, Chief Executive Officer, NTDenton Leasing Inc., on ehalf of said
corporation.
QIIQ'~LL 4-M.'X (j1Mjeja4-j'
NOTARY PUBLIC, ST TE OF TEXAS
NTDenton Leasing AGR.doc- Page 20
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AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Utility Administration
ACM: Howard Martin, Utilities 349-8232
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas authorizing the City
Manager to execute a professional services agreement with United States Right of Way
Acquisition Company, Inc., for professional services pertaining to acquisition of right-of-
way real property for the City regarding the Construction of the Clear Creek Interceptor
sewer line; authorizing the expenditure of funds therefore; and providing an effective
date. (The Public Utilities Board recommends approval by a vote of 3-0.)
BACKGROUND
To provide wastewater service in the Clear/Milam Creek Basins, the PUB had
recommended and the City Council had authorized in August 2002, to proceed with the
design of the Clear Creek interceptor sewer line and the wastewater treatment plant (see
Exhibit 1). The sewer line and the treatment plant design were complete (approximately
85 percent) when the projects were put on hold. The plant effluent discharge permit work
with Texas Commission on Environmental Quality (TCEQ), however, continued. TCEQ
has already issued a final draft permit. To issue the final permit TCEQ required an
archeological survey of the plant site. The archeological survey has been completed and
submitted to Texas Historical Commission and TCEQ on June 1, 2005. No artifacts of
historical significance were found on the plant property. It is estimated that TCEQ will
release the final permit within three months.
Recently, the Clear Creek Ranch property was purchased by a development group and
they approached staff regarding renewing the wastewater projects in the Clear
Creek/Milam Creek Basin. Staff had presented to the PUB four options for wastewater
service in the basin on February 14, 2005. The recommended option was to construct the
interceptor sewer line up to Stuart Road and a temporary lift station to convey wastewater
to the existing wastewater collection system south of Loop 288.
To proceed with construction of the interceptor sewer line and the temporary lift station
in the near future, easement acquisition is required. City right of way staff is busy
working on securing easements for the Loop 288 project. So it is necessary to engage the
services of an outside firm for easement negotiation and purchase. It will be prudent to
acquire easements for the entire length of the interceptor sewer line up to the wastewater
treatment plant when the easement negotiations commence. Since the property appraisal
was accomplished during the design phase, it is prudent to use that appraisal data now
and acquire the easements for the entire interceptor sewer line.
United States Right of Way Acquisition Company, Inc. in Lewisville has submitted a
proposal to acquire 12 easements that will include the entire length of the interceptor line,
1
the temporary lift station and the force main to Loop 288. The fee for each parcel is
$2,450 for a total fee of $29,400 (see Exhibit 2). Staff has reviewed the acquisition cost
per parcel and finds it acceptable.
OPTIONS
1. Approve the proposal from United States Right of Way Acquisition Company, Inc.
2. Reject the proposal from United States Right of Way Acquisition Company, Inc.
RECOMMENDATIONS
Staff recommends approval of the proposal from United States Right of Way Acquisition
Company, Inc.
ESTIMATED SCHEDULE OF PROJECT
The consultant proposes to complete the project in 70 days.
PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMM.)
PUB: August 19, 2002, City Council: September 3, 2002 - Approved the staff
recommendation to design a conventional plant in the Clear Creek Basin.
PUB: October 21, 2002, City Council: November 5, 2002 - Approved the Professional
Services Agreements for the design of Clear Creek Interceptor Sewer and Water
Reclamation Plant.
PUB: December 13, 2004 - Update on status of Clear Creek Interceptor Sewer and Water
Reclamation Plant. Information only.
PUB: February 14, 2005 - The PUB recommended the option for wastewater service in
the Clear/Milam Creek Basin.
PUB: June 13, 2005 - The PUB recommended approval by a vote of 3 to 0.
FISCAL INFORMATION
The professional services agreement fees will be paid from existing bond funds.
DATE SCHEDULED FOR COUNCIL APPROVAL
The City Council will consider this item on June 21, 2005.
EXHIBITS
1. Map
2. Ordinance
3. Professional Services Agreement & Consultant Cost Proposal
Respectfully submitted:
Jim Coulter
Director of Water Utilities
Prepared by:
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P. S. Arora, P.E
Assistant Director of Wastewater Utilities
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ORDINANCE NO. 2005-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH UNITED
STATES RIGHT OF WAY ACQUISITION COMPANY, INC., FOR PROFESSIONAL
SERVICES PERTAINING TO ACQUISITION OF RIGHT-OF-WAY REAL PROPERTY FOR
THE CITY REGARDING THE CONSTRUCTION OF THE CLEAR CREEK INTERCEPTOR
SEWER LINE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it to be in the public interest to engage the United
States Right of Way Acquisition Company, Inc., a Corporation, with offices in Lewisville, Texas
("USROW"), to provide professional consulting services to the City, pertaining to acquisition of
right-of-way real property for the City regarding the construction of the Clear Creek Interceptor
Sewer Line; and
WHEREAS, the City staff has reported to the City Council that there is a substantial need
for the above-described professional consulting 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, the City Council has provided in the City Budget for the appropriation of
funds to be used for the purchase of the professional consulting 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 United State Right of Way Acquisition Company, Inc., a Corporation,
of Lewisville, Texas office, for professional consulting services pertaining to acquisition of right-
of-way real property for the City regarding the construction of the Clear Creek Interceptor Sewer
Line; in substantially the form of the Professional Services Agreement attached hereto and
incorporated herewith by reference.
SECTION 2: That the award of this Agreement by the City is on the basis of the
demonstrated competence, knowledge, and qualifications of USROW and the ability of USROW
to perform the 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.
I EXHIBIT 2
SECTION 4: That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the day of 52005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
B
Y:
SAOur Documents\Ordinances1051USROW-PSA-2005-Clear Creek.doc
2
STATE OF TEXAS §
COUNTY OF DENTON §
PROFESSIONAL SERVICES AGREEMENT
FOR RIGHT OF WAY SERVICES
RELATING TO THE CLEAR CREEK INTERCEPTOR
SEWER LINE PROJECT
THIS AGREEMENT is made and entered into as of the day of
2005, by and between the City of Denton, Texas, a Texas municipal
corporation, with its principal office at 215 East McKinney Street, Denton, Texas 76201,
hereinafter called "OWNER"; and United States Right-of-Way Acquisition Company, Inc., a
Corporation, with its offices at 1454 Javelin Way, Lewisville, Texas 75077, hereinafter called
"CONSULTANT"; the OWNER and CONSULTANT are acting herein, by and through their
duly-authorized officials and representatives.
WITNESSETH, that in consideration of the covenants and agreements herein contained,
the parties hereto do mutually AGREE as follows:
ARTICLE I
EMPLOYMENT OF CONSULTANT
The OWNER hereby contracts with the CONSULTANT, as an independent contractor;
and the CONSULTANT hereby agrees to perform the services herein in connection with the
Project as stated in the sections to follow, with diligence and in accordance with the professional
standards customarily obtained for such services in the State of Texas. The professional services
set out herein are in connection with the following described project (hereinafter referred to as
the "Project"):
The project shall include without limitation, right-of-way acquisition services that are
necessary, as described in Exhibit "A" attached hereto, to assist the OWNER in acquiring
right-of-way for the Clear Creek Interceptor Project, within the City of Denton, and
within unincorporated Denton County, Texas ("Project").
ARTICLE II
SCOPE OF SERVICES
The CONSULTANT shall perform the following services in a professional manner:
A. The CONSULTANT shall perform all those Basic Services as necessary, and as
described in the CONSULTANT'S "Pricing and Fees," which is attached hereto and
incorporated herewith by reference as Exhibit "A".
B. If there is any conflict between the terms of this Agreement and the Exhibit attached to
this Agreement, the terms and conditions of this Agreement will control over the terms
and conditions of the attached Exhibit.
1
ARTICLE III
ADDITIONAL SERVICES
Additional services to be performed by the CONSULTANT, if authorized by the
OWNER in writing, which are not included in the above-described Basic Services, are described
as follows:
A. Assisting OWNER or contractor in the defense or prosecution of litigation in connection
with or in addition to those services contemplated by this Agreement. Such services, if
any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective
parties outside of and in addition to this Agreement.
B. Any additional services not included in Basic Services.
ARTICLE IV
PERIOD OF SERVICE
This Agreement shall become effective upon execution of this Agreement by the
OWNER and the CONSULTANT and upon the issuance of a notice to proceed by the OWNER,
and shall remain in force for the period, which may reasonably be required for the completion of
the Project, including Additional Services, if any, and any required extensions approved by the
OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof.
Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts
to complete the services set forth herein as expeditiously as possible and to meet the schedule
established by the OWNER, acting through its City Manager or his designee.
ARTICLE V
COMPENSATION
A. COMPENSATION TERMS:
1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in
employment of others in outside firms for services.
2. "Direct Non-Labor Expense" is defined as that expense for any assignment
incurred by the CONSULTANT for supplies, transportation, travel,
communications, subsistence, and lodging away from home, and similar
incidental expenses in connection with that assignment.
B. BILLING AND PAYMENT: For and in consideration of the professional services to be
performed by the CONSULTANT herein, the OWNER agrees to pay a total fee,
including reimbursement for direct non-labor expenses, not to exceed Twenty Nine
Thousand Four Hundred and No/ 100 Dollars ($29,400).
Partial payments to the CONSULTANT will be made on the basis of detailed monthly
statements rendered to and approved by the OWNER through its City Manager or his
designee; however, under no circumstances shall any monthly statement for services
2
exceed the value of the work performed at the time a statement is rendered. The
OWNER may withhold the final five percent (5%) of the contract amount until
satisfactory completion of the Project.
Nothing contained in this Article shall require the OWNER to pay for any work which is
unsatisfactory, as reasonably determined by the City Manager or his designee, or which is
not submitted in compliance with the terms of this Agreement. The OWNER shall not be
required to make any payments to the CONSULTANT when the CONSULTANT is in
default under this Agreement.
It is specifically understood and agreed that the CONSULTANT shall not be authorized
to undertake any work pursuant to this Agreement which would require additional
payments by the OWNER for any charge, expense, or reimbursement above the
maximum not to exceed fee as stated, without first having obtained written authorization
from the OWNER. The CONSULTANT shall not proceed to perform the services listed
in Article III "Additional Services," without obtaining prior written authorization from
the OWNER.
C. ADDITIONAL SERVICES: For additional services authorized in writing by the
OWNER in Article III hereinabove, the CONSULTANT, as stipulated in
CONSULTANT'S "Pricing and Fees" to the OWNER, attached hereto and incorporated
herewith by reference as Exhibit "A", shall submit invoices for additional services and
such invoices shall be due and payable upon submission by the CONSULTANT with
CONSULTANT's regular monthly statement as provided for hereinabove. Statements
shall not be submitted more frequently than monthly.
D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for
services and expenses within thirty (30) days after receipt of the CONSULTANT's
undisputed statement thereof, the amounts due the CONSULTANT will be increased by
the rate of one percent (I%) per month, from and after the said thirtieth (30th) day, and, in
addition, the CONSULTANT may, after giving seven (7) days written notice to the
OWNER, suspend services under this Agreement until the CONSULTANT has been paid
in full all amounts due for services, expenses, and charges, provided, however, nothing
herein shall require the OWNER to pay the late charge of one percent (1%) set forth
herein if the OWNER reasonably determines that the work is unsatisfactory, in
accordance with this Article V, "Compensation."
ARTICLE VI
OBSERVATION AND REVIEW OF THE WORK
The CONSULTANT will exercise reasonable care and due diligence in discovering and
promptly reporting to the OWNER any defects or deficiencies in the work of the
CONSULTANT or any subcontractors or subconsultants.
3
ARTICLE VII
OWNERSHIP OF DOCUMENTS
All documents prepared or furnished by the CONSULTANT (and CONSULTANT's
subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and
shall become the property of the OWNER upon the termination of this Agreement. The
CONSULTANT is entitled to retain copies of all such documents. The documents prepared and
furnished by the CONSULTANT are intended only to be applicable to this Project, and
OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense.
In the event the OWNER uses any of the information or materials developed pursuant to this
Agreement in another project or for other purposes than specified herein, CONSULTANT is
released from any and all liability relating to their use in that project.
ARTICLE VIII
INDEPENDENT CONTRACTOR
CONSULTANT shall provide services to OWNER as an independent contractor, not as
an employee of the OWNER. CONSULTANT shall not have or claim any right arising from
employee status.
ARTICLE IX
INDEMNITY AGREEMENT
The CONSULTANT shall indemnify and save and hold harmless the OWNER and its
officials, officers, agents, 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 OWNER, and including, without limitation, damages for bodily and
personal injury, death and property damage, resulting from the negligent acts or omissions of the
CONSULTANT or its officers, agents, employees, subcontractors and subconsultants, 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 X
INSURANCE
During the performance of the services under this Agreement, CONSULTANT shall
maintain the following insurance with an insurance company licensed to do business in the State
of Texas by the State Insurance Commission or any successor agency, that has a rating with A.
M. Best Rate Carriers of at least an "A-" or above:
A. Comprehensive General Liability Insurance with bodily injury limits of not less than
$500,000 for each occurrence and not less than $500,000 in the aggregate, and with
4
property damage limits of not less than $100,000 for each occurrence and not less than
$100,000 in the aggregate.
B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for
each person and not less than $500,000 for each accident, and with property damage
limits of not less than $100,000 for each accident.
C. The CONSULTANT shall furnish insurance certificates or insurance policies at the
OWNER's request to evidence such coverages. The insurance policies shall name the
OWNER as an additional insured on all such policies to the extent possible, and shall
contain a provision that such insurance shall not be cancelled or modified without thirty-
(30) days prior written notice to OWNER and CONSULTANT. In such event, the
CONSULTANT shall, prior to the effective date of the change or cancellation, deliver to
OWNER substitute policies or certificates furnishing the same coverage.
ARTICLE XI
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree to settle any disputes under this Agreement by submitting the
dispute to arbitration or other means of alternate dispute resolution, such as mediation. No
arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving
one party's disagreement, may include the other party to the disagreement without the other's
approval.
ARTICLE XII
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either party may terminate by
giving thirty-(30) days' advance written notice to the other party.
B. This Agreement may be terminated in whole or in part in the event of either party
substantially failing to fulfill its obligations under this Agreement. No such termination
will be affected 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 non-performance, and not less than thirty (30) calendar days to cure the
failure; and (2) an opportunity for consultation with the terminating party prior to
termination.
C. If the Agreement is terminated prior to completion of the services to be provided
hereunder, CONSULTANT shall immediately cease all services and shall render a final
bill for services to the OWNER within thirty-(30) days after the date of termination. The
OWNER shall pay CONSULTANT 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 V "Compensation." Should the OWNER
subsequently contract with a new consultant for the continuation of services on the
Project, CONSULTANT shall cooperate in providing information. The CONSULTANT
shall turn over all documents prepared or furnished by CONSULTANT pursuant to this
5
Agreement to the OWNER on or before the date of termination, but may maintain copies
of such documents for its own use.
ARTICLE XIII
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval by the OWNER shall not constitute, nor be deemed a release of the
responsibility and liability of the CONSULTANT, its employees, associates, agents,
subcontractors, and subconsultants for the accuracy and competency of their work; nor shall such
approval be deemed to be an assumption of such responsibility by the OWNER for any defect in
the work prepared by the CONSULTANT, its employees, associates, agents, subcontractors and
subconsultants.
ARTICLE XIV
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 addresses shown below, certified mail, return receipt requested, unless
otherwise specified herein:
To CONSULTANT: To OWNER:
Diane Burkhardt Paul Williamson
United States Right-o- Way Company, Inc. Real Estate & Capital Support Manager
1454 Javelin Way City of Denton, Texas
Lewisville, Texas 75077 601 East Hickory Street, Suite B,
Denton, Texas 76205
All notices shall be deemed effective upon receipt by the party to whom such notice is
given, or within three (3) days after the date of mailing.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement, consisting of nine (9) pages and one (1) 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 all prior contemporaneous
offers, promises, representations, negotiations, discussions, communications, understandings,
and agreements which may have been made in connection with the subject matter of this
Agreement.
ARTICLE XVI
SEVERABILITY
If any provision of this Agreement is found or deemed by a court of competent
jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of
this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event,
6
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.
ARTICLE XVII
COMPLIANCE WITH LAWS
The CONSULTANT shall comply with all federal, state, and local laws, rules,
regulations, and ordinances applicable to the work covered hereunder as they may now read or
hereinafter be amended.
ARTICLE XVIII
DISCRIMINATION PROHIBITED
In performing the services required hereunder, the CONSULTANT shall not discriminate
against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or
physical handicap.
ARTICLE XIX
PERSONNEL
A. The CONSULTANT represents that it has or will secure, at its own expense, all
personnel required to perform all the services required under this Agreement. Such
personnel shall not be employees or officers of, nor have any contractual relations with
the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or
potential conflict of interest that may arise during the term of this Agreement.
B. All services required hereunder will be performed by the CONSULTANT or under its
supervision. All personnel engaged in work shall be qualified, and shall be authorized
and permitted under state and local laws to perform such services.
ARTICLE XX
ASSIGNABILITY
The CONSULTANT shall not assign any interest in this Agreement, and shall not
transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without
the prior written consent of the OWNER.
ARTICLE XXI
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be offered or received in evidence
in any proceeding arising between the parties hereto out of or affecting this Agreement, or the
rights or obligations of the parties hereunder, and unless such waiver or modification is in
writing and duly executed by the parties. The parties further agree that the provisions of this
Article will not be waived unless as set forth herein.
7
ARTICLE XXII
MISCELLANEOUS
A. The following Exhibit is attached to, incorporated herewith by reference, and made a part
of this Agreement:
Exhibit A: Pricing and Fees from CONSULTANT to OWNER.
B. CONSULTANT agrees that OWNER 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 the CONSULTANT
involving transactions relating to this Agreement. CONSULTANT agrees that OWNER
shall have access during normal working hours to all necessary CONSULTANT facilities
and shall be provided adequate and appropriate working space in order to conduct audits
in compliance with this section. OWNER shall give CONSULTANT reasonable advance
notice of intended audits.
C. 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.
D. For the purpose of this Agreement, the key persons who will perform most of the work
hereunder shall be Karen Gnuse and Diane Burkhardt. However, nothing herein shall
limit CONSULTANT from using other qualified and competent members of its firm to
perform the services required herein.
E. CONSULTANT shall commence, carry on, and complete any and all projects with all
applicable dispatch, in a sound, economical, and efficient manner and in accordance with
the provisions hereof. In accomplishing the projects, CONSULTANT shall take such
steps as are appropriate to ensure that the work involved is properly coordinated with
related work being carried on by the OWNER.
F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's
disposal all available information pertinent to the Project, including previous reports, any
other data relative to the Project, and arranging for the access thereto, and make all
provisions for the CONSULTANT to enter in or upon public and private property as
required for the CONSULTANT to perform services under this Agreement.
G. The captions of this Agreement are for informational purposes only, and shall not in any
way affect the substantive terms or conditions of this Agreement.
IN WITNESS HEREOF, OWNER and CONSULTANT have hereby executed this
Agreement in four (4) original counterparts; the OWNER acting by and through its duly-
authorized City Manager; and the ONSULTANT ac ' g by and through its duly-authorized,
undersigned officer, on this the / day of 2005.
8
J
"OWNER"
CITY OF DENTON, TEXAS
A Municipal Corporation
By:
Michael A. Conduff, City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, ACTING CITY ATTORNEY
J n ,r fin. '1
By:
"CONSULTANT"
UNITED STATES RIGHT-OF-WAY
ACQUISITION COMPANY, INC.
A Corporation
By:
Burkhardt
Its:
ATTEST:
S:1Our DocumentslContracts1051U5ROW Clear Creek-PSA-2005.doc
9
United States SOW Acquisition Co.
1454 Javelin Way Lei is=iille, Texas 75077
Phone:`972 90,.'"- (.,9 rax' 02-966-2819
EXHIBIT A
PRICING AND FEES
Clear Creek Sewer line Project
ROW Acquisition
Permanent Easement Acquisition
U.S.ROW To oseS to erform the followin ri ht of wa services:
File set up
Title Commitment (outsource)
Negotiate Easement Acquisition
Lien Releases
Closing at Title Company
Support for condemnation through commissioners hearing
Turn in Original file to City
Maintain file copy for 5 years
Price per Parcel for Acquisition - $2450.00
12 Parcels
U.S. Right of Way Fees: $29,400.00
Fee for additional services not listed ........................$75.00 Per Hour
Billing will be done on milestones once every 30 days before the 5'h of the following month as follows.
File Set Up & title $550
Offer $1000
Deed Signed or Final Offer $450
File Turned in $450
Timeline UPON RECEIPT OF APPRAISALS:
Negotiations 60 Days
Final Offer 10 Days
Turn to City Attorney to File Condemnation 0~ Days
70 Days
submitted: 411LIA 11
Diane i.: l3tsrldiardt, Presiden, t!:5, RMV
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Electric Utility
ACM: Howard Martin, 349-8232 IkIf-1"
SUBJECT
Consider adoption of 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-D; providing for continued support
and assistance to Denton Municipal Electric Staff in addressing issues associated with the Texas
Nodal Team Process to implement a Nodal Market Redesign in the Texas Electric Market;
authorizing the expenditure of funds therefor; and providing an effective date.(The Public
Utilities Board recommends approval by a vote of 3-0.)
BACKGROUND
The Texas Legislature mandated a Texas wholesale electric market in which any generation
resource can sell any amount of energy it desires to any load within Texas, regardless of the
ability of the existing electric transmission system to handle the resulting energy flows on that
transmission system. This inevitably results in periods during which specific transmission lines
are loaded beyond their capacity to safety transport the energy, a condition referred to as
transmission congestion. When this occurs, ERCOT is tasked by the PUC with identifying new
transmission projects that need to be constructed to relieve the congestion and local
Transmission/Distribution Service Providers (TDSPs) are required to build the identified projects
and recover those costs through filing with the PUC for a Transmission Cost of Service (TCOS)
rate that is uplifted to all customers in ERCOT through a uniform charge assessed on all TDSPs
in ERCOT on a load ratio share. The TDSPs in turn pass these costs to customers through their
wire use charges.
There are three major flaws in this system. The first is that generators no longer have any
incentive to build new facilities in locations where adequate transmission to support their project
already exists because they do not have to pay for the cost of transmission upgrades caused by
their project. Left unchecked, this process will ultimately result in Texas electric customers
paying for an extremely expensive transmission system, raising the overall cost of electric energy
in the state. The second is that completion of new transmission projects to relieve transmission
congestion usually takes several years, in the interim some method must be used to ration the
limited amount of transmission capacity among those desiring to use it. The third is that there
are some areas where it will never be possible to build the additional transmission projects
needed to relieve the congestion. The DFW metropolitan area is an example of such an area. It
is virtually impossible, with any technology known today, to build several high voltage
transmission lines and their associated support facilities (substations, etc.) into the heart of cities
such as Dallas or Fort Worth. However, that is what is required in order to relieve the
transmission congestion that exists today in those areas.
In order to implement the Legislative mandates, the various market stakeholders in ERCOT
developed a method to ration transmission capacity in constrained areas that was put into effect
in 2001. The process identifies Commercially Significant Constraints (CSCs), which are defined
as "a transmission constraint that limits the free flow of energy within the ERCOT market to a
commercially significant degree". Generators are then grouped into Congestion Management
Zones that are geographical areas defined such that each generator within the boundaries of the
zone has a similar effect on the loading of the CSC transmission facilities between congestion
zones. When a CSC becomes overloaded, ERCOT pays generators in the zone on one end of the
overloaded CSC to reduce their output while simultaneously paying generators in the zone on the
other side of the CSC to increase their output until the overload is relieved. The amount of the
payments is usually determined through a bidding process. The cost of making these payments
is then allocated to the entities whose schedules caused the original congestion. ERCOT also
auctions off hedging rights on identified CSCs. The revenues from this auction are returned to
loads in ERCOT on a load ration share basis. The congestion payments made by entities
scheduling across CSC's are used to offset costs allocated to those who have bought the hedging
rights for that CSC's congestion relief.
However, not all transmission congestion occurs on CSC's. There is often transmission
congestion on transmission lines within a Congestion Management Zone. This "local
congestion" is usually caused by transmission system configurations that no longer adequately
support the electric load growth in an area rather than by wholesale market activity. "Local
congestion" is not significant enough to be considered a CSC but it also must be relieved by
raising and lowering generation of specified generating units and these generators are also both
paid for that service. Under the present system, the cost of relieving "local congestion" is
uplifted to all loads in ERCOT on a load ration share basis. The DFW area "North Zone"
experiences a significant amount of "local congestion" for which there is little hope of relief
from construction of new transmission or new generation. In south Texas, Corpus Christi,
Laredo, and the Valley are other examples of areas that currently have local congestion
problems. However, elimination of these local congestion problems is possible but expensive
and, in some cases, will take a significant amount of time.
During 2003, the PUC, under what many believe is some amount of influence from Pat Wood,
former Chairman of the PUC, now outgoing Chairman of the Federal Energy Regulatory
Commission, decided that a different system of transmission management should be
implemented in Texas. Some economists believe that this different type of system will provide
price signals that will cause generators to locate new projects in areas that do not cause
transmission congestion or in locations that will reduce congestion . The system, referred to as
Locational Marginal Pricing (LMP), is an extremely complex "nodal" pricing system that will be
very expensive to implement. Some estimates have been as high as $300 million for all parts of
the Texas market (ERCOT and stakeholders) to implement such a system. The LMP Cost
Benefit Study developed as part of the market redesign effort estimated these costs at
approximately $156,000,000 with $70,000,000 to $55,000,000 assigned to ERCOT. In addition
to these one-time development costs, the report estimates annual ERCOT O&M costs of between
$13,500,000 and $8,500,000. The portion of this cost to change the ERCOT system will be
passed through to all loads in ERCOT, including the customers of DME.
The success of this system in areas where it has been implemented has been questionable,
especially when its costs are considered. However, despite consistent comments by a number of
wholesale market stakeholders and consumers representatives questioning the wisdom of
implementing such a system, the PUC pressed forward. This rush into an LMP type system was
made without adequate cost benefit analysis on the part of the PUC. Furthermore,
implementation of an LMP type system will result in the higher overall congestion costs for all
of ERCOT and DFW local congestion costs being allocated to only electric customers in the
DFW area. As discussed above, DFW has almost no way to economically remove its local
transmission congestion costs absent some major, unforeseen technological breakthrough.
Imposition of an LMP type system in ERCOT will made the DFW a much higher cost energy
area than other parts of Texas, with the obvious negative impacts on DFW economic health and
growth potential.
The overall cost to DME customers of implementing an LMP type system combined with
potentially large negative impact on the DFW area economy are of grave concern to DME.
Through the use of both the Lloyd Gosselink law firm and R. J. Covington Consulting and the
efforts of DME staff, DME has actively participated in discussions of this issue both at ERCOT
and the PUC since its inception. Despite those efforts and the efforts of many other parties, the
PUC initially refused to consider the many problems of implementing an LMP type system in
Texas. In 2003, the PUC ordered a very expedited year and a half design process intended to
force an LMP system into Texas. DME joined with a number of other groups such as the TMPA
cities, two large Texas city aggregation groups, Retail Energy Providers, and some consumer
representatives in both actively participating in the design process and utilizing all available
avenues to force the PUC to perform a proper cost/benefit analysis prior to final adoption of an
LMP type system for Texas. Although this process has been frustrating, time consuming, and
expensive, our efforts, combined with the replacement of two of the three PUC Commissioners,
seemed to have produced some positive results.
At the September 2"d, 2004 PUC open meeting, the Commissioners voted to consider several
changes to the initial LMP order. These changes cover such areas as:
• Removal of the requirement that, if the results of the cost benefit study did not support a
change to a LMP design, the study was to be re-worked iteratively until it showed a
positive cost benefit.
• A significant slowing down of the schedule originally set by the order for moving to a
new market design.
• Addition of a six month period for the PUC to hold workshops for discussion of the cost
benefit study results and the overall market design issue.
Unfortunately, due to financial limitations and pressure placed on the consultant preparing the
Cost Benefit Study by the Commission staff, the final Cost Benefit Study was severely flawed in
many areas and biased towards the LMP "nodal" design approach. This was a major setback in
the effort to fight implementation of an LMP design. However, subsequent to the publishing of
the Cost Benefit Study, information regarding the problems becoming evident in other states that
have adopted an LMP design for their wholesale electric market began to be published. Federal
legislators in states that have not adopted an LMP market design began to exert pressure on the
Federal Energy Regulatory Commission to eliminate its LMP based Standard Market Design. At
the moment, it appears that Texas is the only state left that is considering moving to an LMP
market design.
Denton, Garland, Greenville, South Texas Electric Cooperative, the City of Dallas, Texas
Instruments, and a number of Retail Electric Providers (REPS) have jointed together in a loosely
organized coalition called the Committee of Concerned Loads (COCL) to continue to fight
adoption of an LMP market design for Texas. The COCL has attacked the problem on two
fronts.
First, it attempted to get legislation passed during the recent Texas Legislative session that would
have instructed the PUC to perform an additional study, with specific content requirements, and
provide the results of that study to the appropriate Legislative Committees. The discussion by
legislators of concerns about the impacts of implementing an LMP design in Texas did cause the
PUC Chairman to appear a bit nervous about moving ahead too quickly with a change to an LMP
design. However, despite the adoption of our amendment (by a significant majority of the
House) on four different energy related House bills, all of those bills failed as a result of issues
that had nothing to do with our amendment. At this time, we cannot tell if our efforts will have
any impact on the PVC's actions, since the amendment never became law. We will continue our
efforts to get legislators to individually place pressure on the Commission to move very
cautiously.
The second part of our attack has been to place before the Commission the outline of a set of
changes to the existing ERCOT wholesale market design. These changes are designed to
eliminate many of the acknowledged weaknesses in the existing wholesale market design, thus
avoiding the need to change market designs. In parallel with that effort, we have filled the PUC
public record with facts about the problems with existing markets where LMP is being used.
The PUC responded to this effort by setting up a three-day workshop to discuss the strengths and
weaknesses of the proposed Texas Nodal Team (TNT) LMP based market design, other market
design proposals, and potential mitigation methods for market manipulation. The COCL is
facing a difficult task. Although we have combined our resources, we are still much smaller and
definitely have much less money and staff to apply to this issue than the LMP proponents. In
addition, by PUC mandate, the entire ERCOT stakeholder group (including most of the COCL
members) and a large part of the ERCOT staff have devoted 18 months to preparing the TNT
LMP based market design. COCL has had six weeks to put together its counter proposal and
presentation. It is not possible to tell whether the PUC Commissioners are merely "going
through the motions" so they can claim that they actually considered alternatives to an LMP
market design before they adopted it or whether they are seriously considering the possibility of
not adopting an LMP based market.
At the moment, one Commissioner has indicated his clear intent to adopt an LMP market design,
one Commissioner has expressed strong concerns about whether moving to an LMP design is the
correct decision, and the Chairman has claimed to position of "swing vote" and indicated that he
intends to make the "LMP or not" decision by the end of July. If the Commission decides to try
to fix the existing market, the next step will be to design the details of what the "fixes" will be.
If the Commission decides to move to an LMP design, the next step will be a series of filings and
hearings on the proposed TNT market design.
Continued active participation in the design process and subsequent PUC review workshops,
filings, and hearings is necessary in order to preserve the positive progress we have made and to
see that, in the event an LMP type system is implemented, it that takes into consideration the
needs of DME's customers (such as the ability to schedule power from the Gibbons Creek plant
to Denton without paying large transmission costs). Such active participation requires having
representatives of DME attend meetings in Austin as well as filing of formal comments at the
PUC. In order to maintain the necessary level of participation, the support of both the Lloyd
Gosselink firm and R. J. Covington Consulting are required. The Covington firm, which is
located in Austin, represents DME at many of the Austin market design and PUC meetings and
workshops more cost effectively than having DME staff commute to Austin. Furthermore, DME
does not have sufficient staff to both attend all the meetings, review position papers, prepare
comments, and as well as maintain day-to-day responsibilities. The Gosselink firm assists in
dealing with the TPUC at formal hearings and through filings in the various rulemaking
proceedings that have been set up for the market design processes. Garland is engaging these
same firms for this effort, which allows for cost sharing between Garland and Denton.
OPTIONS
1. Approve the Task Order 05-D and continue active participation in the wholesale market
design process.
2. Do not approve Task Order 05-D and eliminate active participation in the wholesale market
design process.
RECOMMENDATIONS
DME recommends approval of Task Order 05-D with R. J. Covington Consulting, LLC for
support in the ongoing Public Utility Commission/Electric Reliability Council of Texas electric
wholesale market design project. Failure to continue to actively participate in the wholesale
market design process will virtually guarantee that DME's customers and the DFW area in
general will be economically harmed to some degree. In addition, it will cause DME to lose
credibility with the PUC Commissioners, which could hurt our ability to protect our interests in
future proceedings.
PRIOR ACTION/REVIEW (Council, Boards, Commission):
The Public Utilities Board considered this item at its June 13, 2005 meeting and voted to approve
it by a vote of 3 to 0 with 4 members absent.
FISCAL INFORMATION
Task Order 05-D with R. J. Covington Consulting, LLC not to exceed not to exceed $48,000.
DME has spent $265,000 since August of 2003 on RJC consultant support for this project. We
have received close to full time support from effectively two people during at least half of this
period with the remaining time utilizing close to full time support from one person. To date,
Garland has split the expenses for almost all of this support with DME as well as having one of
their own staff in Austin for two or three days each week. This Task Order is smaller than
previous similar Task Orders for two reasons. First, DME expects to assume more of this phase
of the work in-house. Second, this phase of the work is not expected to require as much Austin
meeting time as the prior periods.
EXHIBITS
1. Ordinance
2. Task Order 05-D
3. Agreement
4. PUB Minutes
Respectfully submitted:
~0 ~
Sharon Mays
Director of Electric Utilities
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. 05-13; PROVIDING FOR CONTINUED
SUPPORT AND ASSISTANCE TO DENTON MUNICIPAL ELECTRIC STAFF IN
ADDRESSING ISSUES ASSOCIATED WITH THE TEXAS NODAL TEAM PROCESS TO
IMPLEMENT A NODAL MARKET REDESIGN IN THE TEXAS ELECTRIC MARKET;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council deems it in the public interest 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. 05-1); which includes, without limitation, services
rendered regarding providing support and assistance to Denton Municipal Electric in addressing
issues associated with the Texas Nodal Team process in order to implement a nodal market
redesign in the Texas electric market; 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 nine
(9) years, and has proven to be a valuable, affordable, competent, and dependable professional
resource that has expertise in, and is well-acquainted with the electric financial and regulatory
framework of Denton 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-D, to the City and to Denton Municipal
Electric, in an amount of not to exceed $48,000; in substantially the form of the Professional
Services Agreement attached hereto and incorporated herewith by reference as Exhibit "A."
1 EXHIBIT 1
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, ACTING CITY ATTORNEY
BY.
S:1Our Documents\Ordinances10511Z 7 Covington Consulting LLC-DME-Ord Aprv TO 5-D 2005.doc
2
ATTACHMENT
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS AND
R.J. COVINGTON CONSULTING, LLC
TASK ORDER NO. 05-D
Market Design
Work provided for in this Task Order is directed at continuing assistance to Denton Municipal
Electric staff ("Staff") in addressing issues associated with the Texas Nodal Team ("TNT")
process to implement a nodal market redesign in the Texas electric market. Because the nodal
market design, with its Locational Marginal Price ("LMP") settlement, can shift significant costs
to the Dallas/Ft. Worth area ("DPW"), this process is of particular importance to the City of
Denton, Denton Municipal Electric ("DME"), and DME's ratepayers.
At this time the legislative session is coming to a close and the legislative related work will end.
The effort will be refocusing on the workshops and dockets at the Public Utility Commission of
Texas ("PUC") as it deals with any legislated changes and as it continues to evaluate the market
design and other market related issues. R. J. Covington Consulting ("RJC") will assist DME
staff in staying up to speed on market restructuring activities at the PUC and at the Electric
Reliability Council of Texas ("ERCOT"). The scope of services includes continuing
participation at the PUC in Project 28500, "Activities Related to Implementation of a Nodal
Market," and other dockets and projects related to market restructuring. RJC will also participate
at ERCOT on TNT committees and task forces, developing rules for implementing the nodal
system, as requested by staff from time to time.
The schedule for implementing a nodal market design is still uncertain. There will be continuing
stakeholder meetings to review and fine-tune the new protocols, as well as issues of cost
assignments have yet to be fully settled. These are important issues for DME. RJC will assist
DME staff as directed to provide coverage of these issues and promote the interests of DME and
its ratepayers.
RJC will continue to coordinate these activities with Garland Power and Light and the Greenville
Electric Utility System to make the most efficient use of our time as possible. Because the
schedule for implementing a nodal market design extends through 2006 and possibly beyond,
additional work orders may be required to complete this work. RJC will keep the Director of
Electric Utilities informed of the status of the budget, and work may be stopped at any time by
notification by the Director of Electric Utilities to RJC to cease work.
EXHIBIT 2
Task Order 05-D
Market Design
Scope of Services
Task A PUC Activities
Task A-1 Attending Workshops and Hearings at PUC
1. RJC will stay informed on activities related to market design Project 28500 and related
dockets and projects at the PUC and will attend workshops and hearings as needed.
2. When appropriate, RJC will participate in workshops and hearings to represent interests of
DME based on directions of Staff.
3. RJC will work with Staff in developing positions that should be taken and strategies for
working with parties involved.
4. RJC will prepare or assist in preparing comments to be filed with the PUC representing
DME's positions on proposed rules, projects and dockets related to market design.
5. RJC will meet with the Coalition of Concerned Cities and other parties as appropriate to
discuss the proposed zonal market changes and support DME staff.
Task B Assistance With ERCOT
Task B-1 Attend TNT Committee Meetings
1. RJC will stay informed on activities at the ERCOT Independent System Operator ("ISO")
and will attend meetings as directed by Staff that are related to implementing the nodal
market design.
2. RJC will participate in TNT meetings to represent the interests of DME and to promote the
COCL Proposal.
3. RJC will work with Staff in developing positions which should be taken and strategies for
working with other ERCOT stakeholders.
Task B-2 Analyze Proposed Policies and Protocols
1. RJC will review the new market design protocols proposed by the ISO and identify concerns.
2. RJC will meet with ERCOT staff and other stakeholders as requested by DME staff to discuss
proposed market design issues and negotiate to mitigate the impact on DFW loads.
Task C Working With Other Affected Parties
Task C-1 Coordination With Other Market Participates
1. RJC will continue to work with other affected municipalities, organizations, cooperatives,
and associations where appropriate to promote the COCL and to otherwise mitigate the
impacts of the nodal market on certain areas of the state.
2. RJC will participate in meetings with other market participates as requested by Staff to
discuss strategy and positions.
3. RJC will continue to develop issues papers and statistics to assist in educating legislators,
media and other market participates on the current market design and proposed changes.
2of3
Task Order 05-D
Market Design
Task C-2 Work With Lobbyists and Publicists
1. RJC will continue work with the City's lobbyists to educate legislators on the issues.
2. RJC will work with DME staff to inform the public of the impact on them of the
Commission's push to a nodal market design.
Budget
A budget of $48,000 for labor and expenses is agreed upon. Because of the uncertainty
regarding the level of activity required, this budget is an estimate. Additional work orders may
be required to complete this work. This budget will not be exceeded without prior written
approval of the City. 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.
AUTHORIZED BY: ACCEPTED BY:
CITY OF DENTON, TEXAS R.J. COVINGTON CONSULTING, LLC
A Texas Municipal Corporation
By: By:° Y
Michael A. Conduff R. oving , President
City Manager
Dated: Dated:
ATTEST: APPROVED AS TO LEGAL FORM:
JENNIFER WALTERS, CITY SECRETARY EDWIN M. SNYDER, INTERIM CITY ATTORNEY
By, By:
Dated: Dated:
SAOur Documents\Contracts1051RJC TO 05-D Nodal Market Design-DME.doc
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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:
ARTICLE 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.
ARTICLE IT
SCOPE OF SERVICES
A. COVINGTON shall provide to the CITY professional consulting services pertaining to
assisting Denton Municipal Electric in addressing issues associated with the Texas Nodal Team
process to implement a nodal market redesign in the Texas electric market. This matter involves a
matter of particular importance to the City, to DME, and to DME's ratepayers; that is the nodal
market design, with its Locational Management Price settlement, involving a shifting of costs to the
Dallas/Ft. Worth area. COVINGTON agrees to perform those services and tasks more particularly
and specifically described in Task Order No. 05-D attached hereto and incorporated herewith by
reference.
B. To consult with the City Manager, Assistant City Manager/Utilities, the Director of Electric
Utilities, the Utility Attorney, and any other designated administrative personnel regarding any and
all aspects of the services to be performed pursuant to this Agreement.
ARTICLE IT
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
EXHIBIT 3
Agreement shall be upon the earliest to occur of the following events: completion of the work
described herein and in the attached Task Order No. 05-1); or upon the depletion and exhaustion of
the $48,000 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.
ARTICLE TV
COMPENSATION
A. COMPENSATION TERMS:
"Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder
by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense,
overnight courier, photocopy expense, transportation, travel, communications, subsistence and
lodging away from home and similar incidental expenses reasonably incurred in connection
with that assignment.
B. BILLING AND PAYMENT:
1. For and in consideration of the professional services to be performed by COVINGTON
herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct
non-labor expense, not to exceed $48,000 for those services described in Task Order No. 05-
D.
2. The fee for the services described in this Agreement to be performed by COVINGTON
are to be billed the rates as set forth in Exhibit "A" attached hereto and incorporated herewith
by reference. Billing shall be reported in minimum one-quarter (1/4) hour increments.
3. Payments to COVINGTON will be made by the CITY on the basis of detailed monthly
statements rendered to the CITY through its Director of Electric Utilities. The fee bills as
submitted, shall be allowed and approved by the Director of Electric Utilities. However,
under no circumstances shall any monthly statement for services exceed the value of the work
performed at the time a statement is rendered.
4. Nothing contained in this Article shall require the CITY to pay for any work which is
unsatisfactory as reasonably determined by the City Manager or the Director of Electric
Utilities, or which is not submitted in compliance with the terms of this Agreement. The City
shall not be required to make any payments to COVINGTON when COVINGTON is in
default under this Agreement.
5. It is specifically understood and agreed that COVINGTON shall not be authorized to
undertake any work pursuant to this Agreement which would require additional payments
by the CITY for any charge, expense or reimbursement above the maximum not-to-exceed
fee as stated, without first having obtained written authorization from the CITY.
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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
amounts due for services, expenses and charges provided. However, nothing herein shall
require the CITY to pay the late charge of one percent (1%) set forth herein if the CITY
reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with
this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such
defect.
ARTICLE V
OBSERVATION AND REVIEW OF THE WORK
COVINGTON will exercise reasonable care and due diligence in discovering and promptly
reporting to the CITY any defects or deficiencies in his work or the work of any 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.
ARTICLE. VII
INDEPENDENT CONTRACTOR
COVINGTON shall provide services to the CITY as an independent contractor, not as an
employee of the CITY. COVINGTON shall not have or claim any right arising from employee
status.
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ARTICLE VITT
INDEMNITY AGREEMENT
COVINGTON shall indemnify and save and hold harmless the CITY and its officers, agents,
and employees from and against any and all liability, claims, demands, damages, losses and
expenses, including but not limited to court costs and reasonable attorney's fees incurred by the
CITY, and including without limitation, damages for bodily and personal injury, death and property
damage, and damage for professional malpractice resulting from the negligent acts or omissions of
COVINGTON or any subconsultants, in performance of this Agreement. COVINGTON'S liability
under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as
set forth in Article IX.
Nothing in this Agreement shall be construed to create a liability to any person who is not a
parry 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.
ARTICLE 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:
A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000
for each occurrence and not less than $500,000 in the aggregate, and with property damage
limits of not less than $100,000 for each occurrence, and not less than $100,000 in the
aggregate.
B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each
person and not less than $500,000 for each accident; and with property damage limits of not
less than $100,000 for each accident.
C. Professional Liability Insurance with policy limits of not less than $1,000,000 annual
aggregate.
D. COVINGTON shall furnish insurance certificates or insurance policies at the CITY's request
to evidence such coverages. The insurance policies shall name the CITY as an additional
insured on all such policies to the extent legally possible, and shall contain a provision that
such insurance shall not be canceled or modified without thirty (30) days prior written notice
to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of
the change or cancellation, deliver substitute policies furnishing the same coverage to the
CITY.
4
ARECLE~X
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).
ARTICLE. XIT
CONSEQUENTIAL DAMAGES
In no event and under no circumstances shall COVINGTON be liable to CITY for any
interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any
consequential, indirect or special damages.
ARTICLE XIIi
PROFESSIONAL STANDARDS
i
i
COVINGTON will perform services under this Agreement with the degree of skill and
diligence normally practiced by professional engineers or consultants performing the same degree of
similar services. No other warranty or guarantee, expressed or implied, is made with respect to the
services furnished under this Agreement and all implied warranties are disclaimed.
ARTICLE XIV
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either party may terminate this
Agreement by giving thirty (30) days advance written notice of termination to the other party.
B. This Agreement may be terminated in whole or in part in the event of either party substantially
failing to fulfill its obligations under this Agreement. No such termination will be effected
unless the other party is given: (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.
C. If this Agreement is terminated prior to completion of the services to be provided hereunder,
s
COVINGTON shall immediately cease all services and shall render a final bill for services to
the CITY within thirty (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 turn 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.
ARTICLE 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 subconsultants of COVINGTON, for the accuracy and
competency of their designs or other work product.
ARTICLE 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 City of Denton, Texas
Attn: Richard J. Covington, President Attn: City Manager
11044 Research Blvd., Suite A-325 215 East McKinney Street
Austin, Texas 78759 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.
ARTICLE. XVII
ENTIRE AGREEMENT
This Agreement consisting of nine (9) pages, and three (3) additional pages consisting of Task
Order No. 05-D, constitutes the complete and final expression of the agreement of the parties and is
6
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 XVTTT
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 all federal, state, local laws, rules, regulations, and
ordinances applicable to the work covered hereunder as they may now read or hereinafter be
amended.
ARTICLE XX
DISCRIMINATION PROHIBITED
In performing the services required hereunder, COVINGTON shall not discriminate against
any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical
handicap.
PERSONNEL
A. COVINGTON represents that he has secured, or will secure at his own expense any additional
personnel required to perform all the services required under this Agreement. Such personnel
shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have
any contractual relations with the CITY. COVINGTON shall inform the CITY of any conflict
of interest or potential conflict of interest that may arise during the term of this Agreement.
B. All services required hereunder will be performed by COVINGTON or under his supervision.
All personnel engaged in work shall be qualified and shall be authorized and permitted under
state and local laws to perform such services.
ARTICLE XXII
ASSIGNABILITY
COVINGTON shall not assign any interest in this Agreement and shall not transfer any
interest in this Agreement (whether by assignment, novation or otherwise) without the prior written
consent of the CITY.
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ARTICLE XXII
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 parry to be charged therewith and
no evidence of any waiver or modification shall be offered or received in evidence in any proceeding
arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of
the parties hereunder, and unless such waiver or modification is in writing, duly executed; and, the
parties further agree that the provisions of this section will not be waived unless as herein set forth.
ARTICLE XXIV
MISCELLANEOUS
A. COVINGTON agrees that CITY shall, until the expiration of three (3) years after the final
payment under this Agreement, have access to and the 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.
B. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton
County, Texas. This Agreement shall be governed by, and construed in accordance with the
laws of the State of Texas.
C. COVINGTON shall commence, carry on, and complete the work required by this engagement
with all applicable dispatch, in a sound, economical, efficient manner and in accordance with
the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are
appropriate to ensure that the work involved is properly coordinated with related work being
carried on by the CITY.
D. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available
information pertinent to the work required by this engagement, including previous reports, any
other data relative to the project and arranging for the access to, and make all provisions for
COVINGTON to enter in or upon, public and private property as required for COVINGTON
to perform services under this Agreement.
E. The captions of this Agreement are for informational purposes only and shall not in any way
affect the substantive terms or conditions of this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be
executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covington
Consulting, LLC has executed this Agreement by its duly authorized officer on this the day of
2005.
"CITY"
s
CITY OF DENTON, TEXAS
A Municipal Corporation
By:
Michael A. Conduff, City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM.
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
S
By:
"COVINGTON"
R. J. COVINGTON CONSULTING, LLC
A Texas Limited Liability Corporation
By: 41145~04
Richard J. C ngto resident
SA0ur Documents\Contracts1051RJ Covington Consulting LLC-PSA-TO 05-D Nodal Market Design-DME.doc
9
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Electric Utility
ACM: Howard Martin, 349-8232 1k1f-1"
SUBJECT
Consider adoption of 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-E; providing for continued support
and assistance to Denton Municipal Electric Staff as they address continuing changes to the
electric industry as a result of changes initiated at both the Public Utilities Commission of Texas
and the Electric Reliability Council of Texas; authorizing the expenditure of funds therefor; and
providing an effective date. (The Public Utilities Board recommends approval by a vote of 3-0.)
BACKGROUND
For the past nine years, it has been the practice of Denton Municipal Electric (DME) to maintain
a general regulatory services task order with R. J. Covington, initially as an employee of
Resource Management International followed by contracting with his independent consulting
firm. The previous general regulatory service task orders had typically been for $100,000.
Based on the assumption that the PVC's preoccupation with the wholesale market redesign
process would reduce their activity in other areas, the amount of the last three regulatory services
contracts have been reduced. The most recent of these contracts was issued in mid October of
2005 in the amount of $60,000. All funds all funds in that Task Order are expected to be
depleted with the June billing for work under this category.
Since the passing of Senate Bill 7, Mr. Covington's firm, working in coordination with DME and
Garland staff members, has been critical in providing coverage of the Austin based Electric
Reliability Council of Texas (ERCOT) committee meetings and Texas Public Utilities
Commission (TPUC) workshops that occur regularly and impact the operational structure of
existing the retail and wholesale deregulated marketplace. The ongoing changes being
introduced almost daily into the existing deregulated electric marketplace design by the TPUC,
ERCOT staff and electric market participants are often critical to DME's ability to successfully
function in the marketplace. Failure of DME to monitor and participate effectively in these
activities will result in changes to the existing market model harmful to the interest of smaller
players such as DME.
While the TPUC ERCOT Texas Nodal Team (TNT) stakeholder activity has been focused on the
wholesale market redesign, activity in the various standing ERCOT committees, subcommittees,
and working groups continues to be high and has addressed several complex issues that required
analysis. In the area of Protocol Revisions alone, revisions to the existing market protocols
continue to be filed, discussed, analyzed, and approved. Also several significant reliability
related criteria, such as generator governor response requirements have been enacted. At
present, the focus is on the determining the appropriate calculation for forecasting the generation
reserve margin in ERCOT and designing a method for assuring that the generation needed to
maintain that reserve margin is built. Since, in a deregulated market, no one is required to build
generation this effort is critical to assure reliable electric service to all consumers in ERCOT.
Because of the interconnected nature of the electric grid, it is not possible for DME to protect its
customers simply by purchasing and/or building sufficient generation to serve its own load. If
the ERCOT grid as a whole does not have enough capacity to serve all load in ERCOT at a given
moment, DME's customers could be negatively impacted.
In the past the general task order has been used to provide a variety of analytical and strategic
planning support to DME in areas such as:
• Development of strategic options
• Gas price forecasts
• Assistance in financial and technical model development
• Drafting of small contracts and agreements
• Technical support for state legislative efforts
• Review and analysis of TMPA financial records
• DME load analysis
• Support for DME Texas Public Utility Commission (TPUC) filings
• Representation of DME at Electric Reliability Council of Texas (ERCOT) committee
meetings
• Review and monitoring of all activities at the TPUC and ERCOT to identify developing
issues that will impact DME
The existing DME staff is unable to perform all of these types of tasks either because of
workload or lack of expertise. In addition, the Covington firm's location in Austin provides a
cost effective way of assuring DME's interests are represented at the numerous critical meetings
that are held in Austin, and provides access to information sources not available to staff isolated
in Denton. The availability of a general task order with a firm that has an in depth knowledge of
DME's structure and position in the market allows DME to react to unforeseen issues in a timely
fashion. In today's deregulated environment, such issues often require identification and
reaction much faster than the City's contract approval process or DME's limited staff can
accommodate.
OPTIONS
1. Continue to use the Covington firm's services
2. Reduce DME participation in the Texas electric market. Rely totally on DME staff for all
other technical issues.
RECOMMENDATIONS
DME staff recommends approval of the Task Order.
PRIOR ACTION/REVIEW (Council, Boards, Commission)
The Public Utilities Board considered this item at its June 13, 2005 meeting and voted to approve
it by a vote of 3 to 0 with 4 members absent.
FISCAL INFORMATION
The cost of this task order is not to exceed $70,000.
EXHIBITS:
1. Ordinance
2. Task Order 5-E
3. Agreement
4. PUB Mintues
Respectfully submitted:
44,--t~ 0 GfLr
Sharon Mays
Director of Electric Utilities
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-E; PROVIDING FOR CONTINUED
SUPPORT AND ASSISTANCE TO DENTON MUNICIPAL ELECTRIC STAFF AS THEY
ADDRESS CONTINUING CHANGES TO THE ELECTRIC INDUSTRY AS A RESULT OF
CHANGES INITIATED AT BOTH THE PUBLIC UTILITIES COMMISSION OF TEXAS
AND THE ELECTRIC RELIABILITY COUNCIL OF TEXAS; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it in the public interest 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-E; which includes, without limitation, services
rendered regarding continued support and assistance to Denton Municipal Electric staff as they
address continuing changes to the electric industry as a result of the changes initiated at both the
Public Utilities Commission of Texas and the Electric Reliability Council of Texas; 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 nine
(9) years, and has proven to be a valuable, affordable, competent, and dependable professional
resource that has expertise in, and is well-acquainted with the electric financial and regulatory
framework of Denton 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-E, regarding the City and Denton Municipal
Electric, in an amount of not to exceed $70,000; in substantially the form of the Professional
Services Agreement attached hereto and incorporated herewith by reference as Exhibit "A."
1 EXHIBIT 1
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 1 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.
EULDI E BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, ACTING CITY ATTORNEY
I
1 ~
B
y
S;\Our DocumentslOrdinances1051R J Covington Consulting LLC-DME-Ord Aprv TO 5-S 2005.doe
2
ATTACHMENT
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS AND
R.J. COVINGTON CONSULTING, LLC
TASK ORDER NO. 05-E
Regulatory Services
This Task Order is for continuing assistance to Denton Municipal Electric staff ("Staff') as they
address the continuing changes to the electric industry as a result of changes initiated at the
Public Utility Commission of Texas ("PUC") and at the Electric Reliability Council of Texas
("ERCOT"). Task A addresses activities at the PUC. The PUC addresses issues that will affect
the way DME conducts it business. RJC will work with Staff to develop and present DME's
position on those issues that may affect DME and the City. It is important for DME to be aware
of changes to remain in compliance with Texas regulations and to protect its interests and the
interests of its ratepayers.
In addition, there are issues that arise at ERCOT that are unrelated to the Nodal Market Design.
The scope of services listed in Task B address coverage of these issues. This includes covering
the ERCOT subcommittee that is responsible for changing protocols that affect current market
operations. It also include coverage of the Wholesale Market Subcommittee which is
responsible for evaluating and forwarding to ERCOT's Technical Advisory Committee ("TAC")
proposed changes in the current market design that affect the way utilities in ERCOT operate.
RJC attends meetings and researches issues that assist the Director in preparing for these
monthly TAC meetings in Austin.
Task C allows RJC to supplement Staff's efforts to keep track of the vast amount of information
that is needed to keep up with activities at the PUC and ERCOT. RJC helps staff identify those
issues needing DME's attention. In addition to surveying and reporting on ongoing activities at
the PUC and ERCOT, RJC is a resource providing extensive regulatory experience to assist Staff
as they evaluate the impact on DME of various issues and in responding to questions from the
Public Utilities Board and the City Council.
This Task Order addresses regulatory issues that are separate from the Texas Nodal Team's
("TNT") nodal market design debate. Because of the effort required for dealing with the PVC's
Substantive Rule 25.501 related to evaluation of changes in the ERCOT market design, the
Nodal Market Design work is addressed in a separate Task Order. All work performed at the
PUC is conducted at the direction of the Director of Electric Utilities.
EXHIBIT 2
Task Order 05-E
Regulatory Services
Scope of Services
Task A PUC Re ulator Su ort
Task A-1 Attending Workshops and Hearings at PUC
1. RJC will stay informed on activities at the PUC and will attend workshops and hearings
as needed.
2. When appropriate, RJC will participate in workshops and hearings to represent interests
of the City based on directions of Staff.
3. RJC will work with Staff in developing positions which should be taken and strategies for
working with parties involved.
Task A-2 Analyze Proposed Rules and Policies
1. Proposed new rules and rule changes from the PUC will be analyzed.
2. RJC will discuss proposed new rules, and changes to existing rules with Staff and legal
counsel, helping to identify areas of concern and preparing positions that represent the
interests of the City.
3. RJC will meet with PUC staff and other parties as appropriate to discuss proposed rules, and
present the City's concerns regarding such proposals.
Task A-3 Preparation of Comments
1. RJC will prepare or assist in preparing comments to be filed with the PUC representing the
City's position on issues brought up in proposed rules, projects and dockets.
2. These comments will be coordinated through Staff and the City's legal team.
3. RJC will assist the City's legal team as necessary in the preparation and filing of comments
and testimony in dockets that have been identified by Staff as requiring intervention to
protect the City's interest.
Task B Assistance With ERCOT
Task B-1 Attending Committee and Working Group Meetings at ERCOT
1. RJC will stay informed on activities at the ERCOT Independent System Operator ("ISO")
and will attend meetings as directed.
2. RJC will participate in discussions in meetings to represent interests of City based on
directions of Staff.
3. RJC will work with Staff in developing positions which should be taken and strategies for
working with other ERCOT stakeholders.
Task B-2 Analyze Proposed Policies and Protocols
1. Proposed new policies and protocols from the ISO will be analyzed.
2. RJC will review proposed protocols with Staff, to identify areas of concern and prepare
responses that represent the position of the City on the issues before the committees.
2 of 4
Task Order 05-E
Regulatory Services
3. RJC will meet with ERCOT staff and other stakeholders to discuss proposed protocols, and
negotiate reconciliation of concerns.
Task B-3 Preparation of Comments
1. RJC will prepare or assist in preparing whitepapers and comments to be submitted to the
committees and be prepared to present such papers to represent the City's position on issues.
2. These papers and comments will be coordinated through Staff and when necessary, the
City's legal team.
Task C Industry Monitoring and Evaluation
1. RJC will have continuing communication with Staff and the City's legal team in order to
monitor proposed industry changes and address those issues affecting municipalities.
2. An ongoing dialogue will be maintained with Staff and the legal team in order to evaluate
changing operating and market requirements and conditions, and evaluate potential
effects on City operations.
3. Information necessary to supplement and support the decision-making process will be
provided as requested.
4. A summary of activities at the PUC and ERCOT will be provided weekly.
Budget
RJC recommends a not to exceed budget of $70,000 for labor and expenses. This budget will
not be exceeded without prior written approval of the City. RJC will bill 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 92005.
AUTHORIZED BY: ACCEPTED BY:
CITY OF DENTON, TEXAS R.J. COVINGTON CONSULTING, LLC
A Texas Municipal Corporation
By: By:
Michael A. Conduff R. J. vtngt n resident
City Manager
Dated: Dated: L„~ L, zvd,5
3 of 4
Task Order 05-E
Regulatory Services
ATTEST: APPROVED AS TO LEGAL FORM:
JENNIFER WALTERS EDWIN M. SNYDER
CITY SECRETARY INTERIM CITY ATTORNEY
By: By:. /
Y' J '
Dated: Dated:
SAOur Documents\Contracts1051RJC TO 05-E Regulatory Services-DME.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 12005,
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:
ARTICLE I
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.
ARTICLE IT
SCOPE OF SERVICES
A. COVINGTON shall provide to the CITY professional consulting services pertaining to
continued assistance to Denton Municipal Electric Staff in addressing the continuing issues to the
electric industry as a result of changes initiated at the Public Utilities Commission of Texas ("PUC")
and at the Electric Reliability Council of Texas (ERCOT"). This matter includes issues that will
affect the way DME conducts its business. It is important for DME to be aware of changes in order
to remain in compliance with Texas regulations, to protect its interests as well as the interests of its
ratepayers. COVINGTON agrees to perform those services and tasks more particularly and
specifically described in Task Order No. 05-E 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 ITT
PERIOD OF SERVICE
This Agreement shall become effective on the date this Agreement is approved and upon the
i
EXHIBIT 3
issuance of a notice to proceed by Denton Municipal Electric ("DME"). The termination date of this
Agreement shall be upon the earliest to occur of the following events: completion of the work
described herein and in the attached Task Order No. 05-E; or upon the depletion and exhaustion of
the $70,000 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.
ARTICLE IV
COMPENSATION
A. COMPENSATION TERMS:
"Direct Non-Labor Expense" is defined as that expense for any assignment incurred hereunder
by COVINGTON for supplies, long-distance telephone, telecopier, reproduction expense,
overnight courier, photocopy expense, transportation, travel, communications, subsistence and
lodging away from home and similar incidental expenses reasonably incurred in connection
with that assignment.
B. BILLING AND PAYMENT:
I . For and in consideration of the professional services to be performed by COVINGTON
herein, the CITY agrees to pay COVINGTON, a total fee, including reimbursement for direct
non-labor expense, not to exceed $70,000 for those services described in Task Order No. 05-
E.
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 (114) 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 Agreement. The City
shall not be required to make any payments to COVINGTON when COVINGTON is in
default under this Agreement.
5. It is specifically understood and agreed that COVINGTON shall not be authorized to
undertake any work pursuant to this Agreement which would require additional payments
by the CITY for any charge, expense or reimbursement above the maximum not-to-exceed
2
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
amounts due for services, expenses and charges provided. However, nothing herein shall
require the CITY to pay the late charge of one percent (1 set forth herein if the CITY
reasonably determines that the work of COVINGTON is unsatisfactory, in accordance with
this Article IV, Compensation, and the CITY notifies COVINGTON in writing of any such
defect.
ABTLQ,P~V
OBSERVATION AND REVIEW OF THE WORK
COVINGTON will exercise reasonable care and due diligence in discovering and promptly
reporting to the CITY any defects or deficiencies in his work or the work of any subconsuitants
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 parry 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.
ARTICLE 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.
ARTTC LE VIII
INDEMNITY AGREEMENT
COVINGTON shall indemnify and save and hold harmless the CITY and its officers, agents,
and employees from and against any and all liability, claims, demands, damages, losses and
expenses, including but not limited to court costs and reasonable attorney's fees incurred by the
CITY, and including without limitation, damages for bodily and personal injury, death and property
damage, and damage for professional malpractice resulting from the negligent acts or omissions of
COVINGTON or any subconsultants, in performance of this Agreement. COVINGTON'S liability
under this Article VIII is expressly limited to the amount of COVINGTON'S insurance coverage as
set forth in Article IX.
Nothing in this Agreement shall be construed to create a liability to any person who is not a
party to this Agreement and nothing herein shall waive any of the party's defenses, both at 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 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:
A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000
for each occurrence and not less than $500,000 in the aggregate, and with property damage
limits of not less than $100,000 for each occurrence, and not less than $100,000 in the
aggregate.
B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each
person and not less than $500,000 for each accident; and with property damage limits of not
less than $100,000 for each accident.
C. Professional Liability Insurance with policy limits of not less than $1,000,000 annual
aggregate.
D. COVINGTON shall furnish insurance certificates or insurance policies at the CITY's request
to evidence such coverages. The insurance policies shall name the CITY as an additional
insured on all such policies to the extent legally possible, and shall contain a provision that
such insurance shall not be canceled or modified without thirty (30) days prior written notice
to CITY and COVINGTON. In such event, COVINGTON shall, prior to the effective date of
the change or cancellation, deliver substitute policies furnishing the same coverage to the
CITY.
4
ARTICLE. X
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. XT
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).
ARTICLE. XIT
CONSEQUENTIAL DAMAGES
In no event and under no circumstances shall COVINGTON be liable to CITY for any
interest, loss of anticipated revenues, earnings, profits, or increased expense of operations, or for any
consequential, indirect or special damages.
ARTICLE XIII
PROFESSIONAL STANDARDS
COVINGTON will perform services under this Agreement with the degree of skill and
diligence normally practiced by professional engineers or consultants performing the same degree of
similar services. No other warranty or guarantee, expressed or implied, is made with respect to the
services furnished under this Agreement and all implied warranties are disclaimed.
ARTICLE XN
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either party may terminate this
Agreement by giving thirty (30) days advance written notice of termination to the other party.
B. This Agreement may be terminated in whole or in part in the event of either party substantially
failing to fulfill its obligations under this Agreement. No such termination will be effected
unless the other party is given: (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.
C. 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
5
the CITY within thirty (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 turn 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.
ARTICLE. 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 subconsultants of COVINGTON, for the accuracy and
competency of their designs or other work product.
ARTICLE 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 City of Denton, Texas
Attn: Richard J. Covington, President Attn: City Manager
11044 Research Blvd., Suite A-325 215 East McKinney Street
Austin, Texas 78759 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.
ARTICLE XVII
ENTIRE AGREEMENT
This Agreement consisting of nine (9) pages, and four (4) additional pages consisting of Task
Order No. 05-E, 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
6
prior contemporaneous offers, promises, representations, negotiations, discussions, communications
and agreements which may have been made in connection with the subject matter hereof.
ARTICLE =11
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 all federal, state, local laws, rules, regulations, and
ordinances applicable to the work covered hereunder as they may now read or hereinafter be
amended.
ARTICLE 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.
ARTIC'T.E. XXT
PERSONNEL
A. COVINGTON represents that he has secured, or will secure at his own expense any additional
personnel required to perform all the services required under this Agreement. Such personnel
shall be subconsultants of COVINGTON, and shall not be employees or officers of, nor have
any contractual relations with the CITY. COVINGTON shall inform the CITY of any conflict
of interest or potential conflict of interest that may arise during the term of this Agreement.
B. All services required hereunder will be performed by COVINGTON or under his supervision.
All personnel engaged in work shall be qualified and shall be authorized and permitted under
state and local laws to perform such services.
ARTIC'I~E XXTI
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.
7
ARTICLE XXIII
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, limitation herein
contained shall be valid unless in writing and duly executed by the party to be charged therewith and
no evidence of any waiver or modification shall be offered or received in evidence in any proceeding
arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of
the parties hereunder, and unless such waiver or modification is in writing, duly executed; and, the
parties further agree that the provisions of this section will not be waived unless as herein set forth.
ARTICLE XXTV
MISCELLANEOUS
A. COVINGTON agrees that CITY shall, until the expiration of three (3) years after the final
payment under this Agreement, have access to and the 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.
B. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton
County, Texas. This Agreement shall be governed by, and construed in accordance with the
laws of the State of Texas.
C. COVINGTON shall commence, carry on, and complete the work required by this engagement
with all applicable dispatch, in a sound, economical, efficient manner and in accordance with
the provisions hereof. In accomplishing the work, COVINGTON shall take such steps as are
appropriate to ensure that the work involved is properly coordinated with related work being
carried on by the CITY.
D. The CITY shall assist COVINGTON by placing at COVINGTON's disposal all available
information pertinent to the work required by this engagement, including previous reports, any
other data relative to the project and arranging for the access to, and make all provisions for
COVINGTON to enter in or upon, public and private property as required for COVINGTON
to perform services under this Agreement.
E. The captions of this Agreement are for informational purposes only and shall not in any way
affect the substantive terms or conditions of this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be
executed in four (4) original counterparts, by its duly authorized City Manager; and R.J. Covington
Consulting, LLC has executed this Agreement by its duly authorized officer on this the day of
, 2005.
"CITY"
a
CITY OF DENTON, TEXAS
A Municipal Corporation
By:
Michael A. Conduff, City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
By: 111+,'j
"COVINGTON"
R. J. COVINGTON CONSULTING, LLC
A Texas Limited Liability Corporation
By:
Richard J. Cov' on, e 'dent
S:10ur Documents\Contracts1051RJ Covington Consulting LLC-PSA-TO 05-E Nodal Market Design-DME.doc
9
CITY OF DENTON, TEXAS
PUBLIC UTILITIES BOARD MEETING MINUTES
JUNE 13, 2005
9:00 a.m.
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, June 13,
2005, at 9:00 a.m., in the Service Center Training Room, City of Denton Service Center, 901-
A Texas Street, Denton, Texas.
PRESENT: George Hopkins, Charldean Newell, and Dick Smith
John Baines arrived at 9:18 a.m.
EX OFFICIO MEMBERS
Howard Martin, ACM/Utilities
EXCUSED: Bob Bland
Bill Cheek
Phil Gallivan
[The Chair started the Open Meeting at 9:00 o'clock a.m. Three members were present at that
time. In order to conduct a Closed Meeting and meet the requirements of §551.086(b)(3),
four members, or a "majority vote of the Board's members" must be present. The Utility
Attorney concurred. The Chair proceeded to shift the agenda until the fourth member of the
Board could be present later that morning. The Chair proceeded with the Open Meeting
agenda.]
CONSENT AGENDA:
1) Consider approval of Task Order 05-D with R. J. Covington Consulting, LLC for
continued support in the ongoing Texas Public Utility Commission ("PUC")/Electric
Reliability Council of Texas ("ERCOT") electric wholesale market design project; in an
amount not to exceed of $48,000.
2) Consider approval of Task Order 05-E with R. J. Covington Consulting, LLC for general
regulatory project support in workshops, investigations, and other proceedings at the
Texas Public Utility Commission ("PUC"), support in various Electric Reliability Council
of Texas ("ERCOT") committees, working groups, and other miscellaneous small
projects; in an amount not to exceed $70,000.
3) Consideration of and a recommendation to award a two-year contract for the purchase of
water meters for the City of Denton Water Department; providing for the expenditure of
funds therefore; and providing an effective date (Bid 3311-Two Year Contract for Water
Meter Inventory awarded to the lowest responsible bidder for each item in the annual
estimated amount of $100,000).
1
4) Consideration of and a recommendation to accept competitive bids and awarding a two-
year contract for the purchase of electric meters, CT's, and meter sockets for Denton
Municipal Electric; providing for the expenditure of funds therefore; and providing an
effective date (Bid 3332-Two Year Contract for Electric Meters, CT's and Meter Sockets
awarded to the lowest responsible bidder for each item in the annual estimated amount of
$186,000).
5) Consideration of and a recommendation to accept competitive bids and award a three-year
contract for the purchase of wood utility poles for Denton Municipal Electric; providing
for the expenditure of funds therefore; and providing an effective date (Bid 3342-Three
Year Agreement for Wood Utility Poles awarded to the lowest responsible bidder for each
item in the annual estimated amount of $160,000).
6) Consideration of and a recommendation to award the purchase of refuse carts and
miscellaneous cart materials from the Houston-Galveston Area Council of Governments
("HGAC") statewide cooperative purchasing program, in an amount not to exceed
$30,000.
7) Consider approval of the Professional Services Agreement with United States Right-of-
Way Acquisition Company, Inc. for right of way services relating to the Clear Creek
interceptor sewer, in an amount not to exceed $29,400.
8) Consider approval of adjusting the Electric Energy Cost Adjustment ("ECA") rate and the
Renewable Cost Adjustment ("RCA") for the fourth quarter of FY2005 to $0.045 per
KWh from the current $0.046 per KWh.
9) Consider approval of a Professional Service Agreement with Motorola, for a Four
Channel Addition to a Single Site Smartnet radio system located at McKenna Park, in an
amount not to exceed $38,000.
Agenda Item #8 was pulled from the Consent Agenda to be considered under Items for
Individual Consideration. Board Member George Hopkins moved to approve Consent
Agenda Items #1-7 and Consent Agenda Item #9, with a second from Board Member
Dick Smith. The motion was approved by a vote of 3-0.
2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Utilities
ACM: Howard Martin, 349-8232 IkIf-1-
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas, amending Chapter 18 of the Code of
Ordinances by adding Section 18-73; altering the prima facie speed limits established for vehicles
under the provision of Transportation Code, Section 545.356, upon the following roadways or parts
thereof, within the incorporated limits of the City of Denton; providing a penalty not to exceed $200.00
unless the violation occurs in a work zone and then the penalty shall not exceed $400.00; providing a
severability clause; providing a repealing clause; providing for publication; and declaring an effective
date.
BACKGROUND
The Texas Department of Transportation (TxDOT) periodically performs speed limit studies on all of
its highways, including those in the City of Denton. Because it had been several years since the last
speed survey within the City, in the mid 1990's TxDOT resurveyed all of the TxDOT roadways in the
City and provided City staff with updated speed zone recommendations for consideration and
approval. The City staff and TxDOT did not always agree about the proposed speed limits on various
portions of roadways. In 2001, because of the prolonged negotiations with City staff without
resolution, TxDOT considered having the Texas Transportation Commission pass a Minute Order as
the means to establish the speed limits without City involvement. Because of the possibility of a
Minute Order by the Texas Transportation Commission (approving what City staff believed were
unacceptable speed limits), the City renewed its effort to reestablish a relationship with TxDOT.
Over the last four years TxDOT, at the request of City staff, resurveyed a number of locations that
resulted in TxDOT recommending lower speeds than those originally proposed for various portions of
highways. As TXDOT and the City came to agreement on different roads, these speed limits were
provided for consideration to the Traffic Safety Commission for its advisory recommendations to
Council.
The proposed ordinance will adopt speed limits on various state highways in the City of Denton. The
State's Transportation Commission can establish a Minute Order (a state law) that would invalidate
any City ordinance of a speed limit posting that is contrary to those proposed by TxDOT. The State
can remove the City's posting and install signs reflecting the Minute Order.
Speed zones are typically established based on engineering investigations. The primary criterion used
in establishing a speed limit is the eighty-fifth percentile (85%) speed. This is established by
performing a speed study and calculating the speed at which the 85th% vehicle is traveling. The 85%
speed is the speed at which a prudent driver, given the type of street, will drive that street under normal
driving conditions. The courts have determined that the 85% is the primary criteria by which a
reasonable speed limit should be established. The speed limit is usually rounded to the 5MPH
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\ I -AIS.doc
increment that is just higher or lower than the 85% (unless the 85% calculated is at a 5MPH
increment). Other factors that can be considered in lowering a speed limit are:
1. Roadway pavement width of 20ft or less,
2. Horizontal and vertical curves,
3. Hidden driveways and other roadside developments,
4. High driveway density,
5. A high crash history,
6. Substantial pedestrian activity,
7. Rural residential or development area and
8. Lack of striped, improved shoulders.
The State of Texas considers the above list of factors as the means of establishing a speed limit up to
IOMPH (12MPH for locations with a crash rate higher than the statewide average) lower than the 85%.
Speed limit studies are typically done when there are moderate volumes that are under generally free-
flow conditions. As such, speed limit studies typically do not include industrial plant let-out times,
school hour drop-off/pick-up times or other such short-term, potentially congested times. Speeds are
generally lower during and because of the congestion and therefore do not reflect the less restricted
conditions the driver is under during most of the day.
A. On January 5, 2005, City Council held a work session in which the background and various issues
were discussed. The City Council asked staff to bring forward an ordinance for all of the state
highways except the following:
a) FM 1515/Airport Road
b) US 380/University Drive
c) FM 1830/Country Club Road
d) FM 2181/Teasley Lane
B. On April 6th 2004, City Council passed ordinance 2004-103 for FM2181/Teasley Lane speeds.
This was done in advance of the other highways at the request of the police and as a result of public
concern about the speed limit on the southern portion of FM2181/Teasley Lane. A part of this
ordinance contained the section of FM2181/Teasley Lane in front of Sam Houston Elementary School.
The ordinance proposed this section to be 45MPH (which was already the posted speed and confirmed
by the most recent TxDOT speed survey).
TxDOT does not allow school zones on a TxDOT highway to be reduced by more than 15MPH from
the posted speed limit. As a result of the passage of the FM2181/Teasley Lane speed limit ordinance
TxDOT changed the speed limit signs for Sam Houston Elementary School from 25MPH to 30MPH.
City staff was not informed by TxDOT of this change until the signs were being replaced. As a result,
staff immediately started working with TxDOT to resurvey this area during the summer of 2004.
TxDOT indicated that they had no record of why, if the current posted speed limit was 45MPH, the
school speed zone was posted at 25MPH (and therefore did not conform to their maximum 15MPH
school zone reduction standards). But, as their standards indicated a maximum of 15MPH differential,
they raised the school zone speed limit to conform. As a result of the resurveys, TxDOT agreed to
lower the speed limit from 500 feet west of Pennsylvania Drive to Lillian Miller Parkway to 40MPH
so that the speed limit could continue to be 25MPH in front of Sam Houston Elementary School.
TxDOT also resurvey the area to the north (Savannah Trail to 500 feet west of Pennsylvania Drive)
and the new survey showed that speed limit should remain at the currently posted 45MPH.
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\1-AIS.doc
Since TxDOT resurveyed this area less than a year ago, it is unlikely that a new survey will result in
any lowering of the speed and could result in a recommendation to raise it. FM2181/Teasley Lane
needs to have an ordinance passed as quickly as possible to secure the school speed zone in front of
Sam Houston Elementary School, since the currently posted 25MPH school speed limit was installed
at the direction of the City's prosecuting attorney in anticipation of the speed limits for this street being
quickly passed by City Council.
As such, staff would request the City Council to reconsider its decision and direct staff to bring this
roadway back for consideration as presented in the January 5, 2005 workshop as quickly as possible.
In so doing, the posted speed limit will then be reflected by an ordinance and then the school zone can
be properly enforced.
At City Council's direction, City staff has requested TxDOT to resurvey
• Airport Rd west of Corbin,
• all of Country Club Rd and
• University from the westerly city limits to 900 feet west of Cindy Lane
This report and the attached ordinance respond to the requests by City Council.
OPTIONS
1. Approve the ordinance
2. Approve the ordinance with conditions
3. Deny approval of the ordinance
RECOMMENDATION
Staff has worked with TXDOT over a period of many years and has finally and successfully convinced
TXDOT to propose lower speed limits on several roads than what they originally proposed. Staff
recommends that in order to resolve any potential timing/delay issues causing unwanted action by
TxDOT and the State of Texas, that the entire ordinance for all of the speed limits for the following
roadways be established:
L FM 426/McKinney Avenue (ATTACHMENT A. L)
A. 30 mph From Locust Street/US 77 to Mack Drive.
B. 45 mph From Mack Drive to Glengary Drive.
C. 55 mph From Glengary Drive to the south/easterly city limits.
H. FM 428/Sherman Drive (ATTACHMENT A. IL)
A. 35 mph From Elm Street/US 77 to Monterrey Drive.
B. 45 mph From Monterrey Drive to Long Road.
C. 55 mph From Long Road to the north/easterly city limits.
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\ I -AIS.doc
III. FM 1173 (ATTACHMENT A. III.)
A. 60 mph From the IH-35 southbound frontage road to the westerly city limits.
IV. FM 2164/N. Locust (ATTACHMENT A. IV.)
A. 45 mph From N. Locust Street/US 77 to Loop 288.
B. 60 mph From Loop 288 to the northerly city limits.
V. III-35E Frontage Road Northbound (ATTACHMENT A. V, VI, VII & VIII.)
A. 50 mph From the southerly city limits to Loop 288.
B. 45 mph From Loop 288 to Oak Street
VI. III-35E Frontage Road Southbound (ATTACHMENT A. V, VI, VII & VIII.)
A. 45 mph From Oak Street to Lillian Miller Parkway.
B. 50 mph From Lillian Miller Parkway to the southerly city limits.
VII. III-35 Frontage Road Northbound (ATTACHMENT A. V, VI, VII & VIII.)
A. 50 mph From Oak Street to Elm Street/US77.
B. 55 mph From Elm Street/US77 to the northerly city limits.
VIII. III-35 Frontage Road Southbound (ATTACHMENT A. V, VI, VII & VIII.)
A. 55 mph From the northerly City limits to Elm Street/US77.
B. 50 mph From Elm Street/US77 to Oak Street.
IX. Loop 288 (ATTACHMENT A. IX.)
A. 35 mph From IH-35E southbound main lanes to Morse Street
B. 50 mph From Morse Street to University Drive/US 380.
C. 60 mph From University Drive/US 380 to IH-35.
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\ I -AIS.doc
X. US 77/Dallas Drive (ATTACHMENT A. X, XI, XII & XII.)
A. 45 mph From IH-35E southbound main-lanes entrance ramp to Teasley Lane/FM
2181.
B. 35 mph From Teasley Lane/FM 2181 to Smith Street
C. 30 mph From Smith Street to Eagle Drive/US 77/Bell Avenue.
XI. US 77/Eagle Drive (ATTACHMENT A. X, XI, XII & XIII.)
A. 30 mph From Dallas Drive/US 77/Bell Avenue to Elm Street/US 77.
XIL US 77/Elm Street (ATTACHMENT A. X, XI, XI & XIII.)
A. 55 mph From the IH-35N southbound frontage road to Donna Road..
B. 45 mph From Donna Road to FM 2164.
C. 35 mph From FM 2164 to Sherman Drive/FM 428.
D. 30 mph From Sherman Drive/FM 428 to Eagle Drive/US 77.
XIII. US 77/Locust Street (ATTACHMENT A. X, XI, XII & XHI.)
A. 30 mph From Eagle Drive/US 77 to Sherman Drive/FM 428.
B. 35 mph From Sherman Drive/FM 428 to Elm Street
XIV. US 377/Ft. Worth Drive (ATTACHMENT A. XIV.)
A. 35 mph From Eagle Drive/US77 to Lindsey Street
B. 45 mph From Lindsey Street to 200 feet south of the T&P Railroad overpass.
C. 50 mph From 200 feet south of the T&P Railroad overpass to Country Club
Drive/FM 1830.
D. 60 mph From Country Club Drive/FM 1830 to the south/westerly city limits.
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\1-AIS.doc
PRIOR ACTION/REVIEW
The Traffic Safety Commission has been in a two year review process considering the speed limit
changes. The Traffic Safety Commission recommended the speed limits to be established, on the
following roadways. Votes were unanimous except for B: VI.a.i. (Dallas Drive).
B: I. September 9, 2002:
B: 1. a. IH-35 Frontage Roads
B: I.b. FM1173
B: I. c. FM2164/N. Locust Street
B: II. March 3, 2003:
B: II.a. Loop288
B: II.b. FM426/McKinney Street
B: III. July 7, 2003:
B: III. a. FM428/Sherman Drive
B: IV. January 5, 2004:
B:IV.a. US77:
B.VI.a.i. Dallas Drive, from 11-13 5E to Eagle Dive/Bell Avenue (6-2, for the portion from
IH35E to Teasley Ln and unanimous for all other portions)
B.VI.a.ii. Eagle Drive, from Dallas Drive/Bell Avenue to Elm Street)
B.VI.a.iii. Elm Street, from IH35N to Eagle Drive
B.VI.a.iv. Locust Street, from Eagle Drive to Elm Street
B: V. May 3, 2004:
B: V.a. US377/Ft Worth Drive
FISCAL INFORMATION
TxDOT will install or replace the necessary signing and posts at its expense.
EXHIBITS
Exhibit I Maps of current and proposed speed limit conditions for:
A: I. FM426/McKinney Avenue from Locust Street/US77 to the southeasterly City limits
A: II. FM428/Sherman Drive from Elm Street/US77 to the northeasterly City limits
A: III. FM 1173 from I1-135 to the easterly City limits
A: IV. FM2164/N Locust Street from US77/Locust Street to the northerly City limits
A: V. IH35E northbound frontage roads, from the southerly City limits to Oak Street
A: VI. IH35E southbound frontage roads, from the southerly City limits to Oak Street
A: VII. IH35 northbound frontage roads, from Oak Street to the northerly City limits
A: VIII. IH35 southbound frontage roads, from Oak Street to the northerly City limits
A: IX. Loop 288 from IH35E to IH35
A: X. US77/Dallas Drive, from IH35E to Eagle Dive/Bell Avenue:
A: XI. US77/Eagle Drive, from Dallas Drive/Bell Avenue to Elm Street:
A: XII. US77/Elm Street, from IH35N to Eagle Drive:
A: XIII. US77/Locust Street, from Eagle Drive to Elm Street:
A: XIV. US377/Ft Worth Drive from Eagle Drive/US77 to the southwesterly City limits
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\ I -AIS.doc
Exhibit 2 Traffic Safety Commission minutes for:
B: I. September 9, 2002:
B: 1. a. IH-35 Frontage Roads.
B: 1. b. FM1173.
B: 1. c. FM2164/N. Locust Street.
B: II. March 3, 2003:
B: II.a. Loop288.
B: II.b. FM426/McKinney Street.
B: III. July 7, 2003:
B: III. a. FM428/Sherman Drive
B: IV. January 5, 2004:
B:IV.a. US77
B.IV.a.i. Dallas Drive, from IH35E to Eagle Dive/Bell Avenue:
B.IV.a.ii. Eagle Drive, from Dallas Drive/Bell Avenue to Elm Street:
B.IV.a.iii. Elm Street, from IH35N to Eagle Drive:
B.IV.a.iv. Locust Street, from Eagle Drive to Elm Street:
B: V. May 3, 2004:
B: V.a. US377/Ft Worth Drive
Exhibit 3 Memo from Charles Wiley, Chief of Police
Exhibit 4 Ordinance
Respectfully submitted:
Jim Coulter, Director
Water and Wastewater Utilities
L:ACC 2005\June 21, 2005\Speed Limit Ordinance\ I -AIS.doc
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Traffic Safety Commission
September 9, 2002
PRESENT: Connie Baker, Silvia Lesko, Harry Phillips, Geof Bissell, Lelia Howell,
Murray Ricks, and Chairman Barry Walters
STAFF: David Salmon, Staff Liaison
Bernard Vokoun, Traffic Engineer
Pat Killebrew, Secretary
Chairman Walters called the meeting to order at 5:30 PM.
ITEM #5: REVIEW AND CONSIDER A REQUEST FROM TXDOT TO
CHANGE THE SPEED LIMIT FOR THE IH-35 SOUTHBOUND
FRONTAGE ROAD FROM US77/N.ELM STREET TO SCHUYLER
STREET FROM 45 MPH TO 55 MPH.
Vokoun said the current speeds on the frontage roads; both north and
south in this area are the same as the recommended speeds. In one small
area on the southbound side, the current speed is 45 mph and the speed
limit survey by the state is recommending 55 mph as a reasonable speed
limit. This section of roadway is essentially rural in nature. There is very
little development in this area and most people are driving 55 mph.
Vokoun said he has researched the ordinance files for that area and cannot
find an ordinance. It is apparently very old and there is not an existing
ordinance for this area.
Staff recommends the Commission forward a recommendation to City
Council that for IH-35 southbound Frontage Roads, a 55 mph speed limit
be established from US 771N. Elm Street to Schuyler Street.
Walters said this area is from Highway 77 at the truck stop going to the
hospital. Vokoun said yes. Walters said there are two major entrances,
FM 1173 at Krum and the Loop 288 turn around that feeds into the
frontage road. Walters asked if a traffic survey for this area had been
done. The cars approaching from FM 1173 are going about 70 mph and it
is difficult to get onto Loop 288. Vokoun said during a speed survey a lot
of data is collected. It determines what a "normal" person would drive in
that area. "Normal" is the 85% percentile. The State's position is that if
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS SEPT 02.doc
Traffic Safety Commission - September 9, 2002
Page 16 of 5
there are items that need to be brought to the attention of the driver, they
should be signed accordingly. For example, if there are intersections to
the right or left, an advance-warning sign is put up advising speeds, but
the speed limit itself is not controlled. Vokoun said the speed limit could
be changed in the future as the area develops, if different speeds are felt to
be needed, staff can request TxDOT to do another speed survey. The
information is also based on current accident reports in the area. Staff
feels this is a reasonable speed for what is in the area today.
Howell asked why on the northbound frontage road, from Oak Street to
Highway 77, the recommended speed is 50 mph and on the southbound
frontage road in the same area, the recommended speed is 55 mph.
Vokoun said the interstate is not connected like a normal highway; it has
the through lanes in between, and the frontage roads are considered as two
separate roadways. Developments, driveway spacing and intersections
can influence what the speed should be. The westerly side is considerably
less developed than the easterly side, and therefore the recommendation.
Howell said she would disagree, because from Oak Street going north on
the frontage road, there really is no development. There is only the bus
station, Highway 380 and the outlet mall, but on the other side there is the
truck stop, Highway 380, and several business places; so the south side is
more developed. Vokoun said there was considerable development in the
area of the mall and the restaurant and several truck stops. On the
westerly side, there is not much development until the hospital, and that is
south of Schuyler Street.
Walters said he was told when Loop 288 was built, that the City had no
control over the speed limit on the frontage roads. It is based on the
Federal and State standards that the speed drops 20 mph from the posted
speed. Is that correct? Vokoun said the City has the ability to work with
the State to look at the limits. The final decision is by the State. If the
City does not agree with the State, and the City imposes something other
than what the State recommends, the State can produce a minute order,
which circumvents the City's ordinance. The State can remove any and
all signs imposed by the City and enforce the State requirement.
Ricks said he could see the speed limit being 55 mph heading south past
Loop 288, but heading north from Loop 288 to Highway 77, there is a
truck stop, convenience store, western wear store, and several intersections
and entrances. He is concerned that someone turning left under the
underpass and going 55 mph might cause some problems. Vokoun said
the intersection is controlled by a multiple stop at the service road. There
was much discussion concerning the various businesses along the frontage
roads.
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS SEPT 02.doc
Traffic Safety Commission - September 9, 2002
Page 17 of 5
Salmon said currently, the speed limit on the southbound service road goes
from 55 mph to 45 mph at Highway 77 and from there to the hospital it
stays 45 mph and then it goes back up to 50 mph. The State has told staff,
based on their studies people are driving at the 85th percentile, north of the
hospital, 55 mph or faster. That's why the State wants to make the speed
limit 55 mph, rather than 45 mph. There was more discussion concerning
the entrances. Walters asked if the State did the study during the rush
hour. Vokoun said he couldn't say which hour the study was done.
Salmon said the State would not change their recommendation unless the
City can provide them with technical data that shows there is a safety
problem, such as accidents or a documented sight distance issue. The City
could also ask the State to break the speed zone into smaller pieces and
have them study the sections individually. Sometimes the State takes a
long section of road and studies it as one piece, when the road actually has
several segments that are different from each other in characteristics. One
example of this is on Elm Street and Locust Street. The State looked at
them as one section from Eagle Drive to University Drive. Driving these
streets on the Square is much different than at either end of these sections.
Staff asked the State to divide Elm Street and Locust Street into about
three sections.
Walters asked if the State was going to change the speed limit anyway
regardless of the Commission's vote. Salmon said the only option the
City has is to ask the State to break the speed zone into pieces and restudy
the areas causing concern. Staff doesn't know if the State checked the
speeds in one of the developed areas or in the undeveloped areas. Walters
said he would feel better, from a safety issue, if they checked the sections
separately. Salmon said he wanted the Commission to understand that
their recommendations would need to be forwarded to the City Council,
and if the City Council voted to keep the speed limit as it is, the State can
override the Council.
Howell said even if the Commission decides that it doesn't agree with the
State and the State overrides the Commission, she would like the State to
realize that the Commission doesn't agree with them. Vokoun asked the
Commission which section specifically they want the State to reconsider.
Is the area in question the area that goes from Highway 77 to Loop 288?
Several members said yes.
Howell made a motion to ask the State to break the speed zone into
pieces and restudy the section from Highway 77 to Loop 288. Phillips
seconded the motion. The motion passed unanimously.
ITEM #6: REVIEW AND CONSIDER A REQUEST FROM TXDOT FOR THE
POSTED SPEED LIMIT FOR FM1173 FROM THE IH-35
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Traffic Safety Commission - September 9, 2002
Page 18 of 5
SOUTHBOUND FRONTAGE ROAD TO THE WESTERLY CITY
LIMITS TO BE ESTABLISHED AT 60 MPH.
Vokoun said the State has reviewed the posted speed limit of 60 mph on
FM1173 from IH-35 to the City limits. People are driving 60 mph, but we
cannot find an ordinance on file that shows the posted speed limit. The
Commission's recommendation to the City Council would allow an
ordinance to be established for the speed limit.
Staff recommends the Commission forward a recommendation to City
Council that for FM 1173, a 60 mph speed limit be established from the
IH-35 southbound Frontage Road to the westerly City limits.
Bissell asked if the posted speed limit was 60 mph. Vokoun said yes.
Walters asked what kind of road is FM1173. Vokoun said 2-lane, rural
road with no shoulders. Walters asked what was the common speed for a
rural road with no shoulders? Vokoun said the 85th percentile determines
the speed. There is no set speed. Ricks said if the speed was already
posted at 60, what does the Commission have to consider? Vokoun said
there is no ordinance showing the speed on the road. The Commission
needs to establish one. Ricks asked if there had been any problems with
running stop signs on the road. Vokoun said there are no signs along the
road, only at the Frontage Road and then in town. Walters said the
railroad track slows down traffic. It is difficult to cross at 60 mph. Ricks
asked if there had been any trouble with deceleration at the Frontage
Road. Vokoun said staff was not aware of any trouble. Vokoun said staff
could request advance-warning signs of the railroad and of stopping at the
Frontage Road.
Walters asked if staff knew the number of accidents on FM1173 between
Krum City Limits and IH-35 Frontage Road. Vokoun said no. Bissell
said the Commission was only considering the section of FM1173
between our City limits and the IH-35. Vokoun said correct; there is a
long section of FM1173 that is under the County's control and the City
has no control over that section. Ricks asked if TxDOT maintains the
signage. Vokoun said yes.
Ricks made a motion to recommend an ordinance be forwarded to City
Council recommending the speed limit of 60 mph for the section of
FM1173 from the Denton City limits to the IH-35 Frontage Road
Lesko seconded the motion.
Howell said since the speed limit is 60 mph coming up to a stop sign at the
Frontage Road, was the State willing to put some speed breaks in that
area. Vokoun said no they are not. Staff asked the State about putting
speed humps on the exit ramp from IH-35 to Dallas Drive and they were
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Traffic Safety Commission - September 9, 2002
Page 19 of 5
opposed to any type of traffic control device that would potentially elevate
a vehicle. Walters said they would put up a warning sign showing the stop
sign was ahead.
Baker, Lesko, Phillips, Ricks, and Walters voted to approve the motion.
Bissell and Howell voted against the motion. The motion passed
ITEM #8: REVIEW AND CONSIDER A REQUEST FROM TXDOT TO
CHANGE THE SPEED LIMIT FOR FM2164/N. LOCUST STREET
FROM FM 2164 TO COBBLESTONE ROAD FROM 35 MPH TO 45
MPH AND FM 2164/N. LOCUST STREET FROM COBBLESTONE
ROAD TO HERCULES LANE FROM 40 MPH TO 45 MPH.
Vokoun said in this section FM 2164 is a two-lane roadway with gently
rolling vertical curves and almost no horizontal curves. A small section is
currently under construction to be widened. There is some development in
the section between FM 2164 and Loop 288 consisting of residential, a
church and a City park.
Staff recommends the Traffic Safe ty Commissions onward a
recommendation to City Council for FM 21641N. Locust Street, a 45 mph
speed limit be established from FM 2164 to Hercules Lane.
Howell said she had driven this area and did not see a problem here.
Lesko made a motion to recommend to the City Council to establish a 45
mph speed limit on FM 2164 from FM 2164 to Hercules Lane. Howell
seconded the motion. The motion passed unanimously.
The meeting adjourned at 6:42 PM.
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS SEPT 02.doc
ATTACHMENT B: 11. a. & b.
Minutes
Traffic Safety Commission
March 3, 2003
PRESENT: Harry Phillips, Connie Baker, Silvia Lesko, Lelia Howell, Georgianne Burlage,
Geof Bissell, and Chairman Barry Walters
STAFF: David Salmon, Staff Liaison
Bernard Vokoun, Traffic Engineer
Ed Snyder, Deputy City Attorney
Pat Killebrew, Secretary
Chairman Walters called the meeting to order at 5:30 p.m.
ITEM #4: REVIEW AND CONSIDER A REQUEST FROM TxDOT FOR THE
POSED SPEED LIMIT FOR LOOP 288.
Vokoun said the map is a little inaccurate. He showed the TSC the corrections.
Vokoun said after considerable conversations with TxDOT, they agreed to reduce
the speed limits as shown on the map. The area on the north side of Loop 288
will be increased to 60 mph, since it is a large, open area. Burlage asked where
the 35 mph area started. Vokoun said at the IH35 southbound frontage road, and
it will stop at Morse Street. Walters said that would help with the increased
traffic from the Denton Crossing area.
Staff recommends that the TSC forward a recommendation to City Council that
or Loop 288:
a) A 35 mph speed limit be established from IH35E to Morse Street,
b) A 50 mph speed limit be established from Morse Street to the centerline of
US380/University Drive, and
c) A 60 mph speed limit be established from the centerline of US380/University
Drive to its terminus at IH35.
Lesko made a motion to accept the TxDOT recommendation as staff proposed
Baker seconded the motion. The motion passed unanimously.
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Traffic Safety Commission - March 3, 2003
Page 2 of 2
ITEM #5: REVIEW AND CONSIDER A REQUEST FROM TxDOT FOR THE
POSTED SPEED LIMIT FOR McKINNEY STREET/FM 426.
Vokoun made a correction to the memo for this item changing the third
bullet from Southfork Street to Glengary Street. Southfork Street is a
private street and Glengary Street is a public street.
McKinney Street/FM 426 is another area that staff was able to get TxDOT
to reconsider their original recommendations and to lower the speed limits,
especially in town and in front of the high school.
Staff recommends that the TSC forward a recommendation to City Council
that for McKinney Street/FM 426.-
a) A 30 mph speed limit be established from Locust Street/US77 to Mack
Street,
b) A 45 mph speed limit be established from Mack Street to Glengary
Street, and
c) A 55 mph speed limit be established from Glengary Street to the south/
Easterly City limits.
Howell made a motion to accept the TxDOT recommendation as staff
proposed. Burlage seconded the motion. The motion passed
unanimously.
The meeting adjourned at 6:23 p.m.
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS MAR 03.doc
ATTACHMENT B : III. a.
Minutes
Traffic Safety Commission
July 7, 2003
PRESENT: Pat Cheek, Murray Ricks, Silvia Lesko, Connie Baker, Harry Phillips, Geof
Bissell, Lelia Howell, and Chairman Barry Walters
STAFF: David Salmon, Staff Liaison
Bernard Vokoun, Traffic Engineer
Pat Killebrew, Secretary
Chairman Walters called the meeting to order at 5:27 p.m.
ITEM #2: REVIEW AND CONSIDER A REQUEST FROM TXDOT FOR THE
POSTED SPEED LIMIT FOR SHERMAN DRIVE/FM 428.
Vokoun stated the current speed limits and reported the limits proposed by
TxDOT for Sherman Drive/FM 428. Vokoun pointed out the current residential
sections and also the few commercial sections on Sherman Drive, along with a
few commercial sections planned for the future. Vokoun said Sherman Drive has
been resurfaced from Locust Drive and the average speed driven on this road is 35
mph+.
Staff recommends the Commission forward a recommendation to the City Council
that for Sherman Drive/FM 428:
a) 35 MPH from Locust Street/US 377 to Monterrey Drive,
b) 45 MPH from Monterrey Drive to Long Road, and
c) 55 MPH from Long Road to the northeasterly City limits.
Walters said the area around the new Natatorium and Water Works on Loop 288
at Sherman Drive causes a problem getting into the parking lot. If the area could
be slowed down for about a block it would be better. The area coming over the
hill is a blind spot. Vokoun said it is possible to work with TxDOT for short
distances. Staff will ask them to extend the 45 mph to the north for a longer
distance.
Cheek made a motion to accept staff's recommendation for Sherman Drive/FM
428. Howell seconded the motion. The motion passed unanimously.
The meeting adjourned at 5:44 p.m.
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS JUL 03.doc
ATTACHMENT B: IV.a.i., ii,. iii. & iv.
Minutes
Traffic Safety Commission
January 5, 2004
PRESENT: Lelia Howell, Pat Cheek, Connie Baker, Linda Brown, Murray Ricks,
Geof Bissell, Harry Phillips, and Co-Chairperson Silvia Lesko.
STAFF: David Salmon, Staff Liaison
Bernard Vokoun, Traffic Engineer
Pat Killebrew, Secretary
Co-Chairperson Lesko called the meeting to order at 5:32 p.m.
ITEM #2: REVIEW AND CONSIDER A REQUEST FROM TXDOT FOR THE
POSTED SPEED LIMIT FOR:
DALLAS DRIVE &
EAGLE DRIVE (FROM BELL AVENUE/DALLAS DRIVE)
TO ELM STREET &
LOCUST STREET (FROM EAGLE DRIVE TO FM 2164) &
ELM STREET (FROM IH35N TO EAGLE DRIVE),
ALL BEING US77.
Vokoun said this should be the last speed study presented to the TSC for
TxDOT streets. This one is also the most complicated. Vokoun said staff
wanted to get the Commissioners' input before going back to TxDOT
staff. Staff would ask TxDOT to re-review this roadway and two
others, the southbound frontage road between Highway 77 and Loop 288,
reducing the speed by about five miles per hour, and University Drive in
the core area increasing the speed limit from 30 MPH to 35 MPH.
Vokoun said the staff report shows that City staff and TxDOT staff have
been through several iterations on this speed study. Staff is not in
agreement with TxDOT on their recommendations. Vokoun pointed out
the original recommendations of TxDOT on the map provided in the back-
up packet. Staff is concerned about the area around the Square and feels
35 MPH is too high due to angled parking and lots of pedestrians. The
second area of concern is around the Eagle Drive/Bell Avenue area. There
is a sharp drop going northbound on Dallas Drive, going under the railroad
bridge, taking a hard right turn and the intersection is right before you.
Staff feels 35 MPH is a bit high for this area and 30 MPH is the speed
limit now and in the future it should remain 30 MPH.
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Traffic Safety Commission - January 5, 2004
Page 24 of 5
After visiting with TxDOT on this issue several times, they finally made a
recommendation to change the area around the Square to 30 MPH and the
area around Eagle Drive/Bell Avenue to 30 MPH.
Staff is still concerned about the Dallas Drive area coming off IH35. The
current speed limit is 45 MPH and the Police give many tickets to drivers
that haven't slowed down enough coming off the interstate. If that area
were changed to 35 MPH, everyone would be getting tickets. Staff would
like to see the speed limit 45 MPH from IH35 to Teasley Lane and then
drop to 35 MPH to about the crest of the hill where it would drop to 30
MPH. Staff would like to see the section in the southern part of Locust
Street increased to 35 MPH. The roadway was resurfaced two years ago
and is very smooth and drives well. After construction is finished on
University Drive, this area would be changed to one-way from University
Drive to Orr Street, northbound on Locust Street and southbound on Elm
Street. There is no heavy commercial action in this area.
Staff recommends that the Traffic Sa ftv Commissions onward a
recommendation to the City Council that for:
• Dallas Drive &
• Eagle Drive (from Bell Avenue/Dallas Drive) to Elm Street &
• Locust Street (from Eagle Drive to FM 2164) &
• Elm Street (from IH35N to Eagle Drive
• All being US77:
a) Dallas Drive, 45 MPH from IH35E to Teasley Lane.
b) Dallas Drive, 35 MPH from Teasley Lane to Smith Street.
c) Dallas Drive, 30 MPH from Smith Street to Eagle DriveBell
Avenue.
d) Eagle Drive, 30 MPH from Dallas Drive/Bell Avenue to Elm
Street.
e) Locust Street, 35 MPH from Eagle Drive to Sycamore Street.
f) Locust Street, 30 MPH from Sycamore Street to Hann Street.
g) Locust Street, 35 MPH from Hann Street to FM 2164.
h) Elm Street 55 MPH from IH35N to Donna Road.
i) Elm Street, 45 MPH from Donna Road to FM 2164.
j) Elm Street, 35 MPH from FM 2164 to Hann Street.
k) Elm Street, 30 MPH from Hann Street to Sycamore Street.
Z) Elm Street, 35 MPH from Sycamore Street to Eagle Drive.
Vokoun asked the Commissioners for their input.
Cheek said she agrees with staff on the Square area, but she hates to see
the speed limit changed so much. She feels like it should be 30 MPH
through town. Locust Street and Elm Street has businesses everywhere
and strange parking. If the speed limit changes every few blocks, people
will be very confused. Brown said it could cause a place for speed traps.
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Traffic Safety Commission - January 5, 2004
Page 25 of 5
Howell said she agrees with Cheek from Eagle Drive to Sherman Drive
should be 30 MPH and then after Sherman Drive the speed limit could
open up. There are not many businesses after that and it will be one-way
and traffic is not as congested. Lesko said she agrees with the 30 MPH
through town. There are areas that 35 MPH is very comfortable, but then
you come to a congested area and the only safe speed is 30 MPH or less.
Howell said she agrees with keeping the 45 MPH coming from IH35 on
Dallas Drive to Teasley Lane, and then dropping to 35 MPH until the crest
of the hill by Auto Zone, and then dropping to 30 MPH for the sharp
curve.
Phillips asked how much coordination with the Police Department does
staff have when making these recommendations. Vokoun said staff has
met with the Police several times and they are in agreement with the
recommendations for the most part. There are some areas where they may
want a 5 MPH difference (either increase or decrease) than what was
recommended, but usually 5 MPH doesn't make too much difference.
Staff would be concerned if it were 10 MPH or more. Phillips said he
feels we have lost the handle on traffic in this City. If more apartments
keep being built before the traffic problem is resolved, we are going to
have a much worse problem in the near future. Phillips feels the City
Council needs to know this.
Howell asked if the speed limit on Locust Street from Eagle Drive to
Sherman Drive were set to 30 MPH, would the same speed limit be on
Elm Street. Vokoun said yes.
Ricks said his only concern with keeping the speed limit on Dallas Drive
from IH35 to Teasley Lane at 45 MPH was the area around Callaway's
Garden Center. That is a real problem area. Drivers are trying to get
across Dallas Drive to the Interstate and with traffic coming from the
Interstate at 45 MPH it's hard to get across. There have been some really
bad accidents there. Ricks said most exits coming off the Interstate are 35
MPH. It would give the people trying to get across more time. It might be
better to go with 35 MPH. Phillips said he agreed. Vokoun said it would
be brought to a vote, and staff would recommend the majority of the vote.
Cheek asked if the entrance/exit at Callaway's Garden Center was written
in stone. It is a crazy layout. Bissell agreed; saying he didn't think the
speed was so much a problem as the intersection itself. Vokoun said there
is a discontinuous frontage road in that area. Ricks said a traffic signal
couldn't be installed there because it would back up traffic coming off the
Interstate. Cheek said she was thinking of closing the driveway. Ricks
said then no one could get in or out of Callaway's Garden Center. Cheek
said drivers could go down to Mervin's and go through the area around the
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Traffic Safety Commission - January 5, 2004
Page 26 of 5
parking lot. Ricks said given what is there, the best thing would be to
slow down the traffic coming off the Interstate. The drivers waiting to
cross Dallas Drive to the Interstate don't anticipate the speed of the traffic
coming off the Interstate. There was some discussion concerning the
speed when exiting the Interstate. Ricks said usually there is an exit ramp
to allow the drivers to slow down before entering the regular traffic.
Phillips asked if there was a sign stating Dangerous Intersection. Vokoun
said there is a liability problem with posting such a sign. There was much
discussion about this particular intersection. Vokoun said Staff does
recognize the problems with this intersection. Staff is working with
TxDOT in the ramp reversal program to find a solution, but it will not be a
near-term solution.
Phillips asked if the speed limit could remain at 35 MPH. Vokoun said
that is what TxDOT has recommended, but staff feels the Police
Department would have a concern if it were to be 35 MPH. Lesko said
she used to drive the ramp every day and she found it very difficult to
slow down since the ramp is a straight shot to Dallas Drive. There is more
of a hazard to slow down because of the cars coming behind you. She said
she would slow down to 55 MPH when the speed limit changed, but to
slow down immediately to 35 MPH on the ramp would be more dangerous
than leaving it at 45 MPH. There was more discussion about the speed
limit at this intersection. Phillips asked staff what was the accident count
for this intersection. Staff did not have the accident count figures
available at this meeting.
Vokoun said this area of the speed study seems to be the area causing the
most concern. He asked for permission to start at the north end of the
speed study obtaining the TSC's opinion on the proposed speed limits and
working toward the south end and this intersection.
Vokoun reiterated the proposed speed limits starting at FM 2164 and
working south to Teasley Lane. Ricks asked if the TSC's
recommendations would make a difference to TxDOT. Would TxDOT
make the speed limits whatever they wanted? Vokoun said TxDOT does
consider the TSC's opinions and they re-review areas of concern. Howell
said even if TxDOT makes the speed limits different from the TSC's
recommendation, it is good to let them hear the TSC's opinion and input.
Lesko asked if there was a motion for the following recommendations:
Locust Street, 30 MPH from Eagle Drive to Sherman Drive/FM428.
Locust Street, 35 MPH from Sherman Drive/FM 428 to FM 2164.
Eagle Drive, 30 MPH from Elm Street to Dallas DriveBell Avenue.
Dallas Drive, 30 MPH from Eagle DriveBell Avenue to Smith
Street.
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Traffic Safety Commission - January 5, 2004
Page 27 of 5
Dallas Drive, 35 MPH from Smith Street to Teasley Lane.
Elm Street 55 MPH from IH35N to Donna Road
Elm Street, 45 MPH from Donna Road to FM 2164.
Elm Street, 35 MPH from FM 2164 to Sherman Drive/FM428.
Elm Street, 30 MPH from Sherman Drive/FM428 to Eagle Drive.
Howell made the motion and Cheek seconded the motion. The
motion passed unanimously.
Cheek made a motion for the speed limit to be 45 MPH from Teasley
Lane to IH35. Bissell seconded the motion.
Baker asked if the staff recommendation was for 45 MPH from Teasley
Lane to IH35. Vokoun said yes. Baker said again that the intersection is
dangerous when trying to cross from the frontage road. Vokoun said the
Commission could address the intersection at a later meeting. The TSC
could ask staff to redesign the intersection, and the designs could be
discussed at another meeting.
Salmon said staff is currently working with TxDOT on the design of IH35
through town. There have been four or five meetings on this intersection.
TxDOT is resigned to take away the exit in the ultimate design of IH35.
The funding may come sooner rather than later. Apparently some of the
money that was to be used for Highway 121 is no longer going to be used
on that project and some of the money may be shifted to the IH35 project.
This would speed up the IH35 project, but it will still be several years
before it is acted upon.
Lesko asked for a vote on the motion to be 45 MPH from Teasley Lane
to IH35. Howell, Brown, Cheek, Baker, Bissell, and Lesko voted yes on
the motion. Ricks and Phillips voted no. The motion was passed
Vokoun verified the speed limits again to be sure all understood and was
in agreement.
Howell requested Staff to bring some ideas to the Commission for the
intersection at Callaway's, crossing Dallas Drive to IH35. Vokoun said
staff would be happy to bring some designs to the Commission.
The meeting was adjourned at 6:23.
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS JAN 04.doc
ATTACHMENT B: V.a.
Minutes
Traffic Safety Commission
May 3, 2004
PRESENT: Connie Baker, Silvia Lesko, Geof Bissell, Harry Phillips, and Chairman
Barry Walters.
STAFF: David Salmon, Staff Liaison
Bernard Vokoun, Traffic Engineer
Pat Killebrew, Secretary
Chairman Walters called the meeting to order at 5:30 p.m.
ITEM #2: REVIEW AND CONSIDER A REQUEST FROM TXDOT FOR THE
POSTED SPEED LIMIT FOR FORT WORTH DRIVE/US 377.
Vokoun said he met with the TxDOT representative to go over all the
previous speed studies and realized he had not presented Fort Worth
Drive/US 377 to the TSC. Vokoun said the City's ordinances are so old
that the city limits have expanded a lot since these were written. Vokoun
explained the following present speed limits and the TxDOT
recommendations:
• (Currently 30 MPH from Eagle Drive/US 77 to Carroll Boulevard and
currently 35 MPH from Carroll Boulevard to Lindsey Street) BE
ESTABLISHED AS 35 MPH FROM EAGLE DRIVE/US 77 TO
LINDSEY STREET.
• (Currently 35 MPH from Lindsey Street to Acme Street and 40 MPH
from Acme Street to 200 feet south of the T&P Railroad overpass) BE
ESTABLISHED AS 45 mph FROM LINDSEY STREET TO 200
FEET SOUTH OF THE T&P RAILROAD OVERPASS.
• (Currently 45 MPH from 200 feet south of the T&P Railroad overpass
to 300 feet south of James Street) BE ESTABLISHED AS 50 MPH
FROM 200 FEET SOUTH OF THE T&P RAILROAD OVERPASS
TO COUNTRY CLUB DRIVE/FM 1830.
• (Currently 50 MPH from 300 feet south of James Street to 1200 feet
north of the S&F Railroad overpass and 55 MPH from 1200 feet north
of the S&F Railroad overpass to 300 feet south of the S&F Railroad
overpass and currently posted as 65 MPH [no current City ordinance]
from 300 feet south of the S&F Railroad overpass to the southwesterly
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS MAY 04.doc
Traffic Safety Commission - May 3, 2004
Page 29 of 2
City limits) BE ESTABLISHED AS 60 mph FROM COUNTRY
CLUB DRIVE/FM 1830 TO THE SOUTHWESTERLY CITY
LIMITS.
Vokoun said he was driving this area while checking a complaint close to
Fort Worth Drive/US 377, and the speed limits should not be a problem.
At night there is not a lot of traffic and during the day there is much traffic
and the speed limits cannot be obtained due to this traffic. Vokoun said he
would answer any questions the Commissioners might have.
Walters asked if there was anyone speaking for or against the proposal.
There was no one and the discussion was closed to the public.
Phillips said it seems to him that for any two-lane highway in Denton
County, 60 MPH seems too fast. Vokoun said signals have been installed
at Daniel Street and also at Country Club Road/FM 1830. This helps with
traffic considerably. Phillips said the traffic is terrible in this area.
Everyone agreed. Vokoun said that was why he was driving the area, to
be sure the signal was working properly and the traffic flow was efficient.
Staff recommends that the Traffic Safety Commission forward a
recommendation to the City Council that for Fort Worth Drive/US 377:
a) 35 MPH, from Eagle Drive/US 77 to Lindsey Street,
b) 45 MPH, from Lindsey Street to 200 Feet south of the T&P Railroad
overpass,
c) 50 MPH, from 200 feet south of the T&P Railroad overpass to
Country Club Drive/FM 1830, and
d) 60 MPH, from Country Club Drive/FM 1830 to the southwesterly City
limits.
Lesko made a motion to recommend to City Council the above changes
as recommended by TxDOT and staff. Bissell seconded the motion.
Walters asked if there was any discussion. Phillips said he still feels 60
MPH is too fast. Walters said we are in the same situation as before.
TxDOT makes the final decision on the speed limits for state-controlled
roadways. Vokoun said the developments in this area are growing quickly
and more speed studies will be recommended to TxDOT as the area
continues to grow in the next couple of years. Vokoun recommended the
Commissioners keep these areas in their minds and as the need arises to
recommend to staff that a new speed study be performed; not only in this
area but all areas around Denton as they are developed.
The motion passed unanimously.
The meeting adjourned at 5:54 p.m.
L:ACC 2005\June 21, 2005\Speed Limit OrdinanceAMINS MAY 04.doc
pp41CE pEp
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-1bCDM
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DENT
ON
DEPARTMENT OF POLICE
601 E. HICKORY STREET, SUITE E • DENTON, TEXAS 76205 • 940-349-8181 • FAX 940-349-7966
MEMORANDUM
DATE: April 26, 2005
TO: Bud Vokoun, Engineering Dept.
FROM: Charles Wiley, Chief of Police Z-C~
SUBJECT: Speed Limits
The Police Department has reviewed the proposed speed limits for state roads in the
city limits set by TXDOT speed surveys. We agree with the proposed speed limits
and are in favor of their approval.
We also support accepting the proposed speed limits for Teasley Lane without
further review. At our request, TXDOT reviewed the speed limits on Teasley in
June of 2004 and lowered the speed limits at that time.
`Dedicated to Quality Service"
www.cityofdenton.com
EXHIBIT 3
S:\Our Documents\0rdinanees\05\speed zonesFirstApproved. doe
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING CHAPTER 18 OF
THE CODE OF ORDINANCES BY ADDING SECTION 18-73; ALTERING THE PRIMA
FACIE SPEED LIMITS ESTABLISHED FOR VEHICLES UNDER THE PROVISION OF
TRANSPORTATION CODE, SECTION 545.356 UPON THE FOLLOWING ROADWAYS
OR PARTS THEREOF, WITHIN THE INCORPORATE LIMITS OF THE CITY OF
DENTON; PROVIDING A PENALTY NOT TO EXCEED $200.00 UNLESS THE
VIOLATION OCCURS IN A WORK ZONE AND THEN THE PENALTY SHALL NOT
EXCEED $400.00; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A REPEALING
CLAUSE; PROVIDING FOR PUBLICATION; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, Section 545.356 of the Texas Transportation Code provides that whenever
the governing body of the City shall determine upon the basis of an engineering and traffic
investigation that any prima facie speed therein set forth is greater or less than is reasonable or
safe under the conditions found to exist at any intersection or other place or upon any part of a
street or highway within the City, taking into consideration the width and condition of the
pavement and other circumstances on such portion of said street or highway, as well as the usual
traffic thereon, said governing body may determine and declare a reasonable and safe prima facie
speed limit thereat or thereon by the passage of an ordinance, which shall be effective when
appropriate signs giving notice thereof are erected at such intersection or other place or part of
the street or highway; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of
Denton, Texas is hereby amended by adding Section 18-73 regulating speed of vehicles on
Teasley Lane. Section 18-73 shall read as follows:
Sec. 18-73. Speed limits on certain roads and highways.
Upon the basis of an engineering and traffic investigation heretofore made as authorized by the
provisions of Transportation Code, Section 545.356, the following prima facie speed limits
hereafter indicated for vehicles are hereby determined and declared to be reasonable and safe;
and such speed limits are hereby fixed at the rate of speed indicated for vehicles traveling upon
the named streets and highways, or parts thereof, described as follows:
1. FM 426/McKinney Avenue
A. 30 mph From Locust Street/US 77 to Mack Drive.
B. 45 mph From Mack Drive to Glengary Drive.
C. 55 mph From Glengary Drive to the south/easterly city limits.
EXHIBIT 4
S:\Our Documents\0rdinanees\05\speed zonesFirstApproved. doe
II. FM 428/Sherman Drive
A. 35 mph From Elm Street/US 77 to Monterrey Drive.
B. 45 mph From Monterrey Drive to Long Road.
C. 55 mph From Long Road to the north/easterly city limits.
III. FM 1173
A. 60 mph From the IH-35 southbound frontage road to the westerly city
limits.
IV. FM 2164/N. Locust
A. 45 mph From N. Locust Street/US 77 to Loop 288.
B. 60 mph From Loop 288 to the northerly city limits.
V. IH-35E Frontage Road Northbound
A. 50 mph From the southerly city limits to Loop 288.
B. 45 mph From Loop 288 to Oak Street.
VI. IH-35E Frontage Road Southbound
A. 45 mph From Oak Street to Lillian Miller Parkway.
B. 50 mph From Lillian Miller Parkway to the southerly city limits.
VII. IH-35 Frontage Road Northbound
A. 50 mph From Oak Street to Elm Street/US 77.
B. 55 mph From Elm Street/US 77 to the northerly city limits.
VIII. IH-35 Frontage Road Southbound
A. 55 mph From the northerly city limits to Elm Street/US 77.
B. 50 mph From Elm Street/US 77 to Oak Street.
IX. Loop 288
A. 35 mph From IH-35E southbound main lanes to Morse Street.
Page 2 of 4
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B. 50 mph From Morse Street to University Drive/US 380.
C. 60 mph From University Drive/US 380 to IH-35.
X. US 77/Dallas Drive
A. 45 mph From IH-35E southbound main-lanes entrance ramp to Teasley
Lane/FM 2181.
B. 35 mph From Teasley Lane/FM 2181 to Smith Street.
C. 30 mph From Smith Street to Eagle Drive/US 77/Bell Avenue.
XI. US 77/Eagle Drive
A. 30 mph From Dallas Drive/US 77/Bell Avenue to Elm Street/US 77.
XII. US 77/Elm Street
A. 55 mph From the H-1-35N southbound frontage road to Donna Road.
B. 45 mph From Donna Road to FM 2164.
C. 35 mph From FM 2164 to Sherman Drive/FM 428.
D. 30 mph From Sherman Drive/FM 428 to Eagle Drive/US 77.
XIII. US 77/Locust Street
A. 30 mph From Eagle Drive/US 77 to Sherman Drive/FM 428.
B. 35 mph From Sherman Drive/FM 428 to Elm Street.
XIV. US 377/Ft. Worth Drive
A. 35 mph From Eagle Drive/US77 to Lindsey Street.
B. 45 mph From Lindsey Street to 200 feet south of the T&P Railroad
overpass.
C. 50 mph From 200 feet south of the T&P Railroad overpass to Country
Club Drive/FM 1830.
D. 60 mph From Country Club Drive/FM 1830 to the south/westerly city
limits.
Page 3 of 4
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SECTION 2. That any person violating any provision of this ordinance shall, upon
conviction, be fined a sum not to exceed Two Hundred Dollars ($200.00), unless the violation
occurs in a work zone and then the penalty shall not exceed Four Hundred Dollars ($400.00).
SECTION 3. That if any section, subsection, paragraph, sentence, clause, phrase, or
word in this ordinance, or application thereof to any person or circumstance is held invalid by
any court of competent jurisdiction, such holding shall not affect the validity of the remaining
portions of this ordinance, the City Council of the City of Denton, Texas, hereby declares that
they would have enacted such remaining portions despite any such invalidity.
SECTION 4. That all provisions of the ordinances of the City of Denton in conflict with
the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of
the City of Denton, not in conflict with the provisions of this ordinance, shall remain in full force
and effect.
SECTION 5. That this ordinance shall become effective fourteen (14) days from the date of
its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be
published twice in the Denton Record-Chronicle, the official newspaper of the City of Denton,
Texas, within ten (10) days of the date of its passage.
PASSED AND APPROVED this the day of 12005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY: =
Page 4 of 4
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Finance
ACM: Kathy DuBose
SUBJECT
Consider a resolution approving the fiscal year 2006 Financial Plan of the Denco Area
9-1-1 District, pursuant to the Texas Health and Safety Code, Chapter 772, as amended;
and providing an effective date.
BACKGROUND
On May 19, 2005 the City of Denton received a memo from Mike Pedigo, Executive
Director of the Denco Area 9-1-1 District, requesting we review their "Draft" fiscal year
2006 Financial Plan.
The Texas Health and Safety Code require emergency communication districts to submit
the draft budget to its participating jurisdictions for a 45-day review and comment period.
For your review, a copy of the "Draft" Financial Plan is attached to the Resolution.
FISCAL INFORMATION
There are no costs to the City of Denton directly associated with the approval of the
Denco Area 9-1-1 District's Financial Plan.
EXHIBITS
Memo from Mike Pedigo
Resolution
"Draft" Financial Plan
Respectfully submitted:
7~~ - , u &se
Kathy DuBose
Assistant City Manager
DENCO AREA 9-1-1 DISTRICT
•
P.O. Box 293058, Lewisville, Texas 75029-3058
Phone/TTY: 972-221-0911 • FAX: 972-420-0709 • Web Page: www.denco.org
To: Denco Area 911 District Participating Jurisdictions
Date: May 19, 2005
Subject: Denco Area 911 District Fiscal Year 2006 Financial Plan
Enclosed is a copy of the "Draft" Denco Area 9-1-1 District Fiscal Year 2006 Financial
A Plan for your jurisdiction's review and comment. The Texas Health and Safety Code
requires emergency communication districts to submit the draft budget to its
participating jurisdictions for a 45-day review and comment period. After the review and
comment period, the district's board of managers adopts a budget for the next fiscal
year. A copy of the statute and approval policy is included in Section 5 of the draft plan.
At its May 19, 2005 regular meeting, the Denco Area 9-1-1 District Board of Managers
unanimously approved the enclosed "draft" financial plan for fiscal year 2006. The
district requests that your jurisdiction review the fiscal year 2006 proposed budget and
submit comments to the Denco board prior to July 21, 2005. At its regular meeting on
July 21, 2005, the Denco board will consider final approval of the Denco Area 9-1-1
District Fiscal Year 2006 Financial Plan. At that time the board will consider responses
on the draft budget.
If the district does not receive a response from individual jurisdictions, it will consider,
according to statute, that those jurisdictions support the draft budget.
Please fax responses to (972) 420-0709 or mail them to P.O. Box 293058, Lewisville,
Texas 75029-3058.
Additional copies of the 2006 financial plan can be downloaded from Denco's website,
www.denco.org. If you need additional information or have any questions, please do
not hesitate to call me at (972) 221-0911.
Thanks for your continued support of the Denco Area 9-1-1 District.
~O i%
X
Michael L. Pedigo, Executive Director
Enclosure
1075 Princeton Street, Lewisville, Texas 75067
RESOLUTION NO.
A RESOLUTION APPROVING THE FISCAL YEAR 2006 FINANCIAL PLAN OF THE
DENCO AREA 9-1-1 DISTRICT, PURSUANT TO THE TEXAS HEALTH AND SAFETY
CODE, CHAPTER 772, AS AMENDED; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Council of the City of has been
presented the Fiscal Year 2006 Financial Plan of the Denco Area 9-1-1 District for
approval, in accordance with section 772.309 Texas Health and Safety Code, as
amended;
NOW, THEREFORE, THE COUNCIL OF THE CITY OF ,
TEXAS HEREBY RESOLVES:
SECTION I. That the City of hereby approves
the financial plan.
SECTION II. That this resolution shall become effective immediately from and
after its passage.
PASSED AND APPROVED this day of , 2005.
City of , Texas.
By:
Mayor
ATTEST:
City Secretary
S:\Dur DocumentsTiscal & Municipal (Finance)\Resolutions\911 2006 Budgetdoc
RESOLUTION NO.
A RESOLUTION APPROVING THE FISCAL YEAR 2006 FINANCIAL PLAN (BUDGET)
OF THE DENCO AREA 9-1-1 DISTRICT, PURSUANT TO TEXAS HEALTH & SAFETY
CODE §772.309 AS AMENDED; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council of the City of Denton has been presented the 2006 Draft
Financial Plan (Budget) of the Denco Area 9-1-1 District for approval, in accordance with Tex.
Health & Safety Code §772.309 (Vernon 1999) as amended; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES:
SECTION 1. The City Council of the City of Denton hereby approves the 2006 Fiscal
Year Draft Financial Plan (Budget) of the Denco Area 9-1-1 District attached to this Resolution.
SECTION 2. This Resolution 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:
DENCO AREA 9,m I mI DISTRICT
FISCAL YEAR 2006
FINANCIAL PLAN
Denco Area 9-1-1 District
Fiscal Year 2006
Financial Plan
Denco Area 9-1-1 District
Fiscal Year 2006
Financial Plan
Section 1
Preface
DENCO AREA 9-1-1 DISTRICT
P.O. Box 293058, Lewisville, Texas 75029-3058
Phone/TTY: 972-221-0911 • FAX: 972-420-0709 • Web Page:
www.denco.org
gp_
To: Denco Area 9-1-1 District Participating Jurisdictions
Date: May 19, 2005
Subject: Denco Area 9-1-1 District Fiscal Year 2006 Financial Plan
The Denco Area 9-1-1 District's Board of Managers, at its May 19, 2005 regular meeting,
approved the "Draft" Denco Area 9-1-1 District Fiscal Year 2006 Financial Plan and
authorized district staff to forward it to all participating jurisdictions for consideration. I ask
that your participating jurisdiction review the following budget and provide the Board of
Managers with your comments prior to its next meeting on July 21 st
You will note that Denco plans to provide continued state-of-the-art emergency
communication services over the next fiscal year, and the four to follow, at the same rate
that it has charged since 1988. The District is fortunate to be able to provide excellent
services to its constituents at one of the lowest rates in the State of Texas primarily
because of both population growth and sound financial planning and management.
The following budget not only provides 9-1-1 callers, using currently available wireline
and wireless telephone services, with rapid and accurate processing of emergency calls,
but also includes funds, set aside over the next five years, to implement services that are
being designed to process Voice over Internet Protocol (VoIP) 9-1-1 calls. The Next
Generation 9-1-1 System will be primarily a managed data network that will convert voice
to data. Denco is very much involved at the current time in the design and planning for
future 9-1-1 network architecture.
In addition to planning for future systems, the District is in the process of implementing a
redundant wireless network that will be advantageous to the security of the current
environment. The first phase of the system is the construction of a communication tower
that will be necessary in the provision of the back-up network. The District is participating
in a joint venture with both the City of Lewisville and Denton County in funding this
project. The wireless equipment will be installed over the next three fiscal years, with the
backbone being installed in fiscal year 2006. The wireless network will accommodate
both today's needs and provide significant bandwidth required for future systems.
The Denco Area 9-1-1 District is here to serve its member jurisdictions with the best 9-1-1
system available. Please feel free to call on any of its board members or executive
director, Mike Pedigo, if you have any questions or need further explanation of the
information provided in this "Draft" Denco Area 9-1-1 District Fiscal Year 2006 Financial
Plan.
The Denco Area 9-1-1 District Board of Manager and Staff appreciate your support and
confidence.
Jack Miller
Chairman, Board of Managers
1075 Princeton Street, Lewisville, Texas 75067
DENCO AREA 9-1-1 DISTRICT
•
P.O. Box 293058, Lewisville, Texas 75029-3058
Phone/TTY: 972-221-0911 • FAX: 972-420-0709 • Web Page: www.denco.org
To: Denco Area 9-1-1 District Participating Jurisdictions
Date: May 19, 2005
Subject: Denco Area 9-1-1 District Fiscal Year 2006 Financial Plan
Enclosed is a "draft" copy of the Denco Area 9-1-1 District Fiscal Year 2006 Financial Plan for
your jurisdiction's consideration. Chapter 772.300, Texas Health and Safety Code, requires
emergency communication districts to send a draft budget to participating jurisdictions seeking
comments. After a 45-day review and comment period, the district's board of managers will
consider approval of a final budget for fiscal year 2006, beginning October 1, 2005.
Denco's draft financial plan provides for the continued provision of state-of-the-art enhanced
9-1-1 services at the same rate that Denco has collected from district residents since its inception
in 1987. The emergency service fee, collected by wireline telephone service providers is $0.27
per month for residential, $0.71 per month for business service and $1.13 per month for PBX
trunks. This fee is equal to three percent of the 1987 base telephone rate. Denco continues to
provide excellent services to its member jurisdictions at one of the lowest rates in the state. In
addition to the emergency service fee collected by local telephone service providers, the State of
Texas collects $0.50 per month per wireless telephone. Those fees are remitted to the state. The
state then sends a portion of the wireless fund to Denco based on the district's percent of the total
population of Texas. The 9-1-1 emergency service fees are the primary sources of revenue that
support operations of the Denco Area 9-1-1 District, representing 98.9 percent of the budget.
The 76th Texas Legislature passed House Bill 1984 which defined the budget approval process
for Chapter 772.300 series emergency communication districts. The following documents are
included in Section 5, the Appendix of this financial plan, defining the policies and procedures as
well as the statute under which the district operates:
■ A copy of the Denco Area 9-1-1 District Mission, Values and Goals Statement.
■ A copy of the section in House Bill 1984 that pertains to budget approval.
■ A copy of a resolution approved by the Denco Area 9-1-1 District Board of Managers
defining procedures for consideration and approval of a budget.
■ A copy of the budget approval policy resolution that provides for amending the approved
budget.
■ A copy of Texas Health and Safety Code, Chapter 772.300; the statute under which
Denco operates.
Even though it is not required for your governing body to vote on the budget, Denco requests that
you review the budget and provide feedback prior to the July 21, 2005 district board of managers'
meeting. At that time the board will approve a final budget for fiscal year 2006. If there are no
changes to the draft budget, the district will notify its members that the budget is approved. If
there are any changes, the district will request each jurisdiction to approve the final budget and a
copy of that budget will be sent to the governing bodies of participating jurisdictions for
consideration.
If, at any time, you have any questions or would like additional information, please do not hesitate
to call me at (972) 221-0911. Thanks for your continued support of the Denco Area 9-1-1 District.
Michael L. Pedigo, Executive Director
1075 Princeton Street, Lewisville, Texas 75067
Denco Area 9-1-1 District
Fiscal Year 2006
Financial Plan
Section 2
District Overview
DENCO AREA 9-1-1 DISTRICT
District Overview
Background Information
What is E9-1-1?
Enhanced Nine-One-One (E9-1-1) is a single, easy-to-remember number
used when reporting emergencies to fire, police and emergency medical service
providers. The E9-1-1 system, operational in the Denco Area 9-1-1 District, is
designed to automatically route any 9-1-1 call, placed from a telephone
instrument (including wireless) within the district's geographical boundaries, to
the proper public safety answering point (PSAP) responsible for dispatching
emergency services to the caller.
9-1-1 Terminology
9-1-1 (Nine-one-one). A designated easy-to-remember, easy-to-dial, three-digit
emergency telephone number developed to provide citizens with a reliable, fast
and convenient way to access fire, police, or medical service in the event of an
emergency.
District (Denco Area 9-1-1 District). The entity that provides enhanced 9-1-1
service in Denton County. A board of managers, appointed by participating
jurisdictions, governs the district. The district serves Denton County and all of the
City of Carrollton.
District Overview May 19, 2005
E9-1-1 (Enhanced 9-1-1). The system that is operational in Denton County
providing SR, ANI and ALI (defined below).
GIS (Geographic Information Systems). The technology used to develop the
mapped display of Denton County.
PSAP (Public Safety Answering Point). The location of the equipment used to
answer 9-1-1 emergency calls. The following are the twelve (12) PS-Ps that are
currently capable of answering 9-1-1 calls in the Denco Area 9-1-1 District:
City of Carrollton Police Department City of Lake Dallas Police Department
City of Denton Police Department City of Lewisville Police Department
Denton County Sheriffs Office City of The Colony Policy Department
Town of Flower Mound Police Department University of North Texas Police Department
City of Highland Village Police Department Texas Woman's University Police Department
City of Roanoke Police Department Denco Backup and Training PSAP
VoIP (Voice over Internet Protocol). The technology that provides telephone
services over computer networks. The service may not provide any or all of the
features of E9-1-1. Subscribers should check with their vendor to determine the
level of 9-1-1 services available.
SR. (Selective Routing). The system that provides automatic routing of 9-1-1
calls, based on the caller's location, to the appropriate PS-P. The caller is not
required to determine which public safety agency to call.
2
District Overview May 19, 2005
ANI (Automatic Number Identification). The feature that provides the caller's
telephone number on a console at the PSAP.
ALI (Automatic Location Identification). The feature that provides the caller's
name and address on a computer monitor at the PSAP.
Database. The information accompanying a 9-1-1 call at the PSAP. The
information provided is the caller's name, address and telephone number, as well
as the emergency service providers designated to respond to the caller's address.
Public Safety Telecommunicator. The individual answering the 9-1-1 calls;
trained to communicate with persons seeking emergency assistance and with
agencies and individuals providing such assistance.
Phase L The Federal Communication Commission (FCC) mandate to the wireless
telephone industry and 9-1-1 requiring the proper routing of wireless 9-1-1 calls
to PSAPs and the provision of the callers' ANI to the telecommunicators.
Phase II. The feature that provides the approximate geographic location of
wireless callers, in addition to the FCC's Phase I enhancements.
3
District Overview May 19, 2005
IWS (Integrated Workstation). The computerized 9-1-1 answering equipment
provided by Denco that provides, in addition to the 9-1-1 function, dispatcher
tools such as computer-aided dispatch, paging, mapping and radio
communications. Denco has 56 integrated workstations at its 12 PSAPS.
Benefits of E9-1-1
The E9-1-1 system has enhanced the ability of emergency service
providers to save the lives and property of citizens in the Denco Area 9-1-1
District. Some of the direct benefits of the emergency communication system
provided by Denco are the following:
• Only one three-digit number to remember in an emergency
situation.
• The 9-1-1 call is routed to the proper agency responsible for
dispatching help to the caller.
• Trained telecommunicators answer 9-1-1 calls. (In the Denco Area
9-1-1 District, telecommunicators are trained to provide emergency
medical dispatch, thus reducing response time for medical
emergencies.)
• Telecommunicators have the equipment and training necessary to
communicate with hearing/speech impaired callers.
• The caller's name, address and telephone number, as well as the
proper fire, police and emergency medical service designated to
4
District Overview May 19, 2005
respond to the caller's address, is automatically provided to the
telecommunicator; thus reducing total response time. In the event
the caller is unable to speak, the telecommunicator has the ability
to dispatch help to the caller's location that is provided by the
E9-1-1 system.
• ANI/ALI information provides a means to control and reduce
prank calls.
• The public education programs associated with E9-1-1 promote
citizen awareness and involvement with emergency service
providers.
• The E9-1-1 system enhances local government's ability to meet the
ever-growing public expectation of emergency services created by
the media and popular television programming.
• The E9-1-1 system is designed to allow PSAPs the ability to
directly transfer a caller to another public safety agency or poison
control center.
• The E9-1-1 system will identify calls from wireless phones,
advising the telecommunicator to ask proper questions to
determine the location of the emergency. Phase I provides the
caller's telephone number so that the telecommunicator has the
ability to reconnect if the call is terminated. Phase II provides
additional location information to telecommunicators.
5
District Overview May 19, 2005
• The system has the ability to identify telephone companies serving
9-1-1 callers, thus streamlining the process for reconciling routing
and database errors.
Formation of the Denco Area 9-1-1 District
Legislation
During its 1985 legislative session, the 69th Texas Legislature passed
Article 1432e (Section 772, Texas Health and Safety Code), Emergency
Telephone Number Act, which provided for the creation, administration,
expansion, funding and dissolution of emergency communication districts in
certain counties in Texas. The Emergency Telephone Number Act is the
legislation under which the Denco Area 9-1-1 District operates.
Purpose
Section 772.302, Texas Health and Safety Code states the purpose of the
Act to be the following:
"To establish the number 9-1-1 as the primary emergency
telephone number for use by certain local governments in this state
and to encourage units of local governments and combinations of
those units of local government to develop and improve emergency
communication procedures and facilities in a manner that will
make possible the quick response to any person calling the
telephone number 9-1-1 seeking police, fire, medical, rescue and
other emergency services. "
6
District Overview May 19, 2005
Creation of Denco Area 9-1-1 District
On August 8, 1987, Denton County held a special election to confirm the
creation of the Emergency Communication District of Denton County and
authorize a 9-1-1 emergency service fee, not to exceed three (3%) percent of the
base rate of the principal service supplier per month, to be charged by the district
for the purpose of establishing and maintaining E9-1-1 in Denton County. By a
margin of 13,086 to 3,024, the voters favored the creation of the emergency
communication district. After the special election, the city and county governing
bodies within Denton County passed resolutions of participation. The resolutions
stated that the city or county would become a participating jurisdiction in the
district pursuant to the provisions of the Emergency Telephone Number Act.
The participating jurisdictions of the district are the following:
Argyle Hackberry Little Elm
Aubrey Hebron Marshall Creek
Bartonville Hickory Creek Northlake
Carrollton Highland Village Oak Point
Clark Justin Pilot Point
Copper Canyon Krugerville Ponder
Corinth Krum Roanoke
Corral City Lake Dallas Sanger
Cross Roads Lakewood Village Shady Shores
Denton Lewisville The Colony
Double Oak Lincoln Park Trophy Club
Flower Mound Unincorporated Denton County
On December 8, 1987, the district's board of managers ordered the levy
and collection of the emergency fee to commence with the January 1988 billing
cycle. The board ordered the service fee, collected by the telephone companies, to
be charged at a rate of three (3%) percent of the base rate of GTE Southwest. The
7
District Overview May 19, 2005
emergency service fee for basic levels of telephone service charged to customers
in the district was capped at $.27 for residential customers, $.71 for business
customers and $1.13 for trunks. (The same cap remains in effect today.) On
June 28, 1988, the board of managers named the Emergency Communications
District of Denton County, Denco Area 9-1-1 District.
Organizational Structure
The board of managers is the governing body for the Denco Area 9-1-1
District. The county, participating cities and the Denton County Fire Chiefs
Association appoint the board. Board members serve staggered two-year terms
and are eligible for reappointment. The current board of managers is made up of
the following members:
Board Member Represents
Mr. Jack Miller, Chair Denton County Commissioners Court
Mayor Olive Stephens, Vice Chair Participating Cities
Mr. Harlan Jefferson, Secretary Participating Cities
Mr. Lewis Jue Denton County Commissioners Court
Chief Lonnie Tatum Fire Chiefs Association
Mr. Keith Stephens Verizon, Advisory
The Emergency Telephone Number Act states, "the board shall manage,
control and administer the district. The board may adopt rules for the operation of
the district." The legislation also allows the board to appoint a director of
communications for the district who serves as its general manager. The director,
8
District Overview May 19, 2005
with approval from the board, provides for the service necessary to carry out the
purposes of the Emergency Telephone Number Act.
The Denco Area 9-1-1 District's staff is responsible for performing all the
duties that may be required for the district to accomplish its mission within the
framework provided by the board. The "Draft" Denco Area 9-1-1 District Fiscal
Year 2006 Financial Plan provides for eleven full time staff members that provide
the planning, operations and maintenance functions for the district. The
organizational structure of the district includes three direct service program areas
that serve the 9-1-1 PSAPs and emergency service providers within the district.
Included in the organizational chart are names of staff members in each program
area.
Board of Managers
Mike Pedigo
Executive Director
rCarla Flowers
ine ss Manager
atty ross Mark Payne David Connel
Public Education) 9 Systems Information
Training Manager s Systems
M
Maria er Man ager
Sandy Arnesen Clint Cranford New Lann
Orender Kan
dy Tones
Public Education 9-1-1 Systems 9-1-1 Systems Vanessa Feagins ddressing Information Systems
Training GIS Coordinator
Assistant Technician Technician d nator Secretary
9
District Overview May 19, 2005
Mission, Values and Goals
Mission
The mission of the Denco Area 9-1-1 District is to provide an
efficient, effective enhanced 9-1-1 emergency telecommunications system
that assists its member jurisdictions in responding to police, fire and
medical emergency calls.
Values
The Denco Area 9-1-1 District pledges to uphold the following values:
Value 1: Control of district operations is the responsibility of
member jurisdictions and the board of managers.
Value 2: The district will provide the most reliable, efficient, cost-
effective and proven state-of-the-art technologies available
at the lowest service fee rate possible.
Goals
The Denco Area 9-1-1 District has the following goals that support its
endeavor to carry out its mission.
Goal 1: To represent the interests of member jurisdictions,
emergency service providers and users in establishing the
Denco Area 9-1-1 District mission, values, goals and
objectives.
10
District Overview May 19, 2005
Goal 2: To manage the Denco Area 9-1-1 District in an objective,
efficient, effective and responsive manner.
Goal 3: To increase public awareness of 9-1-1 issues and promote
the proper use of the 9-1-1 system.
Goal 4: To provide training programs that enable Public Safety
Answering Point (PSAP) personnel to effectively process
9-1-1 calls.
Goal 5: To provide and maintain a dependable, state-of-the-art
enhanced 9-1-1 system.
Goal 6: To assure that PSAPs have the most accurate, reliable and
useable data at all times.
11
Denco Area 9-1-1 District
Fiscal Year 2006
Financial Plan
Section 3
Financial Plan Summary
Summary of Cost Classifications
DENCO AREA 9-1-1 DISTRICT
Fiscal Year 2006 Financial Plan Summary
Strategic Overview
Recent changes in technology and the telecommunication industry, the
regulatory and legislative environments and homeland security have required the
District to examine its plans for the next few years and make some strategic
decisions. At a strategic planning workshop in March 2005, the Denco Area 9-1-1
District Board of Managers were presented with a list of challenges facing the
organization in the next few years that needed consideration in the development
of the fiscal year 2006 financial plan. The following is an overview of some of
those challenges and how they will impact the future operations of the Denco
Area 9-1-1 District:
Funding Challenges
The Denco Area 9-1-1 District was created by a voter referendum in 1987
to implement a 9-1-1 system. The statute authorizing the election provided for an
emergency service fee collected by the telephone companies to fund District
operations. The service fee was not to exceed three percent of the base rate of the
largest service provider.
Since that time, a second source of funding from wireless telephone
service was authorized by the legislature to provide cost recovery for the
implementation of wireless 9-1-1 services. The wireless revenue, along with the
Fiscal Year 2006 Financial Plan Summary May 19, 2005
original service fee has proven to be adequate to provide emergency 9-1-1
services to the District's constituents.
With the deployment of Voice over Internet Protocol (VoIP) telephone
services, defined in Section 2, Denco will be challenged to have sufficient
financial resources to provide the technical solutions required to meet emergency
communication expectations. VoIP subscribers are not currently required to pay
the emergency service fee, or any other add-on taxes or fees. This is attractive to
the consumer and many are migrating from traditional telephone service to VOIP
service. As customers have begun to leave the traditional service providers, the
wireline emergency service fee has begun to decrease. Fortunately, the growth in
wireless revenue has temporarily offset the decline in wireline revenue.
Technology Challenges
The telecommunication consumer has become more mobile and it is
difficult for Denco to provide accurate location information for all 9-1-1 callers.
With the deployment of Phase 11 services in 2004, the District was able to provide
the best wireless location services available. The technology to locate some VOIP
service users is not yet available. The District is participating in a joint project
with seven other emergency communication districts to procure future technology
that will provide the enhanced 9-1-1 services constituents are accustomed to
receiving.
16
Fiscal Year 2006 Financial Plan Summary May 19, 2005
Legislative Challenges
There are legislative issues to consider that are providing challenges as
Denco plans for the provision of services. At the federal level, the Enhanced 9-1-1
Act of 2004 was passed in December. If funded, the law provides for a national
9-1-1 office to oversee the underserved areas in the country. The U.S. Department
of Transportation is very much involved in 9-1-1 issues with a major next
generation 9-1-1 initiative and Congress has sent the message that it will allow
very little regulation of VoIP services and no taxes or fees are to be applied to the
phone bill.
At the state level, the telecommunication service providers have become
very much deregulated and the Public Utility Commission of Texas will have a
smaller role in the provision of 9-1-1 services in the future. The Texas Legislature
is likely to have an interim study committee evaluate 9-1-1 funding in Texas and
possibly recommend a new model to the legislature when it reconvenes in 2007.
Regulatory Challenges
In the regulatory arena, the Federal Communication Commission (FCC)
was not involved in the provision of 9-1-1 services until the provision of
Enhanced 9-1-1 services for wireless. Wireless and VoIP telephone services are
regulated at the federal level and states are preempted from any regulation of
those technologies. The FCC has several committees working on both short term
and long term 9-1-1 issues and expected to provide some direction with regards to
VoIP 9-1-1 services in the next year.
17
Fiscal Year 2006 Financial Plan Summary May 19, 2005
At the state level, the Public Utility Commission (PUC) of Texas is still
involved in regulating traditional wireline services. With deregulation of the
industry, it is likely that the PUC will be less involved in the future and Denco
will be purchasing services from vendors not traditionally providing 9-1-1
services.
Financial Overview
Budget Objectives
At the end of the March strategic planning workshop, the Denco Area
9-1-1 District Board of Managers identified several short-term and long-term
objectives in developing the financial plan for fiscal year 2006. Those objectives
included the following:
• Begin increasing the reserve funds set aside for system upgrades in
anticipation of new technologies required to process 9-1-1 calls from VOIP
and other new telephone services.
• Implement the first phase of the wireless backup network that will provide
redundant services for the current 9-1-1 system and a backbone for the
next generation network.
• Participate with other members of the Texas 9-1-1 Alliance in the
provision of Public Education messages directed at consumers of new
18
Fiscal Year 2006 Financial Plan Summary May 19, 2005
telephone technologies. These messages will cover the Metroplex market
and advise consumers to be aware of what level of 9-1-1 services is
available with new technologies.
• Increase the focus on training in order to provide additional training
opportunities for telecommunicators across the district. The additional
opportunities will provide professional development opportunities for the
165 telecommunicators serving the citizens within the Denco Area 9-1-1
District.
Financial Summary
Anticipated Revenue
The 2006 financial plan provides for an anticipated revenue increase of
$74,399 over the estimated fiscal year 2005 revenues with wireline service fees
decreasing by 3.75 percent and wireless fees increasing by 8.00 percent.
Proposed Expenditures
Total fiscal year 2006 expenditures proposed in the draft budget are
expected to be $234,152 less than estimated in the current fiscal year. Each of the
objectives identified by the board of managers at its March workshop is included
in the proposal.
19
Fiscal Year 2006 Financial Plan Summary May 19, 2005
Reserve Balance
The end of fiscal year 2005 projected reserve balance is $817,219 or 27
percent of budget. A significant portion of those reserve funds are expected to be
used in the deployment of new technologies in years 2007 and 2008. The reserve
fund is planned to be sufficient for the next five years, growing significantly in
2009 and 2010.
20
DENCO AREA 9-1-1 DISTRICT
Summary of Cost Classifications
Personnel Expenditures
Includes staff salary, deferred compensation, healthcare, and retirement benefits.
Also included are costs for state unemployment tax and employer's contribution to
Medicare.
Operations Expenditures
Includes the costs associated with the business operations of the Denco Area
9-1-1 District.
Communications
Includes telecommunication, printing/publishing and postage/shipping costs
necessary for the district to disseminate information.
Expendable Supplies
Includes the cost of routine expendable office supplies and commercially
available software. Supplies also include the costs associated with service awards.
Summary of Cost Classifications May 19, 2005
Contract Services
Includes the cost of legal fees, independent audit, insurance, advertising and other
contract services such as equipment and software support for district equipment.
Building Services
Includes the cost of utilities, building services, maintenance and repair expense
for the office and training facility owned by district.
Memberships/Subscriptions
Includes individual and organizational memberships to professional organizations
such as National Emergency Number Association (NENA) and Association of
Public Safety Communications Officials-International (APCO). Includes
subscriptions to newspapers, periodicals, information services, technical support
publications and the purchase or rental of books, videos and recordings.
Professional Development
Includes board and staff training and ongoing professional development through
technical training classes, seminars, conferences and symposiums.
Travel
Includes out of district travel costs such as, but not limited to mileage
reimbursement, airfare, food, lodging, local transportation, parking, telephone,
etc. when such costs are reasonable and when they are incurred in conjunction
with board and authorized staff travel out of the district. Also included is
22
Summary of Cost Classifications May 19, 2005
reimbursement for the use of personal vehicles on official business within the
district.
Furniture and Equipment
Includes the purchase of the necessary furniture and fixtures as well as office
equipment necessary for the ongoing operations of the Denco Area 9-1-1 District.
Direct Service Expenditures
Includes all non-recurring and recurring costs attributed directly to the operations,
maintenance, equipment, network and database required for the provision of 9-1-1
services. Also included are direct costs for information system services, public
education and training for telecommunicators.
9-1-1 Systems
Includes operations, service and direct maintenance costs required for Denco to
maintain the 9-1-1 systems. Also included are non-recurring and monthly
recurring costs for network and database services, language interpretation and
other recurring services.
Information Systems
Includes operations, service and direct maintenance costs required to develop and
distribute 9-1-1 GIS and other database information to public safety answering
points and emergency response agencies. Included are costs for aerial
23
Summary of Cost Classifications May 19, 2005
photography files and the service and maintenance of hardware and software
required to provide the data.
Public Education/Training
Public Education includes operating costs required for the development, purchase
and distribution of public information and education materials for special focus
groups and district at large. Also includes costs for special functions such as
National Telecommunicator Week recognition and 9-1-1 Day activities.
Training expenditures include cost for materials, instructors, registration, etc.;
associated with meeting the training needs of 9-1-1 call takers. Also included are
direct costs required for Denco to sponsor telecommunicators from across the
district to the State of Texas annual awards and appreciation activities and
recipients of the Dr. Allen Groff Emergency Medical Dispatch (EMD)
Scholarship to the national EMD conference.
24
Denco Area 9-1-1 District
Fiscal Year 2006
Financial Plan
Section 4
Anticipated Revenues
Proposed Expenditures
DENCO AREA 911 DISTRICT FINANCIAL PLAN
Anticipated Revenues
Fiscal Year 2006
FY 2006 Percent of
Proposed Budget
Service Fee Revenue
Verizon $ 683,832.00 22.84%
SBC 218,684.00 7.30%
Sprint 33, 558.00 1.12%
CenturyTel 48,000.00 1.60%
Other Local Exchange Carriers (CLECs) 263,092.00 8.79%
Private Switch Service Fees 1,500.00 0.05%
Telephone Company Administrative Charges (12,487.00) -0.42%
Telephone Company Uncollectible Charges (1,800.00) -0.06%
Telephone Company Adjustments (8,256.00) -0.28%
Net Wireline Service Fee Revenue $ 1,226,123.00 40.95%
Wireless Service Fee Revenue 1,735,417.00 57.95%
Total Service Fee Revenue $ 2,961,540.00 98.90%
Non Service Fee Revenue
Interest Revenue $ 13,000.00 0.43%
Contract Service Revenue 20,000.00 0.67%
Miscellaneous Revenue (Expenses) - 0.00%
Total Non Service Fee Revenue $ 33,000.00 1.10%
Total Revenue $ 2,994,540.00 100%
27
DENCO AREA 911 DISTRICT FINANCIAL PLAN
Summary of Anticipated Revenues and Proposed Expenditures
Fiscal Year 2006
FY 2006 Percent of
Proposed Budget
Beginning of Year Estimated Reserve Funds $ 674,295
Anticipated Revenues
9-1-1 Service Fee Revenue $ 2,961,540 98.90%
Interest Revenue 13,000 0.43%
Contract Services Revenue 20,000 0.67%
Miscellaneous Revenue (Expense) - 0.00%
Total Anticipated Revenues $ 2,994,540 100%
Proposed Expenditures
Personnel $ 953,560 33.44%
Operations 171,041 6.00%
Direct Services 1,727,015 60.56%
Total Proposed Expenditures $ 2,851,616 100%
Increase (Decrease) in Reserve Funds $ 142,924
End of Year Estimated Reserve Funds $ 817,219
28
DENCO AREA 911 DISTRICT FINANCIAL PLAN
Proposed Expenditures
Fiscal Year 2006
FY 2006 Percent of
Proposed Budget
Personnel Expenditures
Salaries $ 723,524 25.37%
Benefits 230,036 8.07%
Total $ 953,560 33.44%
Operations Expenditures
Communications $ 20,802 0.73%
Expendable Supplies 15,500 0.54%
Contract Services 69,396 2.43%
Building Services 34,125 1.20%
Memberships/Subscriptions 1,883 0.07%
Professional Development 5,555 0.19%
Travel 22,280 0.78%
Furniture and Equipment 1,500 0.05%
Total $ 171,041 6.00%
Direct Service Expenditures
9-1-1 Systems
Operations $ 113,428 3.98%
Network and Database Services 851,900 29.87%
PSAP and Maintenance Equipment 569,600 19.97%
Information Systems
Operations 90,120 3.16%
Public Education/Training
Operations 17,692 0.62%
Public Education Services 47,700 1.67%
Training Services 36,575 1.28%
Total $ 1,727,015 60.56%
$ 2,851,616 100%
29
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Denco Area 9-1-1 District
Fiscal Year 2006
Financial Plan
Section 5
Appendix
Mission Statement
H B 1984
Resolutions
District Legislation
DENCO AREA 9-1-1 DISTRICT
Mission, Values and Goals Statement
Mission
The mission of the Denco Area 9-1-1 District is to provide an efficient,
effective enhanced 9-1-1 emergency telecommunications system that assists its
member jurisdictions in responding to police, fire and medical emergency calls.
Values
The Denco Area 9-1-1 District pledges to uphold the following values:
Value 1: Control of district operations is the responsibility of
member jurisdictions and the board of managers.
Value 2: The district will provide the most reliable, efficient, cost-
effective and proven state-of-the-art technologies available
at the lowest service fee rate possible.
Goals
The Denco Area 9-1-1 District has the following goals that support its
endeavor to carry out its mission.
Goal 1: To represent the interests of member jurisdictions,
emergency service providers and users in establishing the
Denco Area 9-1-1 District mission, values, goals and
objectives.
Appendix Mission, Values and Goals Statement
Goal 2: To manage the Denco Area 9-1-1 District in an objective,
efficient, effective and responsive manner.
Goal 3: To increase public awareness of 9-1-1 issues and promote
the proper use of the 9-1-1 system.
Goal 4: To provide training programs that enable Public Safety
Answering Point (PSAP) personnel to effectively process
9-1-1 calls.
Goal 5: To provide and maintain a dependable, state-of-the-art
enhanced 9-1-1 system.
Goal 6: To assure that PSAPs have the most accurate, reliable and
useable data at all times.
34
AN ACT
relating to the consolidation of emergency communication districts and to
the approval of proposed budgets of certain emergency communication
districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
TEXAS:
SECTION 1. Section 771.001(3), Health and Safety Code, is
amended to read as follows:
(3) Emergency communication district" means:
(A) a public agency or group of public agencies
acting jointly that provided 9-1-1 service before September 1, 1987, or that
had voted or contracted before that date to provide that service; or
(B) a district created under Subchapter B, C, [er]
D, or F, Chapter 772.
SECTION 2. Sections 772.309(b), (c), and (d), Health and Safety
Code, are amended to read as follows:
(b) The board shall submit a draft of the proposed budget to the
governing bodies of the participating jurisdictions not later than the 45th
day before the date the board adopts the budget. The participating
jurisdictions shall review the proposed budget and submit any comments
regarding the budget to the board.
(c) if the governing body of a county, municipality, or other
participating jurisdiction does not approve or disapprove the budget before
the 61 st day after the date the body received the proposed budget for
review, the budget is approved by operation of law.
35
Appendix H.B. No. 1984
A revision of the budget must be approved in the same
manner as the budget.
(e) [{c4] As soon as practicable after the end of each district fiscal
year, the director shall prepare and present to the board and to each
participating jurisdiction in writing a sworn statement of all money received
by the district and how the money was used during the preceding fiscal
year. The report must show in detail the operations of the district for the
fiscal year covered by the report.
[04] The board shall have an independent financial audit of the
district performed annually.
36
Appendix Budget Approval Procedures
DENCO AREA 9-1-1 DISTRICT
RESOLUTION
DEFINING PROCEDURES FOR CONSIDERATION AND APPROVAL OF A
BUDGET
WHEREAS, Sections 772.309(b)&(c), Texas Health and Safety Code have been
amended by the Texas Legislature to specify certain procedures for the consideration
and approval of a budget by the Board and governing bodies of participating
jurisdictions.
NOW, THEREFORE BE IT RESOLVED BY THE DENCO AREA 9-1-1
DISTRICT BOARD OF MANAGERS:
The Board's procedures for consideration and approval of a budget shall
include the following:
1. Not later than the 45th day before the Board adopts a budget, the
Executive Director on behalf of the Board will submit a draft of the
proposed budget to each of the governing bodies of the participating
jurisdictions. In a transmittal letter accompanying the draft of the
proposed budget, the Executive Director will include a statement
requesting that the governing bodies of each of the participating
jurisdictions review the draft of the proposed budget and submit any
comments to the Board prior to or on the date the budget is scheduled for
consideration and adoption by the Board.
2. Once the Board adopts the budget, the Executive Director on behalf of the
Board will within three days either 1) send a letter to each of the
governing bodies of the participating jurisdictions stating that the Board
adopted the proposed budget without any changes or 2) send a copy of the
budget adopted by the Board and include in a letter the differences
between the proposed and adopted budget. In the letter to the governing
bodies of the participating jurisdictions, the Executive Director will
include a statement requesting approval of the Board's adopted budget by
the governing bodies of participating jurisdictions within sixty days of
receipt.
APPROVED and ADOPTED on this 2°d day of December 1999.
Chairman, Board of Managers
Secretary, Board of Managers
37
Appendix Budget Approval Policy
DENCO AREA 9-1-1 DISTRICT
RESOLUTION
DEFINING THE DENCO AREA 9-1-1 DISTRICT BUDGET APPROVAL
POLICY
WHEREAS, the Denco Area 9-1-1 District was created under Texas Health and
Safety Code and the voters of Denton County to design, implement and operate
a 9-1-1 system for all participating jurisdictions; and
WHEREAS, the Board of Managers is appointed by participating jurisdictions to
manage, control and administer the district; and
WHEREAS, under the direction of the Board of Managers, the executive director
prepares an annual budget that must be approved by the board, the
commissioners court and the majority of participating cities; NOW,
THEREFORE BE IT RESOLVED BY THE DENCO AREA 9-1-1 DISTRICT
BOARD OF MANAGERS THAT:
1. The Denco Area 9-1-1 District approved budget shall include specific
revenue and expenditure projections by department. Budget
departments as defined in district's annual audit include service fee
revenue, interest revenue and miscellaneous revenue. Expenditure
departments include personnel services, operations, direct services,
capital outlay and debt service. The board, at its discretion, may add
or delete budget departments.
2. The executive director shall submit to the Board of Managers requests
for amendments, revisions or modifications to the district's annual
budget that require an increase in any budget department's
expenditures in excess of five percent of the total department budget.
Any increase of expenditures in excess of the approved department
budget, up to five percent, shall be offset by a decrease of an equal
amount in another department budget.
3. Without limiting the Board of Managers authority under Section 772,
Texas Health and Safety Code, the Board of Managers may approve
amendments, revisions or modifications to the District's annual budget
as deemed reasonable and necessary as long as such budget
amendments, revisions or modifications do not require that the total
expenditures budgeted exceed the amount previously approved and
adopted by the Board of Managers, the Denton County
Commissioners Court and the majority of participating cities'
governing bodies.
APPROVED and ADOPTED on this 6th day of April 2000.
Chairman, Board of Managers
Secretary, Board of Managers
38
SUBCHAPTER D. EMERGENCY COMMUNICATION DISTRICTS:
COUNTIES WITH POPULATION OVER 20,000
§ 772.301. Short Title
This subchapter may be cited as the Emergency Telephone Number
Act.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.302. Purpose
It is the purpose of this subchapter to establish the number 9-1-1 as
the primary emergency telephone number for use by certain local
governments in this state and to encourage units of local government and
combinations of those units to develop and improve emergency
communication procedures and facilities in a manner that will make
possible the quick response to any person calling the telephone number
9-1-1 seeking police, fire, medical, rescue, and other emergency
services. To this purpose the legislature finds that:
(1) it is in the public interest to shorten the time required for a citizen to
request and receive emergency aid;
(2) there exist thousands of different emergency telephone numbers
throughout the state, and telephone exchange boundaries and central
office service areas do not necessarily correspond to public safety and
political boundaries;
(3) a dominant part of the state's population is located in rapidly
expanding metropolitan areas that generally cross the boundary lines of
local jurisdictions and often extend into two or more counties; and
(4) provision of a single, primary three-digit emergency number through
which emergency services can be quickly and efficiently obtained would
provide a significant contribution to law enforcement and other public
safety efforts by making it less difficult to notify public safety personnel
quickly.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
39
Appendix Health and Safety Code, Chapter 772.300
§ 772.303. Definitions
In this subchapter:
(1) "Board" means the board of managers of a district.
(2) "Director" means the director of communication for a district.
(3) "District" means an emergency communication district created
under this subchapter.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.304. Application of Subchapter
(a) This subchapter applies only to a county with a population of more
than 20,000 or to a group of two or more contiguous counties each with a
population of 20,000 or more in which an emergency communication
district was created under Chapter 288, Acts of the 69th Legislature,
Regular Session, 1985, before January 1, 1988, or to a public agency or
group of public agencies that withdraws from participation in a regional
plan under Section 771.058(d).
(b) This subchapter does not affect the authority of a public agency to
operate under another law authorizing the creation of a district in which 9-
1-1 service is provided.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1405, § 32, eff. Sept. 1, 1999.
§ 772.305. Additional Territory
(a) If a municipality that is part of a district annexes territory that is not
part of the district, the annexed territory becomes part of the district.
(b) A public agency located in whole or part in a county adjoining the
district, by resolution adopted by its governing body and approved by the
board of the district, may become part of the district and subject to its
benefits and requirements.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.306. Board of Managers
(a) A district is governed by a board of managers.
40
Appendix Health and Safety Code, Chapter 772.300
(b) If the most populous municipality in the district has a population of
more than 140,000, the board consists of:
(1) one member for each county in the district appointed by the
commissioners court of each county;
(2) two members appointed by the governing body of the most
populous municipality in the district;
(3) one member appointed by the governing body of the second most
populous municipality in the district;
(4) one member appointed as provided by this section to represent the
other municipalities located in whole or part in the district; and
(5) one member appointed by the principal service supplier.
(c) If Subsection (b) does not apply to a district, the board consists of:
(1) the following members representing the county or counties in the
district:
(A) if the district contains only one county, two members appointed by
the commissioners court of the county;
(B) if the district originally contained only one county but contains more
than one county when the appointment is made, two members appointed
by the commissioners court of the county in which the district was
originally located, and one member appointed by the commissioners court
of each other county in the district; or
(C) if the district originally contained more than one county and the
district contains more than one county when the appointment is made, one
member appointed by the commissioners court of each county in the
district;
(2) two members appointed jointly by all the participating municipalities
located in whole or part in the district;
(3) one member appointed jointly by the volunteer fire departments
operating wholly or partly in the district, with the appointment process
coordinated by the county fire marshal or marshals of the county or
counties in the district; and
(4) one member appointed by the principal service supplier.
41
Appendix Health and Safety Code, Chapter 772.300
(d) The board member appointed by the principal service supplier is a
nonvoting member. If the board is appointed under Subsection (c), the
principal service supplier may waive its right to appoint the board member
and designate another service supplier serving all or part of the district to
make the appointment.
(e) The board member appointed under Subsection (b)(4) is appointed
by the mayor's council established to administer urban development block
grant funds, if one exists in the district. Otherwise, the member is
appointed by the other members of the board on the advice and
recommendation of the governing bodies of all the municipalities
represented by the member.
(f) The initial board members appointed by municipalities under
Subsection (c)(2) are appointed by all the municipalities located in whole
or part in the district.
(g) Board members are appointed for staggered terms of two years,
with as near as possible to one-half of the members' terms expiring each
year.
(h) A board member may be removed from office at will by the entity
that appointed the member.
(i) A vacancy on the board shall be filled for the remainder of the term
in the manner provided for the original appointment to that position.
(j) Board members serve without compensation. The district shall pay
all expenses necessarily incurred by the board in performing its functions
under this subchapter.
(k) The board may appoint from among its membership a presiding
officer and any other officers it considers necessary.
(I) The director or a board member may be appointed as secretary of
the board. The board shall require the secretary to keep suitable records
of all proceedings of each board meeting. After each meeting the
presiding officer at the meeting shall read and sign the record and the
secretary shall attest the record.
(m) Voting members of the board may meet in executive session in
accordance with Chapter 551, Government Code.
(n) A majority of the voting members of the board constitutes a quorum.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
42
Appendix Health and Safety Code, Chapter 772.300
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(82), eff. Sept. 1, 1995;
Acts 1995, 74th Leg., ch. 638, § 15, eff. Sept. 1, 1995.
§ 772.307. Powers and Duties of Board
(a) The board shall control and manage the district.
(b) The board may adopt rules for the operation of the district.
(c) The board may contract with any public or private entity to carry out
the purposes of this subchapter, including the operation of a 9-1-1
system.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.308. Director of District
(a) The board shall appoint a director of communication for the district
and shall establish the director's compensation. The director must be
qualified by training and experience for the position.
(b) The board may remove the director at any time.
(c) With the board's approval, the director may employ any experts,
employees, or consultants that the director considers necessary to carry
out the purposes of this subchapter.
(d) The director shall perform all duties that the board requires and
shall supervise as general manager the operations of the district subject to
any limitations prescribed by the board.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.309. Budget; Annual Report; Audit
(a) The director shall prepare under the direction of the board an
annual budget for the district. To be effective, the budget must:
(1) be approved by the board;
(2) be presented to and approved by the commissioners court of each
county in the district;
(3) be presented to and approved by the governing body of the most
populous municipality in the district, if that municipality has a population of
more than 140,000; and
43
Appendix Health and Safety Code, Chapter 772.300
(4) be presented to the governing body of each other participating
jurisdiction and approved by a majority of those jurisdictions.
(b) The board shall submit a draft of the proposed budget to the
governing bodies of the participating jurisdictions not later than the 45th
day before the date the board adopts the budget. The participating
jurisdictions shall review the proposed budget and submit any comments
regarding the budget to the board.
(c) If the governing body of a county, municipality, or other participating
jurisdiction does not approve or disapprove the budget before the 61 st day
after the date the body received the proposed budget for review, the
budget is approved by operation of law.
(d) A revision of the budget must be approved in the same manner as
the budget.
(e) As soon as practicable after the end of each district fiscal year, the
director shall prepare and present to the board and to each participating
jurisdiction in writing a sworn statement of all money received by the
district and how the money was used during the preceding fiscal year. The
report must show in detail the operations of the district for the fiscal year
covered by the report.
(f) The board shall have an independent financial audit of the district
performed annually.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1406, § 2, eff. Aug. 30, 1999.
§ 772.310. Establishment of 9-1-1 Service
(a) A district shall provide 9-1-1 service to each participating
jurisdiction through one or a combination of the following methods and
features:
(1) the transfer method;
(2) the relay method;
(3) the dispatch method;
(4) automatic number identification;
(5) automatic location identification;
44
Appendix Health and Safety Code, Chapter 772.300
(6) selective routing; or
(7) any equivalent method.
(b) A district shall provide 9-1-1 service using one or both of the
following plans:
(1) the district may design, implement, and operate a 9-1-1 system for
each participating jurisdiction with the consent of the jurisdiction; or
(2) the district may design, implement, and operate a 9-1-1 system for
two or more participating jurisdictions with the consent of each of those
jurisdictions if a joint operation would be more economically feasible than
separate systems for each jurisdiction.
(c) Under either plan authorized by Subsection (b), the final plans for
the particular system must have the approval of each participating
jurisdiction covered by the system.
(d) The district shall recommend minimum standards for a 9-1-1
system.
(e) A service supplier involved in providing 9-1-1 service, a
manufacturer of equipment used in providing 9-1-1 service, or an officer
or employee of a service supplier involved in providing 9-1-1 service is
not liable for any claim, damage, or loss arising from the provision of 9-1-
1 service unless the act or omission proximately causing the claim,
damage, or loss constitutes gross negligence, recklessness, or intentional
misconduct.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 638, § 16, eff. Sept. 1, 1995.
§ 772.311. Primary Emergency Telephone Number
The digits 9-1-1 are the primary emergency telephone number in a
district. A public safety agency whose services are available through a 9-
1-1 system may maintain a separate number or numbers for emergencies
and shall maintain a separate number or numbers for nonemergency
telephone calls.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
45
Appendix Health and Safety Code, Chapter 772.300
§ 772.312. Transmitting Requests For Emergency Aid
(a) A 9-1-1 system established under this subchapter must be capable
of transmitting requests for fire-fighting, law enforcement, ambulance, and
medical services to a public safety agency or agencies that provide the
requested service at the place from which the call originates. A 9-1-1
system may also provide for transmitting requests for other emergency
services such as poison control, suicide prevention, and civil defense.
(b) A public safety answering point may transmit emergency response
requests to private safety entities.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.313. Powers of District
(a) The district is a body corporate and politic, exercising public and
essential governmental functions and having all the powers necessary or
convenient to carry out the purposes and provisions of this subchapter,
including the capacity to sue or be sued.
(b) To fund the district, the district may apply for, accept, and receive
federal, state, county, or municipal funds and private funds and may
spend those funds for the purposes of this subchapter. The board shall
determine the method and sources of funding for the district.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.314. 9-1-1 Emergency Service Fee
(a) The board may impose a 9-1-1 emergency service fee on service
users in the district.
(b) The fee may be imposed only on the base rate charge or its
equivalent, excluding charges for coin-operated telephone equipment. The
fee may not be imposed on more than 100 local exchange access lines or
their equivalent for a single business entity at a single location, unless the
lines are used by residents of the location. The fee may also not be
imposed on any line that the Advisory Commission on State Emergency
Communications excluded from the definition of a local exchange access
line or an equivalent local exchange access line pursuant to Section
771.063. If a business service user provides residential facilities, each line
that terminates at a residential unit and that is a communication link
equivalent to a residential local exchange access line shall be charged the
9-1-1 emergency service fee. The fee must have uniform application and
must be imposed in each participating jurisdiction.
46
Appendix Health and Safety Code, Chapter 772.300
(c) The rate of the fee may not exceed six percent of the monthly base
rate in a service year charged a service user by the principal service
supplier in the participating jurisdiction. For purposes of this subsection,
the jurisdiction of the county is the unincorporated area of the county.
(d) The board shall set the amount of the fee each year as part of the
annual budget. The board shall notify each service supplier of a change in
the amount of the fee not later than the 91 st day before the date the
change takes effect.
(e) In imposing the fee, the board shall attempt to match the district's
revenues to its operating expenditures and to provide reasonable reserves
for contingencies and for the purchase and installation of 9-1-1
emergency service equipment. If the revenue generated by the fee
exceeds the amount of money needed to fund the district, the board by
resolution shall reduce the rate of the fee to an amount adequate to fund
the district or suspend the imposition of the fee. If the board suspends the
imposition of the fee, the board by resolution may reinstitute the fee if
money generated by the district is not adequate to fund the district.
(f) In a public agency whose governing body at a later date votes to
receive 9-1-1 service from the district, the fee is imposed beginning on
the date specified by the board. The board may charge the incoming
agency an additional amount of money to cover the initial cost of providing
9-1-1 service to that agency. The fee authorized to be charged in a
district applies to new territory added to the district when the territory
becomes part of the district.
(g) For the purposes of this section, the jurisdiction of the county is the
unincorporated area of the county.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
Amended by Acts 1993, 73rd Leg., ch. 936, § 14, eff. Aug. 30, 1993; Acts
19997 76th Leg., ch. 1203, § 5, eff. June 18, 1999.
§ 772.315. Collection of Fee
(a) Each billed service user is liable for the fee imposed under Section
772.314 until the fee is paid to the service supplier. The fee must be
added to and stated separately in the service user's bill from the service
supplier. The service supplier shall collect the fee at the same time as the
service charge to the service user in accordance with the regular billing
practice of the service supplier. A business service user that provides
residential facilities and owns or leases a publicly or privately owned
telephone switch used to provide telephone service to facility residents
47
Appendix Health and Safety Code, Chapter 772.300
shall collect the 9-1-1 emergency service fee and transmit the fees
monthly to the district.
(b) The amount collected by a service supplier from the fee is due
monthly. The service supplier shall remit the amount collected in a
calendar month to the district not later than the 60th day after the last day
of the calendar month. With each payment the service supplier shall file a
return in a form prescribed by the board.
(c) Both a service supplier and a business service user under
Subsection (a) shall maintain records of the amount of fees it collects for
at least two years after the date of collection. The board may require at the
board's expense an annual audit of a service supplier's books and records
or the books and records of a business service user described by
Subsection (a) with respect to the collection and remittance of the fees.
(d) A business service user that does not collect and remit the 9-1-1
emergency service fee as required is subject to a civil cause of action
under Subsection (g). A sworn affidavit by the district specifying the
unremitted fees is prima facie evidence that the fees were not remitted
and of the amount of the unremitted fees.
(e) A service supplier is entitled to retain an administrative fee from the
amount of fees it collects. The amount of the administrative fee is two
percent of the amount of fees it collects under this section.
(f) A service supplier is not required to take any legal action to enforce
the collection of the 9-1-1 emergency service fee. However, the service
supplier shall provide the district with an annual certificate of delinquency
that includes the amount of all delinquent fees and the name and address
of each nonpaying service user. The certificate of delinquency is prima
facie evidence that a fee included in the certificate is delinquent. A service
user account is considered delinquent if the fee is not paid to the service
supplier before the 31 st day after the payment due date stated on the
user's bill from the service supplier.
(g) The district may institute legal proceedings to collect fees not paid
and may establish internal collection procedures and recover the cost of
collection from the nonpaying service user. If the district prevails in legal
proceedings instituted to collect a fee, the court may award the district
court costs, attorney's fees, and interest in addition to other amounts
recovered. A delinquent fee accrues interest at an annual rate of 12
percent beginning on the date the payment becomes due.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
48
Appendix Health and Safety Code, Chapter 772.300
Amended by Acts 1993, 73rd Leg., ch. 936, § 15, eff. Aug. 30, 1993; Acts
19957 74th Leg., ch. 638, § 17, eff. Sept. 1, 1995.
§ 772.316. District Depository
(a) The board shall select a depository for the district in the manner
provided by law for the selection of a county depository.
(b) A depository selected by the board is the district's depository for two
years after the date of its selection and until a successor depository is
selected and qualified.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.317. Allowable Expenses
Allowable operating expenses of a district include all costs attributable
to designing a 9-1-1 system and to all equipment and personnel
necessary to establish and operate a public safety answering point and
other related answering points that the board considers necessary.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.318. Number and Location Identification
(a) As part of computerized 9-1-1 service, a service supplier shall
furnish current telephone numbers of subscribers and the addresses
associated with the numbers on a call-by-call basis.
(b) A business service user that provides residential facilities and owns
or leases a publicly or privately owned telephone switch used to provide
telephone service to facility residents shall provide to those residential end
users the same level of 9-1-1 service that a service supplier is required to
provide under Subsection (a) to other residential end users in the district.
(c) Information furnished under this section is confidential and is not
available for public inspection.
(d) A service supplier or business service user under Subsection (b) is
not liable to a person who uses a 9-1-1 system created under this
subchapter for the release to the district of the information specified in
Subsections (a) and (b).
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
49
Appendix Health and Safety Code, Chapter 772.300
Amended by Acts 1993, 73rd Leg., ch. 936, § 16, eff. Aug. 30, 1993; Acts
19957 74th Leg., ch. 638, § 18, eff. Sept. 1, 1995.
§ 772.319. Public Review
(a) Periodically, the board shall solicit public comments and hold a
public review hearing on the continuation of the district and the 9-1-1
emergency service fee. The first hearing shall be held three years after the
date the order certifying the creation of the district is filed with the county
clerks. Subsequent hearings shall be held three years after the date each
order required by Subsection (d) is adopted.
(b) The board shall publish notice of the time and place of the hearing
once a week for two consecutive weeks in a daily newspaper of general
circulation published in the district. The first notice must be published not
later than the 16th day before the date set for the hearing.
(c) At the hearing, the board shall also solicit comments on the
participation of the district in the applicable regional plan for 9-1-1 service
under Chapter 771. After the hearing, the board may choose to participate
in the regional plan as provided by that chapter.
(d) After the hearing, the board shall adopt an order on the continuation
or dissolution of the district and the 9-1-1 emergency service fee.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.320. Dissolution Procedures
(a) If a district is dissolved, 9-1-1 service must be discontinued on the
date of the dissolution. The commissioners court of the county in which
the district was located or, if the district contains more than one county,
the commissioners courts of those counties acting jointly, shall assume
the assets of the district and pay the district's debts. If the district's assets
are insufficient to retire all existing debts of the district on the date of
dissolution, the commissioners court or courts acting jointly shall continue
to impose the 9-1-1 service fee, and each service supplier shall continue
to collect the fee for the commissioners court or courts. Proceeds from the
imposition of the fee after dissolution of the district may be used only to
retire the outstanding debts of the district.
(b) The commissioners court or courts shall retire the district's debts to
the extent practicable according to the terms of the instruments creating
the debts and the terms of the orders and resolutions authorizing creation
of the debts.
50
Appendix Health and Safety Code, Chapter 772.300
(c) The commissioners court or courts by order may adopt the rules
necessary to administer this section.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.321. Issuance of Bonds
The board may issue and sell bonds in the name of the district to
finance:
(1) the acquisition by any method of facilities, equipment, or supplies
necessary for the district to begin providing 9-1-1 service to all
participating jurisdictions; and
(2) the installation of equipment necessary for the district to begin
providing 9-1-1 service to all participating jurisdictions.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.322. Repayment of Bonds
The board may provide for the payment of the principal of and interest
on the bonds by pledging all or any part of the district's revenues from the
9-1-1 emergency service fee or from other sources.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.323. Additional Security for Bonds
(a) The bonds may be additionally secured by a deed of trust or
mortgage lien on part or all of the physical properties of the district and the
rights appurtenant to those properties, vesting in the trustee power to sell
the properties for payment of the indebtedness, power to operate the
properties, and all other powers necessary for the further security of the
bonds.
(b) The trust indenture, regardless of the existence of the deed of trust
or mortgage lien on the properties, may include provisions prescribed by
the board for the security of the bonds and the preservation of the trust
estate and may make provisions for investment of funds of the district.
(c) A purchaser under a sale under the deed of trust or mortgage lien is
the absolute owner of the properties and rights purchased and may
maintain and operate them.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
51
Appendix Health and Safety Code, Chapter 772.300
§ 772.324. Form of Bonds
(a) A district may issue its bonds in various series or issues.
(b) Bonds may mature serially or otherwise not more than 25 years
after their date of issue and shall bear interest at any rate permitted by
state law.
(c) A district's bonds and interest coupons, if any, are investment
securities under the terms of Chapter 8, Business & Commerce Code,
may be issued registrable as to principal or as to both principal and
interest, and may be made redeemable before maturity, at the option of
the district, or contain a mandatory redemption provision.
(d) A district may issue its bonds in the form, denominations, and
manner and under the terms, and the bonds shall be signed and
executed, as provided by the board in the resolution or order authorizing
their issuance.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.325. Provisions of Bonds
(a) In the orders or resolutions authorizing the issuance of bonds,
including refunding bonds, the board may provide for the flow of funds and
the establishment and maintenance of the interest and sinking fund, the
reserve fund, and other funds and may make additional covenants with
respect to the bonds, the pledge revenues, and the operation and
maintenance of any facilities the revenue of which is pledged.
(b) The orders or resolutions of the board authorizing the issuance of
bonds may also prohibit the further issuance of bonds or other obligations
payable from the pledged revenue or may reserve the right to issue
additional bonds to be secured by a pledge of and payable from the
revenue on a parity with or subordinate to the lien and pledge in support of
the bonds being issued.
(c) The orders or resolutions of the board issuing bonds may contain
other provisions and covenants as the board may determine.
(d) The board may adopt and have executed any other proceedings or
instruments necessary and convenient in the issuance of bonds.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.326. Approval and Registration of Bonds
52
Appendix Health and Safety Code, Chapter 772.300
(a) Bonds issued by a district must be submitted to the attorney general
for examination.
(b) If the attorney general finds that the bonds have been authorized in
accordance with law, the attorney general shall approve them. On
approval by the attorney general, the comptroller shall register the bonds.
(c) After the approval and registration of bonds, the bonds are
incontestable in any court or other forum for any reason and are valid and
binding obligations according to their terms for all purposes.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.327. Refunding Bonds
(a) A district may issue bonds to refund all or any part of its outstanding
bonds, including matured but unpaid interest coupons.
(b) Refunding bonds shall mature serially or otherwise not more than
25 years after their date of issue and shall bear interest at any rate or
rates permitted by state law.
(c) Refunding bonds may be payable from the same source as the
bonds being refunded or from other sources.
(d) The refunding bonds must be approved by the attorney general as
provided by Section 772.326 and shall be registered by the comptroller on
the surrender and cancellation of the bonds refunded.
(e) The orders or resolutions authorizing the issuance of the refunding
bonds may provide that they be sold and the proceeds deposited in the
place or places at which the bonds being refunded are payable, in which
case the refunding bonds may be issued before the cancellation of the
bonds being refunded. If refunding bonds are issued before cancellation of
the other bonds, an amount sufficient to pay the principal of the bonds
being refunded and interest on those bonds accruing to their maturity
dates or to their option dates if the bonds have been duly called for
payment before maturity according to their terms shall be deposited in the
place or places at which the bonds being refunded are payable. The
comptroller shall register the refunding bonds without the surrender and
cancellation of bonds being refunded.
(f) A refunding may be accomplished in one or in several installment
deliveries. Refunding bonds and their interest coupons are investment
securities under Chapter 8, Business & Commerce Code.
53
Appendix Health and Safety Code, Chapter 772.300
(g) In lieu of the method set forth in Subsections (a)-(f), a district may
refund bonds, notes, or other obligations as provided by the general laws
of this state.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
§ 772.328. Bonds as Investments and Security for Deposits
(a) District bonds are legal and authorized investments for:
(1) a bank;
(2) a savings bank;
(3) a trust company;
(4) a savings and loan association;
(5) an insurance company;
(6) a fiduciary;
(7) a trustee;
(8) a guardian; and
(9) a sinking fund of a municipality, county, school district, and other
political subdivision of the state and other public funds of the state and its
agencies, including the permanent school fund.
(b) District bonds are eligible to secure deposits of public funds of the
state and municipalities, counties, school districts, and other political
subdivisions of the state. The bonds are lawful and sufficient security for
deposits to the extent of their value when accompanied by all unmatured
coupons.
Acts 1989, 71st Leg., ch. 678, § 1, eff. Sept. 1, 1989.
54
Appendix Health and Safety Code, Chapter 772.300
§ 772.329. Tax Status of Bonds
Because a district created under this subchapter is a public entity
performing an essential public function, bonds issued by the district, any
transaction relating to the bonds, and profits made in the sale of the bonds
are exempt from taxation by the state or by any municipality, county,
special district, or other political subdivision of the state.
Acts 1989, 71 st Leg., ch. 678, § 1, eff. Sept. 1, 1989
55
S:1Our DocumentslFormsWS Rules of Procedure Amendment.doc
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Legal
CMIDCMIACM: Edwin M. Snyder, Interim City Attorney
SUBJECT Consider the adoption of an ordinance amending Ordinance Nos. 2004-182 and
2004-298 and Section 2-29 of the City Code relating to Rules of Procedure for the City Council
of the City of Denton, Texas; by changing the requirements for the City Secretary to keep
minutes of meetings and certified agendas to comply with the Texas Open Meetings Act; and
repealing and consolidating Ordinances 2004-182 and 2004-298; providing the severability
clause; and declaring an effective date.
BACKGROUND Periodically the City staff consolidates the Rules of Procedure into one
ordinance and recommends changes in the Rules which will expedite and make Council
meetings more efficient. The last consolidation of the Rules was in July of last year when the
City Council passed Ordinance No. 2004-182 consolidating all amendments to the Rules into one
ordinance. Consolidation makes it easier for the Council, staff and the general public to find the
Rules in one document.
Since Ordinance 2004-182, the Council passed Ordinance No. 2004-298 which made several
changes in the Rules including decreasing the time limits for citizen reports from five (5) to four
(4) minutes, placing citizen reports in a different position on the agenda, requiring groups of ten
or more speakers to provide written designation to the City Secretary of the speaker
representative, providing for the announcement summarizing the portions of the Rules that apply
to citizen reports and making certain other minor changes to correct statutory references due to
legislative changes. This consolidation Ordinance would combine this Ordinance with the last
consolidation Ordinance No. 2004-182.
In addition, the Interim City Attorney is recommending that you amend Section 2.5 "Minutes of
Meetings" of the Rules by changing the last sentence. Section 551.103 of the Tex. Gov't Code
(the Texas Open Meetings Act) requires a governmental body to either keep a certified agenda or
make a tape recording of the proceedings of each closed meeting, except for a private
consultation with the City's attorneys, permitted under Section 551.071. The Attorney General
has consistently rules that this section does not require the City Council to keep a certified
agenda or tape recording of consultations between the governmental body and its attorneys.
However, because your Rules read that a certified agenda shall be prepared for all closed
meetings, the Mayor has been preparing a certified agenda for consultations with your attorney
held in compliance with Section 551.071 of the Tex. Gov't Code. Under the Open Meetings Act,
this is unnecessary and may in fact be disadvantageous to the City in some cases. This is
explained more fully in the Interim City Attorney's status report. We recommend changing the
second sentence of this section to make it clear that the Mayor will only keep the certified
agenda for those closed meetings where a certified agenda is required to be kept under the Open
1
S:IOur DocumentsTorms\AIS Rules of Procedure Amendment.doc
Meetings Act. Additionally Section 8.1(l) Council Committees, was revised per Council's
direction at its June 7t' meeting.
This matter was brought to you first as a work session item at your June 14, 2005 meeting
because Section 2.14 of your Rules provides that any proposed amendments or new rules must
first have been introduced before you at a prior Council meeting before the Rules can be
amended. At that session you requested a change to Sections 8.1 and 8.2 of the rules to provide
that all Committees, Boards and Commissions would continue in operation until abolished by a
majority vote of the Council. These sections have been amended as you requested.
RECOMMENDATION: Staff recommends that you approve the Ordinance. Consolidating the
amendments into one ordinance will facilitate utilization of the Rules by the Council, the staff
and the general public. Changing the requirement to keep certified agendas to make it consistent
with the Texas Open Meetings Act will eliminate the need to prepare certified agendas for all
consultations with attorneys under Section 551.071 of the Tex. Gov't Code. This will eliminate
a task that is unnecessary and create more efficiency in government.
FISCAL IMPACT: The proposed Ordinance has no fiscal impact. The elimination of the need
to keep certified agendas for attorney/client closed meeting consultations may reduce costs by
eliminating an unnecessary task.
Respectfully submitted:
Edwin M. Snyder
Interim City Atto
2
S.O. Do --t.\G dinar OWTC R.I. ofFmedm OM d-
ORDINANCE NO.
AN ORDINANCE AMENDING ORDINANCE NOS. 2004-182 AND 2004-298 AND SECTION
2-29 OF THE CITY CODE RELATING TO RULES OF PROCEDURE FOR THE CITY
COUNCIL OF THE CITY OF DENTON, TEXAS; BY CHANGING THE REQUIREMENTS
FOR THE CITY SECRETARY TO KEEP MINUTES OF MEETINGS AND CERTIFIED
AGENDAS TO COMPLY WITH THE TEXAS OPEN MEETINGS ACT; CERTAIN
REVISIONS REGARDING COUNCIL COMMITTEES AND REPEALING AND
CONSOLIDATING ORDINANCES 2004-182 AND 2004-298; PROVIDING A SEVERABILITY
CLAUSE; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the Constitution and Laws of the State of Texas, and Section 2.07 of the City
Charter of the City of Denton, Texas, hereinafter referred to as City, authorize the City Council of
the City to promulgate and establish rules of procedure to govern and conduct meetings, order of
business, and rules of decorum, while acting as a legislative body representing the City; and
WHEREAS, the City Council deems it in the public interest to amend the minutes of the
meeting section to clarify that the City Secretary shall only keep minutes of the certified agendas of
those closed session which are required to be kept by the Texas Open Meetings Act; and
WHEREAS, because of its desire to more effectively and efficiently serve the public
through the medium of public meetings, it has become necessary to amend and consolidate all
amendments of the City Council Rules of Procedure; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1, That Ordinance Nos. 2004-182 and 2004-298 and Section 2-29 of the City
Code are hereby amended and consolidated in one ordinance known as the Denton City Council
Rules of Procedure to read as follows:
1. (2-29(a)) AUTHORITY
1.1(1) Charter: Pursuant to the provisions of Section 2.07 of the Charter of the City of
Denton, Texas, the City Council hereby enacts these rules of procedure for all meetings of the City
Council of the City of Denton, Texas.
During any meeting, a reasonable opportunity shall be given for citizens to be heard under
these rules. These Rules of Procedure are enacted as guidelines to be followed by all persons in the
Council Chamber including the city administrative staff, news media, and visitors.
2. (2-29(b)) GENERAL RULES
2.1 (1) Meetings to be Public: All official meetings of the Council and Council committees
and subcommittees, except closed meetings permitted by the provisions of the Texas Open
Meetings Act, Chapter 551, TEX. GOVT. CODE ANN. (Vemons Annotated Texas Civil Statutes
2005 (Vernons), as amended, shall be open to the public.
S:lOur Documeu s OrdinancesO CC Rules of Procedure Ord-doc
2.2 (2) Ounnim: Four members of the Council shall constitute a quorum for the transaction
of business. (Charter, Section 2.06)
2.3 (3) Compelling No member shall be excused from attendance at a Council
meeting except for good and valid reasons. It will be the duty of the Council member to notify the
City Secretary prior to the meeting at which he or she is going to be absent. The City Secretary will
record each Council member as being present or absent as a part of the minutes prepared for each
Council meeting.
2.4 (4) Misconduct: The Council may punish its own members for misconduct consistent
with any Ethics Policy adopted by the Council.
2.5 (5) Minutes of Meetings: An account of all proceedings of the Council shall be kept by
the City Secretary and shall be entered in a book constituting the official record of the Council. A
certified agenda shall be prepared and shall be approved by the Mayor for all closed meetings for
which a certified agenda is required to be kept in accordance with Chapter 551, TEX. GOV'T.
CODE ANN. (Vernons 2005), as amended.
2.6 (6) Uiestions to Contain One gnhiect: All questions submitted for a vote shall contain
one subject, except the City Council may approve all items which are on the consent agenda in one
motion, regardless of how many subjects are contained in the consent agenda, so long as all items
have been properly posted in accordance with the Texas Open Meetings Act and have not been
removed from the consent agenda by a Council member. If two or more points are involved, any
member may require a division, if the question reasonably admits of a division.
2.7 (7) : Any member desiring to speak shall be recognized by the
Chairperson, and shall confine his or her remarks to the subject under consideration or to be
considered. No member shall be allowed to speak more than once on any one subject until every
member wishing to speak shall have spoken.
2.8 (8) City Manager. The City Manager, or Acting City Manager, shall attend all meetings
of the Council unless excused. He or she may make recommendations to the Council and shall
have the right to take part in all discussions of the Council, but shall have no vote. (Charter,
Section 5.03 (d)).
2.9 (9) City Att: The City Attorney, or Acting City Attorney, shall be available upon
request for all meetings of the Council unless excused and shall, upon request, give an opinion,
either written or oral, on questions of law. The City Attorney shall act as the Council's
parliamentarian.
2.10 (10) City Secretary: The City Secretary, or Acting City Secretary, shall attend all
meetings of the Council unless excused, and shall keep the official minutes and perform such other
duties as may be requested by the Council.
2.11 (11) Offinerc and F.mz lovees: Any officer or employee of the City, when requested by
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the City Manager, shall attend any meeting of the Council. If requested to do so by the City
Manager, such employee may present information relating to matters before the Council.
2.12 (12) Rules of Order: These rules govern the proceedings of the Council in all cases,
except that where these rules are silent, the most recent Edition of Robert's Rules of Order revised
shall govern.
2.13 (13) Risnensinn of Rules: Any provision of these rules not governed by the City
Charter or Code may be temporarily suspended by the affirmative vote of four members of the
Council. The vote on any such suspension shall be taken by yeas or nays and entered into the
minutes of the Council.
2.14 (14) Amendment of Rules: These rules may be amended, or new rules adopted by the
affirmative vote of four members of the Council, provided that the proposed amendments or new
rules shall have been introduced before the City Council at a prior Council meeting.
3. (2-29(c)) CODE OF CONDT JCT
3.1 (1) C aund members:
a. During Council meetings, Council members shall preserve order and decorum and shall
neither by conversation or otherwise delay or interrupt the proceedings nor refuse to observe the
rules of the Council.
b. A Council member, once recognized, shall not be interrupted while speaking unless
called to order by the Mayor or presiding officer, unless a point of order is raised by another
member or the parliamentarian, or unless the speaker chooses to yield to questions from another
member. If a Council member is called to order while he or she is speaking, he or she shall cease
speaking immediately until the question of order is determined. If ruled to be in order, he or she
shall be permitted to proceed. If ruled not to be in order he or she shall remain silent or shall alter
his or her remarks so as to comply with rules of the Council.
3.2 (2) Administrative Staff:
a. Members of the Administrative staff and employees of the City shall observe the same
rules of procedure and decorum applicable to members of the Council, and shall have no voice
unless and until recognized by the Chair.
b. While the presiding officer shall have the authority to preserve decorum in meetings as
far as staff members and City employees are concemed, the City Manager also shall be responsible
for the orderly conduct and decorum of all City employees under his or her direction and control.
c. The City Manager shall take such disciplinary action as may be necessary to insure that
such decorum is preserved at all times by City employees in Council meetings.
d. All remarks and questions addressed to the Council shall be addressed to the Council as
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a whole and not to any individual member thereof
e. No staff member, other than a staff member having the floor, shall enter into any
discussion either directly or indirectly without permission of the presiding officer.
3.3 (3) C.itizmg:
a. Citizens and other visitors are welcome to attend all public meetings of the City
Council, and will be admitted to the City Council Chamber or other room in which the City
Council is meeting, up to the fire safety capacity of the room.
b. All meeting attendees shall conduct themselves with propriety and decorum.
Conversations between or among audience members should be conducted outside the meeting
room. Attendees will refrain from excessively loud private conversations while the Council is in
session.
c. Unauthorized remarks from the audience, stamping of the feet, applauding, whistles,
yells, and similar demonstrations shall not be permitted.
d. Placards, banners, or signs will not be permitted in the City Council Chamber or in
any other room in which the City Council is meeting. Exhibits, displays, and visual aids used in
connection with presentations to the City Council, however, are permitted.
e. Audience members may not place their feet on any chairs in the City Council Chamber
or other room in which the City Council is meeting.
f Only City Council members and City staff may step on to the dais.
g. All people wishing to address the City Council shall first be recognized by the
presiding officer and shall limit their remarks to the matter under discussion.
h. All remarks and questions addressed to the City Council shall be addressed to the City
Council as a whole and not to any individual members.
i. Any person addressing the City Council in the City Council Chamber shall do so from
the lectern unless physically unable -to do so. People addressing the City Council shall not be
permitted to approach the dais. If they wish to hand out papers or other materials to the City
Council, they should express that desire to the presiding officer, and the City Manager shall
direct a staff member to hand out the materials.
j. When the time has expired for a presentation to the City Council, the presiding officer
shall direct the person speaking to cease. A second request from the presiding officer to cease
speaking shall be cause of the removal of the speaker if that person continues to speak.
k. Equipment, apparatus, or paraphernalia such as camera tripods, easels, or wheelchairs
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shall not obstruct, block, or otherwise be located in the doorway, entranceway, or walkways of
the City Council Chambers or of any other room in which the City Council may choose to meet.
Representatives of the electronic media may set up cameras and other equipment only in the back
of the room. It is permissible for television camera operators to film for short periods of time
(several minutes) from the entranceway to the City Council Chambers using hand-held cameras
only. Any radio station, which broadcasts the regular City Council meetings live may hook their
equipment up at the front of the room as long as it remains out of sight and out of the way.
1. There will be a uniformed City of Denton police officer present at all regular meetings
of the City Council. This police officer shall act in the capacity of a security officer/sergeant-at-
arms, and shall enforce the meeting rules and acct upon the direction of the presiding officer.
in. Any person making personal, impertinent, profane, or slanderous remarks, or who
becomes boisterous while addressing the City Council or who otherwise violates any of the
above-mentioned rules while attending a City Council meeting shall be removed from the room
at the direction of the presiding officer, and the person shall be barred from further audience
before the City Council during that session of the City Council. If the presiding officer fails to
act, any member of the City Council may move to require the offending person's removal, and
the affirmative vote of a majority of the City Council shall require the presiding officer to act.
The sergeant-at-arms, if so directed by the presiding officer or an affirmative vote of the majority
of the City Council, shall remove the offending person from the meeting.
3.4 (4) Enforcement: The City Manager, in the absence of a designated law enforcement
officer, shall act as Sergeant-at-Arms for the Council, and shall furnish whatever assistance is
needed to enforce the rules of decorum herein established.
3.5 (5) Seating : The City Secretary, City Manager and City Attorney shall
occupy the respective seats in the Council Chamber assigned to them by the Mayor, but any two or
more members of the Council may exchange seats.
4.(2-29(d)) TYPES EMEFTINGS
4.1 (1) Regular Meetings: The Council shall meet at 6:30 p.m. on the first and third
Tuesday of each month, with executive sessions (closed meetings) of the Council commencing at
5:30 p.m., or at any other time set by the Council, unless the meeting is postponed or cancelled for
valid reasons. All regular meetings of the Council will be held in the Municipal Building at 215
East McKinney Street, Denton, Texas or at such other location as the City Council may, by motion,
resolution or ordinance from time to time designate.
4.2 (2) Special Meetings: Special meetings may be called by the Mayor, the City Manager,
or by any three members of the Council. The call for a special meeting shall be filed with the City
Secretary in written form, and he or she shall post notice thereof as provided by the Texas Open
Meetings Act, TEX. GOV'T. CODE ANN. § 551.001, et seq. (Vernons 2005, as amended). The
Mayor, City Manager, or three of the council members may designate a location for the special
meeting other than the Municipal Building as long as the location is open to the public.
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4.3 (3) Workshop Meetings: Workshop meetings or work sessions may be held from 4:30
p.m. to 5:15 p.m. on the first and third Tuesday of each month, or at such other times the Agenda
Committee may designate, to discuss near to mid range issues. Workshop meetings or work
sessions may be held from 5:15 p.m. to 6:30 p.m. or at such other times as the agenda committee
may designate, on the first and third Tuesday of each month, to answer Council questions
concerning consent agenda items. Workshop or Work Sessions may be held from 4:00 p.m. to 6:30
p.m. or at such other times as the Agenda Committee may designate, on the second Tuesday of each
month to discuss mid to long-range issues. Workshops or Work Sessions may be called using the
same procedure required for special meetings as provided for in Section 4.2(2) above. The purpose
of the workshop meeting is to discuss or explore matters of interest to the City, to meet with City
boards, commissions, or committee members, City staff or officers of civic organizations,
governing bodies or individuals specifically invited to the session by the Mayor, Council or City
Manager. These meetings are informational and normally, no final action shall be taken unless the
posted agenda indicates otherwise. Citizens or other interested persons attending the work session
will not be allowed to participate in the session unless invited to do so by the Mayor. Citizens
should be advised of the nature of the work session and that their input may be received and
considered at a regularly scheduled council meeting where the agenda provides for final action to be
taken on the matter. The purpose of this procedure is to allow the citizens attending the regular
meeting the opportunity of hearing the views of their fellow citizens in a more formal setting. Any
citizen may supply the City Council a written statement or report regarding the citizen's opinion on
a matter being discussed in a work session. If the Mayor invites citizens to participate in a work
session, their participation will cease at the point the Mayor closes the session to public input to
allow the Council to give City staff direction as to needed information for the possible future
meeting without distracting comment from the audience.
4.4 (4) Meetings: In case of emergency or urgent public necessity, which shall
be expressed in the notice of the meeting, an emergency meeting may be called by the Mayor, the
City Manager or by three members of the Council, and it 'shall be sufficient if the notice is posted
two hours before the meeting is convened.
4.5 (5) Closed Meetings: The Council may meet in a closed meeting pursuant to the
requirements of the Texas Open Meetings Act, Chapter 551, TEX. GOVT CODE ANN. (Vernon
2005), as amended.
4.6 (6) Recessed : Any meeting of the Council may be recessed to a later time,
provided that no recess shall be for a longer period than until the next regular meeting.
4.7 (7) Notice of Meetings: The agenda for all meetings, including Council Committee or
Subcommittee meetings, shall be posted by the City Secretary on the City's official bulletin board
and notice of all meetings shall be given by the City Secretary pursuant to the requirements of the
Texas Open Meetings Act, Chapter 551, TEX. GOVT CODE ANN. (Vernon 2005, as amended.)
5. (2-29(e)) PRFSMUjjj QEUC'F.R AND DUTIES
5.1 (1) Presi~ffc : The Mayor, or in the absence of the Mayor, the Mayor Pro-Tern,
shall preside as chairman, or presiding officer at all meetings of the Council. In the absence of both
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s:rour Dm=mts1OrdinwccO51CC Wn ofP-"dm Ord.da
the Mayor and Mayor Pro-Tem, the Council shall elect a temporary presiding officer. (Charter,
Section 2.03)
5.2 (2) Call to Order: The meetings of the Council shall be called to order by the Mayor, or
in his or her absence, by the Mayor Pro-Tem. In the absence of both the Mayor and the Mayor Pro-
Tem, the meeting shall be called to order by the City Secretary, and a temporary presiding officer
shall be elected as provided above.
5.3 (3) Preservation of Orr: The presiding officer shall preserve order and decorum, and
confine members in debate to the question under discussion. The presiding officer shall call upon
the Sergeant-at-Arms as necessary to enforce compliance with the rules contained herein.
5:4 (4) Points of order: The presiding officer shall determine all points of order, subject to
the right of any member to appeal to the Council. If any appeal is taken, the question shall be,
"Shall the decision of the presiding officer be sustained?". If a majority of the members present
vote "No", the ruling of the chair is overruled; otherwise, it is sustained.
5.5 (5) Questions tn_ he Stated: The presiding officer shall state all questions submitted for
a vote and announce the result. A roll call vote shall be taken upon the request of any member, and
upon the passage of all ordinances and resolutions.
5.6 (6) Substitution for Presiding Q ,cer: The presiding officer may call any other member
to take his or her place in the chair, such substitution not to continue beyond adjournment.
5.7 (7) Call for Recess: The presiding officer may call for a recess of up to fifteen (15)
minutes at regular intervals of approximately one hour at appropriate points in the meeting agenda,
or if requested by any two members.
6. ORDER OF BUSINESS (Section 2-29 (f)
6.1 (1) AA ate: The order of business of each meeting shall be as contained in the agenda
prepared by the City Manager, which shall be reviewed and approved by an Agenda Committee
composed of the Mayor, the Mayor Pro Tern, and the City Manager. When items are removed from
the consent agenda and placed on the regular agenda by members of the Council, the removed items
shall be taken up in the order of removal right after the consent agenda. Placement of items on the
agenda shall be governed by this Section and Section 6.3; provided that if a Council member has an
"emergency" item that the Council member believes should be placed on the next regular or special
meeting agenda, the placement must be approved by two members of the Agenda Comrittee.
Conduct of business at special meetings and Council Committees and subcommittees will likewise
be governed by an agenda and these Rules of Procedure.
6.2 (2) Pledge of Allegiance: Each agenda shall provide an item for the recital of the
"Pledge of Allegiance" at the regularly scheduled city council meetings. This item shall begin with
the recital of the pledge of allegiance for the United States flag and shall follow with a recital of the
pledge of allegiance for the Texas state flag in accordance with Section 3100.101 of the Tex. Gov't
Code.
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6.3 (3) Council: Pres=l ions by Membcrs of The agenda shall provide a time when the
Mayor or any Council member may bring before the Council any business that he or she feels
should be deliberated upon by the Council at a future Council meeting. These matters need not be
specifically listed on the agenda, but discussion and formal action on such matters shall be deferred
until a subsequent Council meeting. Any member may suggest an item for discussion at a future
work session. The City Manager or city staff shall only respond preliminarily on this item at the
work session. If the City Council believes the item requires a more detailed review, the Council
will give the City Manager or City Staff direction to place the item on a future regular meeting
agenda and advise staff as to the background materials to be desired at such meeting.
6.4 (4) Presentation by Cib7.ens:
a. Citizen Reparts: Any person who wishes to place a subject on the Council agenda at
regular City Council meetings shall advise the City Manager's office of that fact and the specified
subject matter which he or she desires to place on the agenda no later than 5:00 p.m. Wednesday
prior to the Council meeting at which he or she wishes the designated subject to be considered. A
time for such citizen reports shall be provided on the agenda after the approval of items for
individual consideration and before the item "consideration of new business." Any speaker
providing a citizen report shall speak for no longer than four (4) minutes on all items that he or she
may bring before the Council at each meeting, unless the Mayor or the majority of the Council
grants an extension of time. No citizen may fill out a "request to speak" form or have an
opportunity to speak or comment on another citizen's report, which is given at the same Council
meeting. An announcement shall be made, prior to the time for citizen reports on the agenda,
summarizing the main portions of the Rules and Section 3 (2-29(c)), "Code of Conduct" as they
may apply to citizens speaking to the Council.
b. Items: Any person who wishes to address the
Council regarding a non-public hearing item that is on the Council's agenda for a regular or special
meeting, shall complete a "request to speak" form asking to speak regarding the item and shall
return it to the City Secretary before the Council considers the item. Any person wishing to address
the Council on a public hearing item should complete a request to speak form and return it to the
City Secretary. The Mayor will call upon the citizen to speak for no longer than three (3) minutes
as that particular agenda item is considered by the City Council except that persons giving citizen
reports shall speak for no longer than four (4) minutes and applicants and their agents on public
hearing items shall be allowed to speak for no longer than five (5) minutes or as indicated in
paragraph 6.4.d. (5) "Time Limits." The provisions of this paragraph do not apply to workshop
meetings, and a citizen's right to speak and provide input at these meetings shall be limited and
controlled by subsection 4.3 (2-29(d)(3)) "Workshop Meetings".
c. Any person who wishes to address the Council at a public hearing should complete a
"request to speak" form and return it to the City Secretary before the applicable hearing. The Mayor
will call upon the citizen to speak for no longer than three (3) minutes or five (5) minutes for
applicants and their agents in accordance with paragraph 6.5(5) "Time Limits."
d. Any group or organization comprised of ten or more members present in the City
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&\OW Docwnrni~Ordiua csW55CC Rules of Procedure Ord.due
Council Chambers who wishes to address the Council at a public hearing or on a non-public
hearing agenda item shall designate a representative to address the City Council and shall limit their
remarks to ten (10) minutes or less. The group or organization shall turn in a written designation to
the City Secretary prior to the commencement of the meeting identifying the representative who
will address the City Council on behalf of the group or organization.
6.5 (5) Time Limits: Speakers before the Council shall limit their remarks to no more than
three (3) minutes for public hearing items provided that applicants for land use or other public
hearing items and their agents shall limit their remarks to five (5) minutes or less per speaker and
shall have a maximum of fifteen (15) minutes to speak to the item. Citizens reports shall be limited
to four (4) minutes or less. Groups or organizations comprised of ten or more members shall limit
their remarks in accordance with the parameters established in paragraph 6.4d (2-29(f)(4). At the
discretion of the presiding officer or a majority of the City Council, any speaker may be granted an
extension of time to speak.
6.6 (6) Oral Presentations by OU Man Matters requiring the Council's attention or
action which may have developed after the deadline for delivery of the written communication to
the Council may be presented orally by the City Manager. If formal Council action on a subject is
required, such action may be taken only if the provisions of the Texas Open Meetings Act have
been satisfied.
6.7(7) Presentation of Proclamations: The agenda may provide a time for the presentation
of proclamations. The Mayor or presiding officer may deliver and present proclamations upon the
request of citizens. Proclamations may encompass any activity or theme except that proclamations
with a theme religious or partisan in nature shall not be presented. Moreover, proclamations shall
not be used for any commercial or advertising purpose.
7. CONSIDERATION OF ORDINANCES, RESQUITIONS. AND MODONS (2-79(a
7.1(1) Printed or T;newt~nrJn: All ordinances and resolutions shall be presented to
the Council in printed, typewritten or electronic form. The Council may, by proper motion, amend
any ordinance or resolution presented to it at the meeting at which it is presented or direct that the
amended ordinance be placed on the next or any future Council Agenda for adoption.
7.2 (2) 0144 Ai#orney to A rove: All ordinances, resolutions, and contracts and
amendments thereto, shall be approved as to form and legality by the City Attorney, or he or she
shall file a written opinion on the legality of such ordinance, resolution or contract prior to
submission to the Council. (Charter, Section 6.02).
73 (3) Distribialan of Chdinances and Resolutions: The City Manager shall prepare copies
of all proposed ordinances and resolutions for distribution to all members of the Council at the
meeting at which the ordinance or resolution is introduced, or at such earlier time as is expedient.
7.4 (4) Recording of Votes: The yeas and nays shall be taken upon the passage of all
ordinances and resolutions and the vote of each member shall be recorded in the minutes. (Charter,
Section 2.06 (b)).
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S:VOur➢ocuments~Ord~nanceMS
7.5 (5) MaTntity Vote Required: An affirmative vote of four (4) members is necessary to
repeal any ordinance or take any official action in the name of the City except as otherwise
provided in the Charter, by the laws of the State of Texas, or these Rules. (Charter, Section 2.06).
7.5.1(a) Tate: Matters voted on by the City Council which end in a tie-vote shall
automatically be placed on each subsequent Council meeting agenda until a full Council is present.
7.6 (6) Demand for Roll Call: Upon demand of any member, the roll shall be called for
yeas and nays upon any question before the Council, with the exeption of flinse cJrcujnstnnrP-, set
forth in gectijM 7-17. The P=Jous Diestion. It shall not be in order for members to explain their
vote during the roll call.
7.7 (7) Personal Privilege: The right of a member to address the Council on a question of
personal privilege shall be limited to cases in which his or her integrity, character, or motives are
assailed, questioned, or impugned.
7.8 (8) Dissents and Protests: Any member shall have the right to express dissent from or
protest against any ordinance or resolution of the Council and have the reason therefore entered
upon the minutes. Such dissent or protest may be filed in writing, and presented to the Council not
later than the next regular meeting following the date of passage of the ordinance or resolution
objected to.
7.9 (9) Voti-nR : No member shall be excused from voting except for lack of
information and except on matters involving the consideration of his or her own official conduct, or
where his or her personal interests are involved in accordance with Chapter 171, TEX. LOC.
GOVT CODE ANN. (Vernon 2005), and in these instances he or she shall abstain. Any member
prohibited from voting by personal interest shall announce this at the commencement of
consideration of the matter and shall not enter into discussion or debate on any such matter and
shall leave the meeting room. The member having briefly stated the reason for his or her request,
the excuse from voting shall be made without debate.
7.10 (10) Order of Precedence of Motions:
a. The following motions shall have priority in the order indicated:
1. Adjourn (when unqualified) and is not debatable and may not be amended;
2. Take a recess (when privileged);
3. Raise a question of privilege;
4. Lay on the table;
5. Previous question (213 vote required);
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SANT Oacmo®~s~0='dinanees105VCC RWl of Pr ed m Ord.d.
6. Limit or extend limits of debate (213 vote required);
7. Postpone to a certain time;
8. Commit or refer;
9. Amend;
10. Postpone indefinitely;
11. Main Motion.
b. The first two motions are not always privileged. To adjourn shall lose its privilege
character and be a main motion if in any way qualified. To take a recess shall be privileged only
when other business is pending.
c. A motion to adjourn is not in order:
1. When repeated without intervening business or discussion;
2. When made as an interruption of a member while speaking;
3. While a vote is being taken.
d. Only certain motions may be amended as provided in the most current edition of
Robert's Rules of Order, revised. A motion to amend shall be undebatable when the question to be
amended is undebatable.
7.11 (11) Reconsideration: A motion to reconsider any action of the Council can be made
not later than the next succeeding official meeting of the Council. Such a motion can only be made
by a member who voted with the prevailing side. It can be seconded by any member. In order to
comply with the Texas Open Meetings Act, any Council member who wishes to make such a
motion at a meeting succeeding the meeting where the action was taken shall notify the City
Manager to place the item for reconsideration on the Council agenda. No question shall be twice
reconsidered, except by unanimous consent of the Council, except that action related to any contract
may be reconsidered at any time before the final execution thereof. A matter which was not timely
reconsidered in the manner provided by this section or was reconsidered but the action originally
taken was not changed by the Council cannot be reintroduced to the Council or placed on a Council
meeting agenda for a period of six (6) months unless this rule is suspended as provided for in these
Rules of Procedure.
7.12 (12) The Previous nuestian: When the previous question is moved and seconded, it
shall be put as follows: "Shall the main question be now put?". There shall then be no further
amendment or debate; eXC~t th--at nothing herein shall allow the nrevioussl>~edion to he called p rinr
to s lamt one =ortunity for each member of the Council to speak on thEQuestion before the
Council. Any pending amendments shall be put in their order before the main question. If the
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motion for the previous question is lost, the main question remains before the Council. An
affirmative vote of 213 of the Council shall be required to move the previous question. To demand
the previous question is equivalent in effect to moving "That debate now cease, and the Council
shall immediately proceed to vote on the pending motion". In practice, this is done with the phrase
"Call for the question", or simply saying "Question".
7.13 (13) Withdrawal of Motions: A motion may be withdrawn, or modified, by its
movant without asking permission until the motion has been stated by the Presiding Officer. If the
movant modifies his or her motion, the seconding council member may withdraw his or her second.
After the question has been stated, the movant shall neither withdraw it nor modify it without the
consent of the Council. The subject different from that under consideration shall be admitted under
color of amendment. A motion to amend an amendment shall be in order, but one to amend an
amendment to an amendment shall not be in order.
7.14 (14) Appmnriatinns of Mnn4: Before formal approval by the Council of motions
providing for appropriation of money, information must be presented to the Council showing
purpose of the appropriation. In addition, before finally acting on such an appropriation, the
Council shall obtain a report from the City Manager as to the availability of funds and his or her
recommendations as to the desirability of the appropriation.
7.15 (15) Transfer of Annmpdations: At the request of the City Manager, at any time
during the fiscal year, the Council may by resolution transfer an unencumbered balance of an
appropriation made for the use of one department, division, or purpose; but no transfer shall be
made of revenues or earnings of any non-tax supported public utility to any other purpose.
8. CREATION OF COMMITTFES. 130ARDS AND COMMISSIONS (2-2~94h))
8.1 (1) Council Committees: The Council may, as the need arises, authorize the
appointment of Council committees. Any committee so created shall cease to exist when abolished
by a majority vote of the Council.
82 (2) Citizen Boards, Commis-iinnc, and Committees: The Council may create other
Committees, Boards and Commissions to assist in the conduct of the operation of the City
government with such duties as the Council may specify not inconsistent with the City Charter or
Code. Memberships and selection of members shall be as provided by the Council if not specified
by the City Charter or Code. Any Committee, Board, or Commission so created shall cease to exist
when abolished by a majority of the vote of the Council. No Committee so appointed shall have
powers other than advisory to the Council or to the City Manager, except as otherwise specified by
the Charter or Code.
8.3 (3) Annrn:
a. Individual City Council members making nominations for members to citizen boards and
commissions will consider interested persons on a citywide basis.
b. The City Council will make an effort to be inclusive of all segments of the community in
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the board and commission appointment process. City Council members will consider ethnicity,
gender, socio-economic levels, and other factors to ensure a diverse representation of Denton
citizens.
c. The City Council will take into consideration an individual's qualifications, willingness
to serve, and application information in selecting nominations for membership to each board and
commission.
d. In an effort to ensure maximum citizen participation, City Council members will
continue the general practice of nominating new citizens to replace board members who have
served three consecutive, fall terms on the same board.
e. Each City Council member will be responsible for making nominations for board and
commission places assigned to him or her, which may correspond to the City Council member's
place. Individual City Council members will make nominations to the full City Council for the
governing body's approval or disapproval.
8.4 (4) Ru1eS of Procedure: Board and Commission members shall comply with the
provisions of Article III of Chapter 2 of the Code of Ordinances. Each Board shall be provided a
copy of these rules of procedure and each advisory board shall adopt rules of procedure governing
the operation of its board, incorporating Sections 2, 3, 5, and 7 hereof insofar as is possible.
9. VOTRIS REQUIRED -
Questions on which the voting requirement is varied by the Charter, State Statutes and these
rules are listed below:
9.1 (1) Charter and StateStabitna Requirements:
a. Charter Amendment - Five Votes: Ordinances submitting proposed Charter amendments
must be adopted by a two-thirds vote of the Council. (Article XI, Section 3, Texas Constitution and
Chapter 9, Texas Local Government Code (Vernon 2005.) For a seven member Council, this
means five members must vote affirmatively.
b. T&.y~dng Taxes -Five Votes: Ordinances providing for the assessment and collection of
certain taxes require the approval of two-thirds of the members of the Council (Section 302.101
Texas Tax Code) (Vernon, 2005).
c. Changing Paying Assessment Plans - Five Votes: Changes in plans for paving
assessment require a two-thirds vote of the Council (Section 313.053(e) Transportation Code,
Vernon 2005).
d. Chnnges in 7oning Ordinance or Toning C-'.lnssifications: In cases of a written protest of
a change in a zoning regulation or zoning classification by the owners of twenty (20%) percent or
more either of the area of the lots included in such proposed change, or of the lots immediately
PAGE 13
SAM)" 1)-ts40rdinancesi0MCC Ruses ofProced-Ord.doc
adjoining the same and extending two hundred feet (200) therefrom, such amendment shall not
become effective except by the favorable vote of three-fourths (314) of all members of the City
Council; six (6) votes of the City Council is required to override the decision of the Planning and
Zoning Commission that a zoning change be denied (Section 211.066 Tex. Loc. Gov't Code and
Section 35.3.4.C.(4) Denton City Code (Development Code).
e. Amendment of Tax Ahnt=ent : The guidelines and criteria adopted as the City's
Tax Abatement Policy may be amended or repealed by a vote of three-fourths (314) of all members
of the City Council (Section 312.002(c)) Texas Tax Code (Vernons 2005).
10. -
That if any section, subsection, paragraph, sentence, clause, phrase or word in this
ordinance, or application thereof to any person or circumstances is held invalid by any court of
competent jurisdiction, such holding shall not affect the validity of the remaining portions of this
ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have
enacted such remaining portions despite any such invalidity.
SECTION I That Ordinance Nos. 2004-182 and 2004-298 are hereby repealed.
SRCTION. 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, ERIM CITY ATTORNEY
BY:
U PAGE 14
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Parks and Recreation Department
ACM: Howard Martin, Utilities 349-823
SUBJECT
Hold a public hearing and consider adoption of an ordinance granting approval of a license
agreement for the subsurface use of a portion of the Airport Open Space Park approximately 579
feet for the purpose of a natural gas pipeline in accordance with Chapter 26 of the Texas Parks
and Wildlife Code; providing for the issuance of license; and providing an effective date.
(Parks, Recreation and Beautification recommended approval with a vote of 6-0).
BACKGROUND
Advance Midstream, L.P. has requested the use of parkland for the purpose stated, in order to
locate a natural gas transmission line.
State law as defined in Chapter 26, Protection of Public Parks and Recreational Lands, of the
Texas Parks and Wildlife Code requires that:
(a) a municipality of this state may not approve any program or project that requires the
use or taking of any public land designated and used prior to the arrangement of the
program or project as a park unless the municipality, acting through its duly authorized
governing body or officer, determines that:
(1) there is no feasible and prudent alternative to the use or taking of such land;
and
(2) the program or project includes all reasonable planning to minimize harm
to the land, as a park, resulting from the use or taking.
(b) A finding may be made only after notice and a hearing as required by this chapter. "
If the proposed natural gas line license is allowed, a value must be placed on the 579 linear foot
section and charged to the Advance Midstream, L.P. In addition, land disturbed in the park will
be returned to its original condition.
Parks and Recreation Department and the City of Denton staff have reviewed all other possible
alternatives. These alternatives included:
• Select another route through the city that would by-pass the park area. A routing study was
conducted.
• Permit the proposed routing of a Natural Gas Line easement across the park area to connect
to an existing Natural Gas Pipeline. After review of this option, it appears to be the most
prudent and cost effective way to transport natural gas from this part of the city.
- I -
OPTIONS
City Council may approve or deny the recommendation to allow the routing of a natural gas line
easement across Airport Open Space Park, select another option outlined above, or request staff
to submit an alternative not listed.
RECOMMENDATION
After reviewing all alternatives, staff recommends approval of the use of the Airport Open Space
Park for natural gas line license agreement. There will be no major impact on current park
operations or programs. The Parks and Recreation Department confirms that the City of Denton
has investigated all other alternatives and has used reasonable planning to minimize harm to the
land.
ESTIMATED SCHEDULE OF PROJECT
Construction is projected to begin in Summer 2005.
PRIOR ACTION/REVIEW
The Parks, Recreation and Beautification Board recommended approval of this public utility
easement at a meeting on June 6, 2005, with a vote of 6-0. (See Exhibit 3, minutes)
FISCAL INFORMATION
Compensation related to this use is still under discussion with Advance Midstream, L.P. It is
reasonable to expect that improvements directly related to programs and/or facilities in the
Airport Open Space Park will be provided.
BID INFORMATION
Not applicable
EXHIBITS:
1. Ordinance
2. Map
3. Parks, Recreation and Beautification Board Minutes
Respectfully Submitted:
r ,
Janet Fitzgerald, Director
Prepared by:
Bob Tickner, Superintendent
-2-
Lxnibit 2
Proposed Gas Line Easement
Air ort Open S ace Park
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Parks, Recreation and Beautification Board
Minutes
June 6, 2005
Members present: Teresa Andress, Geri Aschenbrenner, Jo Kuhn, Patrice Lyke, Reggie Heard and
Ross Richardson. Members absent: Chuck Smith. Staff present: Janet Fitzgerald, Bob Tickner,
Janie McLeod, John Whitmore and Jim Mays.
Chair Teresa Andress called the meeting to order at 6:00 p.m.
AWARDS AND RECOGNITION. Janet introduced Bobbie Davis as our new Aquatic Manager
who will be overseeing the water programs for the Water Works Park and the Civic Center Pool.
John said that Bobbie brings a variety of expertise to the water programs including water park
experience in Amarillo, American Red Cross and the Tom Landry facility at Baylor.
APPROVAL OF MINUTES OF MAY 2, 2005. The minutes of May 2nd were approved as
distributed.
ACTION ITEMS
2004 Annual Report - The recommended changes to the report were completed and the report will
be distributed to City Council. Janet said that July is National Park and Recreations month and a
proclamation will be presented at a council meeting in July.
ACTION: Geri made a motion to accept the 2004 Annual Report as presented. Jo seconded the
motion and it was approved with a vote of 6-0.
Proposed Gas Line Easement Airport Open Space Park. Bob reported that Advance Midstream LP
has requested the use of the Airport Open Space Park in order to locate a natural gas transmission
line. An easement has been requested for construction of a natural gas transmission line for four gas
wells at the Denton Municipal Airport. Teresa asked if the Department receives compensation or
revenue from the gas line. Bob said there is a small license fee that benefits the Department.
Patrice asked if any trees would be destroyed. Bob reported that there were some trees along the
fence line that might be removed.
ACTION: Ross made a motion to approve the gas line easement in the Airport Open Space Park.
Reggie seconded the motion and it was approved by a vote of 6 - 0.
Development Agreement for North Pointe Neighborhood Park. Bob reviewed the Park Land
Dedication ordinance and how developers either dedicate land to the city for neighborhood park
or pay fees in lieu of land dedication. R.S. Beall Company, the developer of North Pointe
subdivision in northwest Denton is prepared to make a park land dedication per the ordinance of
10.13 acres. This dedication is in excess of the ordinance requirement of 3.29 acres for the 470-
lot subdivision. The developer had previously paid $33,551.16 in Fees in Lieu of dedication
being held in escrow. With the dedication of land, a refund of these fees is in order per the
ordinance. The second part of the Park Land Dedication Ordinance provides for a Park
Development fee be paid at time of obtaining a building permit. Each new house pays $291.00.
EXHIBIT 3
The Developer has also requested a Developer's Agreement with the City to expedite the
development of a neighborhood park at this location. This agreement will provide for the
developer to construct a park and amenities per Park Department design approval. In the
agreement the developer will receive all accrued Park Development funds to date and receive
future funds received up to the amount of constructed improvements made and future additions
as they develop. The plan is to construct a playground unit at an estimated cost of $62,782.00.
Currently $43,650.00 has been collected from the 100 existing homes in the subdivision.
Teresa asked if the improvements would be built to the quality level of other park improvements.
Bob indicated that they would be.
ACTION: Patrice made a motion to approve the development agreement for the North Pointe
Neighborhood Park. Reggie seconded the motion and it was approved by a vote of 6 - 0.
DISCUSSION ITEMS - None
DIRECTOR'S REPORT
Update on the American Legion Hall Lease. Janet gave a brief review of the history of the
building and that the American Legion Post had asked to continue to hold their lease. The Post
had a negotiable 10-year lease and asked that the lease be renewed for another 10 years. The City
has agreed to renew the American Legion Post lease for another 10 years and the Post will
continue to meet at the facility.
Update of Aquatics Facilities, Operations, and Programs. John gave an update on the Water
Works Park. He said that in May of 2004 that 62 family passes had been sold and by May 2005,
that 371 family passes had been sold. He added that the local residents are attending the park more
than the non-residents, which is an increased from last year. John said that the sand volleyball
court should be completed in a couple of days. He added that the senior water programs are at
capacity and that home school programs will be using the pool more this year.
John said the diving board at the Civic Center Pool is being replaced.
Project Status Report - Bob said that most of the projects are in the completion stages. Janet said
the Lake Forest Park had been delayed due to development cost estimates being over budget. She
said the citizens are asking for a dog park and construction will begin as soon as possible.
Keep Denton Beautiful - Bob commented that KDB was working with TXDOT, Green Ribbon
Project, on the landscaping of Highway 77. The project will landscape the highway and Park
Maintenance will be responsible for the maintenance of the medians.
The Board decided not to meet in July unless an item needed immediate action.
There being no further business, the meeting was adjourned at 7:00 p.m.
ORDINANCE NO.
AN ORDINANCE GRANTING APPROVAL OF A LICENSE AGREEMENT FOR THE
SUBSURFACE USE OF A PORTION OF THE AIRPORT OPEN SPACE PARK
APPROX]MATELY 579 FEET FOR THE PURPOSE OF A NATURAL GAS PIPELINE IN
ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE;
PROVIDING FOR THE ISSUANCE OF LICENSE; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, Section 26.001 of the Texas Parks of Wildlife Code provides that public
land designated and used as a park may be used for a non-park purpose if the City Council finds
after notice and hearing that there is no feasible and prudent alternative to the use of such land
for the proposed project and the proposed project includes all reasonable planning to minimize
the harm to the park resulting from such use; and
WHEREAS, the City of Denton desires to cooperate with the Advance Midstream, L.P.
in the development of Natural Gas Pipeline by providing a license for the construction of a
Natural Gas Pipeline 579 linear feet along the frontage of Airport Road, FM 1515; and
WHEREAS, developer Advance Midstream, L.P. desires to construct the Natural Gas
Pipeline across Airport Open Space Park since alternative options would not be feasible and
prudent; and
WHEREAS, the City provided notice in the Denton Record Chronicle on May 30, June 6,
and June 13, 2005 of a Public Hearing to be held on June 21, 2005 in the Council Chambers to
consider the alternatives to the use of City Park and Recreational land for the subject private
natural gas pipe line project; and
WHEREAS, the City Council on June 21, 2005, received testimony and evidence
regarding alternatives to the use of the Airport Open Space Park for this Natural Gas Pipeline,
and based on such testimony and evidence the City Council hereby finds that the proposed
routing of Natural Gas Line across the park area to connect to an existing natural gas pipeline is
the only feasible and prudent alternative; and
WHEREAS, the City Council finds that the proposed use of park land does not fall within
the purview of Section 253.001 of the Texas Local Government Code; and
WHEREAS, the City Council finds that there is no feasible and prudent alternative to the
use of the Park land and that the natural gas line project when constructed in accordance with the
provisions of the license as described below will minimize the harm to the park land resulting
from the proposed subsurface use of such park land effected shall remain useable for the park
patrons once the construction of the private driveway improvements are completed; NOW,
THEREFORE,
S:\Our Documents\Drdinances\05Wrpoit Park-gas pipeline-Chapter 26.DOC -
EXHIBIT 1
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The natural gas line proposed by the Advance Midstream, L.P., be
constructed and maintained below the surface of the park property described in Exhibit A, which
is attached hereto and made a part hereof for all purposes, and that the surface of the park after
installation of the natural gas line be constructed in a manner so that the park land may still be
used by its patrons after completion of the project in the same manner it was used prior to the gas
line project.
SECTION 2. A license which is revocable as required by law be drafted and approved
by the City Attorney, or his designee and signed by the City Manager, or his designee allowing
the use of the park property as referenced above with appropriate provision to insure the
improvements are constructed in accordance with City Subdivision Rules and Regulations;
protects the patrons using the park from injury and damage both during and after construction of
the project; compensates the City for the reasonable market value of the use herein granted and
generally protect the health, safety and general welfare of the City.
SECTION 3. During construction of the gas pipeline improvements, Advance
Midstream, L.P. may have temporary use of such additional park land necessary to stage the
construction of the improvements as may be approved by the Director of Parks and Recreation
Department and at the completion of the construction activities for the above improvements such
additional park land shall be restored to the condition to which it existed prior to the beginning of
such construction activities.
SECTION 4. The rights and benefits set forth in this ordinance may not be assigned
without the express written consent of the City.
SECTION 5. The License above grantee shall, to the extent allowed by law, constitute a
covenant running with the land and be filed in the Deed Records of Denton County, Texas.
SECTION 6. 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:
SA0ur Doeumentsl0rdinances\0Mirpart Park-gas pipeline-Chapter 26.Doc age 2 of 3
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
By:
SAOurpocu=nuZtdinanae 05UirportPatk-gas pipeline-Chapter26.DOCPage 3 of 3
A S,?
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Coleman & Assoc. Land Surveying
y P.O. Box 686
Denton, 'Fexas 76201
`y Phone (910565-8215 Fax (90565-9800
EXHIBIT A
GAS LICENSE
CITY OF DENTON
FILED NOTES to all that certain tract of land situated in the T. Toby Survey Abstract Number
1285, City of Denton, Denton County Texas and being a part of the called 41.629 acre tract
described in the deed from J. Newton Rayzor to the City of Denton recorded in Volume 516, Page
648 of the Deed Records of Denton County, Texas; the subject tract being more particularly
described as follows:
BEGINNING for the Southwest corner of the tract being described herein at a '/z inch iron rod
found at the Southwest corner of the said 41.629-acre tract on the north right-of-way of FM
Highway 1515 (Airport Road);
THENCE North 00 Degrees 19 Minutes 00 Seconds East with the West line of the 41.629-acre
tract a distance of 20.3 feet;
THENCE North 80 Degrees 47 Minutes 51 Seconds East across the 41.629 acre tract a distance
of 605.3 feet to the East line thereof;
THENCE South 00 Degrees 19 Minutes 00 Seconds West with the East line of the 41.629 acre
tract a distance of 20.0 feet to the extension of the North line of the called 100 foot wide
Easement and Right-of-Way as described in the instrument from PACCAR, Inc to T.P.&L.
recorded in Volume 911, Page 894 of the said deed records and being 100 feet north of the the
Southeast corner of the 41.269 acre tract;
THENCE South 80 Degrees 47 Minutes 51 Seconds West across the 41.629-acre tract a
distance of 605.3 feet to the PLACE OF BEGINNING and enclosing 0.278 of an acre of land.
Together with a 30-foot Temporary Construction License North of and adjacent to the above
described easement.
The Developer has also requested a Developer's Agreement with the City to expedite the
development of a neighborhood park at this location. This agreement will provide for the
developer to construct a park and amenities per Park Department design approval. In the
agreement the developer will receive all accrued Park Development funds to date and receive
future funds received up to the amount of constructed improvements made and future additions
as they develop. The plan is to construct a playground unit at an estimated cost of $62,782.00.
Currently $43,650.00 has been collected from the 100 existing homes in the subdivision.
Teresa asked if the improvements would be built to the quality level of other park improvements.
Bob indicated that they would be.
ACTION: Patrice made a motion to approve the development agreement for the North Pointe
Neighborhood Park. Reggie seconded the motion and it was approved by a vote of 6 - 0.
DISCUSSION ITEMS - None
DIRECTOR'S REPORT
Update on the American Legion Hall Lease. Janet gave a brief review of the history of the
building and that the American Legion Post had asked to continue to hold their lease. The Post
had a negotiable 10-year lease and asked that the lease be renewed for another 10 years. The City
has agreed to renew the American Legion Post lease for another 10 years and the Post will
continue to meet at the facility.
Update of Aquatics Facilities, Operations, and Programs. John gave an update on the Water
Works Park. He said that in May of 2004 that 62 family passes had been sold and by May 2005,
that 371 family passes had been sold. He added that the local residents are attending the park more
than the non-residents, which is an increased from last year. John said that the sand volleyball
court should be completed in a couple of days. He added that the senior water programs are at
capacity and that home school programs will be using the pool more this year.
John said the diving board at the Civic Center Pool is being replaced.
Project Status Report - Bob said that most of the projects are in the completion stages. Janet said
the Lake Forest Park had been delayed due to development cost estimates being over budget. She
said the citizens are asking for a dog park and construction will begin as soon as possible.
Keep Denton Beautiful - Bob commented that KDB was working with TXDOT, Green Ribbon
Project, on the landscaping of Highway 77. The project will landscape the highway and Park
Maintenance will be responsible for the maintenance of the medians.
The Board decided not to meet in July unless an item needed immediate action.
There being no further business, the meeting was adjourned at 7:00 p.m.
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Planning and Development Department
ACM: Jon Fortune, Assistant City Manager
SUBJECT: DCA05-0002 (Medical Parking)
Hold a public hearing and consider adoption of an ordinance approving an amendment to
Subchapter 14 (Parking Standards) of the Development Code related to parking requirements for
medical facilities. The Planning and Zoning Commission recommends approval (6-0).
BACKGROUND:
Applicant: City of Denton, Denton TX
At the April 13, 2005 public forum on the Development Code, the parking requirements for
medical offices was raised as an issue. The current parking requirement for medical and dental
offices is one space per three hundred fifty (350) square feet of gross floor area. The required
parking is both the minimum and maximum amount of parking allowed. Parking spaces above
the maximum allowed spaces must be constructed with pervious surfaces.
Recent discussions with medical office developers lead staff to believe that the existing
maximum requirement is too low and does not reflect number of parking spaces actually needed.
Additionally, developers report a perceived safety issue associated with using pervious parking
for medical office clients.
A survey of medical parking requirements in nearby communities shows that the Denton
Development Code requirement of one space per 350 square feet of gross floor area is
significantly lower than other communities' requirements.
Table 1
City Category Requirement
Southlake Doctors Office 1 sp. / 150 sq. ft.
Plano Office - Medical 1 sp. / 175 sq. ft.
Addison Medical Clinic 1 sp / 200 sq. ft.
Arlington Medical, Dental Clinic or Office 1 sp / 200 sq. ft.
Frisco Medical & Dental Office 1 sp. / 200 sq. ft.
Dallas Medical Office 1 sp / 200 sq. ft.
McKinney Medical Clinic 1 sp / 200 sq. ft.
Ft. Worth Medical Clinic 1 space per 250 sq. ft. plus
1 space per doctor and 1 space per 4 staff
< 10,000sq. ft. - 1 sp / 200 sq. ft.
Lewisville Office, Medical Clinic 10,000 - 74,999 sq. ft. = 1 sp / 250 sq. ft.
> 75,000 sq. ft. = 1 sp / 300 sq. ft.
1
The Denton Development Code parking requirements do result in significantly less parking
spaces based on a three fold intent of the Code: (1) Lower allowed parking requirements
represents an effort to entice mixed-use developments. (2) Mixed-use development needs less
parking because residential, retail/commercial and office uses have different peak parking
demands at different times of the day. Thus, the same parking space is repeatedly used by
various uses in the development. Developers are no longer required to provide for peak parking
demand (typically utilized only between Thanksgiving and Christmas). (3) Denton's regulations
allow for additional parking space if those space are pervious resulting in less storm water run-
off.
The medical development trend in Denton has not been in mixed-use developments, although it
is clustering near the two hospitals. Adjacent parking lots are connected but the ability to
"share" parking does not exist because the demand for parking in a single use development (e.g.,
medical office) occurs at the same time by all the users. Apparently, the amount of staff to
operate a medical office continues to increase and then so does the need for parking. Pervious
parking can be utilized for additional parking but it may not be a suitable walking surface for the
clientele visiting a doctor's office and could be restricted to staff parking.
Based on recent development trends and the potential issues associated with pervious paving,
staff recommends increasing the parking requirements for medical and dental offices from one
space per three hundred fifty (350) square feet of gross floor area to one space per two hundred
fifty (200) square feet of gross floor area.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
April 13, 2005 - Planning and Zoning meeting
April 27, 2005 - Planning and Zoning Work Session
May 25, 2005 - Planning and Zoning Public Hearing
FISCAL INFORMATION
None available.
OPTIONS
1. Approve as submitted.
2. Approve with conditions
3. Deny.
4. Postpone consideration.
5. Table item.
RECOMMENDATION
The Planning and Zoning Commission recommends approval (6-0, Noble absent.)
2
ATTACHMENTS
1. May 25, 2005 P&Z minutes
2. Ordinance
Respectfully submitted:
Kelly carpenter, AICP
Director of Planning and Development
3
CondenseIt`r"`
Page 97
1 COMMISSIONER STRANGE: The next ite[n is
2 number 6D, which is an amendment to subchapter 14, parking
3 standards of the Denton Development Code relating to
4 parking requirements for medical facilities.
5 MR. REICIIHART: oood evening. This item
6 came up at the recent quarterly review regarding amount of
7 medical parking that we have required in the Code. In the
8 backup I've identified, you know, what we believe are the
9 reasons why our parking requirements are as they are,
10 basically trying to promote the mixed use development and
I 1 U-share parking.
12 Based on the survey we conducted on other
13 adjacent communities, it appears that the average or the
14 mean of the what other communities require is one space
15 per 200 square feet for medical parking. And that is what
16 we're proposing to amend the Code to. With that, I'd
17 answer any questions that you have.
18 COMMISSIONER STRANGE: Anyone have any
19 questions of staff? Okay. I will open the public hearing
20 but seeing no one left in the audience, I doubt there's
21 anyone left to speak, but I'll ask the question, does
22 anybody else wish to speak on this item? If not, I'll
23 close the public hearing. Do we have any continents or
24 questions from the Cormnission. W. Roy.
25 COMMISSIONER ROY: can't we think of some
Page 98
I really difficult questions to ask at this moment?
2 COMMISSIONER STRANGE: Last chance at Mr.
3 Reicl-thart, Somebody should come up with at least one.
4 COMMISSIONER ROY: I can't think of
5 anything difficult to ask at this time.
6 So on that basis, I'm going to recommend or
7 move that we approve the change as recommended.
8 COMMISSIONER WATKINS: Second.
9 COMMISSIONER STRANGE: I have a motion by
10 Mr. Roy and a second by Mr. Watkins. Any discussion?
11 Please vote. And the vote passes 6-0.
12 Are there any other items coming before the
13 Conmlission? If not, we'll declare the meeting adjourned
14 at 8:35.
15
16
17
18
19
20
21
22
23
24
25
PLANNING AND ZONING MINUTES MAY 25, 2005 Page 97 - Page 98
SA0ur Documents\Ordinances1051DCA05-0002.DOC
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING PORTIONS OF
SUBCHAPTER 14 OF THE DENTON DEVELOPMENT CODE PERTAINING TO THE
NUMBER OF PARKING SPACES REQUIRED FOR MEDICAL AND DENTAL USES,
PROVIDING FOR A PENALTY CLAUSE WITH A MAXIMUM AMOUNT OF $2,000.00 FOR
VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE. (DCA05-0002)
WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton,
Texas adopted the Denton Development Code (the "Development Code"); and
WHEREAS, after providing notice and after conducting a public hearing as required by law
on May 25, 2005, the Planning and Zoning Commission recommended approval of certain changes
to Subchapters 14A.B.5 of the Development Code pertaining to the number of parking spaces
required for medical and dental uses; and
WHEREAS, after providing notice and after conducting a public hearing as required by law,
the City Council finds that the subject changes to the Development Code are consistent with the
Comprehensive Plan and are in the public interest; NOW, THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference.
SECTION 2. Subchapter 14A.B.5 of the Development Code is hereby amended to require
medical and dental offices to provide one (1) parking space per two hundred (200) square feet of
gross floor area. All other provisions of subchapter 14 not inconsistent with this amendment shall
remain in full force and effect.
SECTION 3. Any person violating any provision of this ordinance shall, upon conviction, be
fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall
constitute a separate and distinct offense.
SECTION 4. If any section, subsection, paragraph, sentence, phrase or word in this
ordinance, or application there of to any person or circumstance is held invalid by any court of
competent jurisdiction, such holding shall not effect the validity of the remaining portions of this
ordinance, and City Council of the City of Denton, Texas hereby declares it would have enacted such
remaining portions despite any such invalidity.
SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its
passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be
published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton,
Texas, within ten (10) days of the date of its passage.
PAGE 1
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 ERIM CITY ATTORNEY
BY:
PAGE 2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Planning and Development Department
CM/DCM/ACM: Jon Fortune, Assistant City Manager
SUBJECT - Z05-0005 (2001 Fort Worth Drive)
Hold a public hearing and consider adoption of an ordinance approving a zoning change for 2.3
acres from Employment Center - Industrial (EC-1) to Employment Center-Commercial (EC-C).
The property is generally located at 2001 Fort Worth Drive. The Planning and Zoning
Commission recommends approval (6-0).
BACKGROUND
Applicant: RK Properties Denton, TX
The 2.3 acre property is located at 2100 Fort Worth Drive (US 377) south of the Union Pacific
Railroad Crossing. The property owner proposes to rezone the property from Employment
Center Industrial zoning to Employment Center Commercial zoning in order to develop the site
for retail uses. The site is currently vacant and contains an uninhabitable single-family structure.
The subject property was zoned Light Industrial prior to the adoption of the Development Code
along with the entirety of the properties on the east side of Fort Worth Drive abutting to the
Acme Brick Manufacturing Plant.
Staff mailed 14 notices to property owners within 200' of the subject property. Two responses in
favor of the rezoning were received by the Planning and Development Department.
FISCAL INFORMATION
N/A
OPTIONS
1. Approve as submitted.
2. Approve with conditions.
3. Deny.
4. Postpone consideration.
5. Table item.
RECOMMENDATION
The Planning and Zoning Commission recommends approval (6-0).
1
PRIOR ACTION/REVIEW
The Planning and Zoning Commission continued a public hearing on this rezoning from May 11,
2005 to May 25, 2005 at the request of the applicant.
ATTACHMENTS
1. Staff Analysis
2. Maps
3. Public Notification (Property Owner Notification Map)
4. Site Photos
5. May 25, 2005 Planning and Zoning Commission Meeting Minutes
6. Ordinance
Prepared by:
Stephen A. Cook, AICP
Planning Policy Coordinator
Respectfully submitted:
Kelly Carpenter, AICP
Director of Planning and Development
2
ATTACHMENT 1
Staff Analysis
Summary of Zoning Request
The 2.3 acre property is located at 2100 Fort Worth Drive (US 377) south of the Union Pacific
Railroad Crossing. The property owner proposes to rezone the property from employment center
industrial zoning to employment center commercial zoning in order to develop the site for retail
uses.
Existing Condition of Property
The proposed site is currently vacant and contains an uninhabitable single-family structure. The
subject property was zoned Light Industrial prior to the adoption of the Development Code.
Adjacent Zoning
North: Employment Center - Industrial (EC-C), Single-family dwellings.
South: Employment Center - Industrial (EC-C), Vehicle Repair
East: Industrial Center - General (IC-G), Brick Manufacturing Plant.
West: Employment Center - Commercial (EC-C), Commercial Retail.
Comprehensive Plan Anal
The subject site is located in an "Employment Center" future land use area, which may
incorporate facilities such as large retail, office and light industrial areas. The proposed request
for a zoning change is in compliance with the Denton Plan.
Development Review Anal
Access
Access to the subject site is from Fort Worth Drive (US 377). There exists an unimproved right-
of-way (ROW) on the southern edge of the property.
Transportation
The applicant will provide sufficient information during the platting process to determine
whether a Traffic Impact Analysis (TIA) is required. The Denton Mobility Plan classifies Fort
Worth Drive (US 377) as a primary major arterial road, which is maintained by TXDOT.
Additional right-of-way dedication will be required on Fort Worth Drive (US 377) at time of
platting. Improvements to Rich Street ROW will be required at time of platting.
Public Infrastructure
An 8" water line extension will be required from Daniels across the frontage of the property at
time of development. The extension will require on-site and off-site 20' easements outside of the
TxDOT ROW. The off-site easement width may conflict with existing structures in the
properties to the north of the site.
A capital improvement utility project is planned on Fort Worth Drive (US 377) at this location,
however it is dependent on the timing of the capacity improvement of US 377 by TxDOT which
may not occur any earlier than late 2006. The developer will bear any cost for any water line
extension required to serve this site at this time.
3
Development Code / Zoning Analysis
Staff Findings
In the previous zoning ordinance prior to the adoption of the Development Code, the property
was zoned Light Industrial (LI) along with the entirety of the properties on the east side of Fort
Worth Drive abutting to the Acme Brick Manufacturing Plant.
The following tables highlight the differences in uses available between the EC-I and EC-C
categories. Other non-permitted and permitted uses which are identical between the zoning
categories have been deleted from this table for brevity.
Categories
Commercial Land Use Motels P N
Retail Sales and Service P L(18)
Outdoor Recreation P N
P= Permitted, N=not permitted, SUP= Specific Use Permit
Required, L(X) = Limited as defined in Section 35.5.8
Categories Industrial Land Use Wholesale Nurseries N L(32)
Distribution Center N P
Wholesale Storage and Distribution N L(34)
Construction Materials Sales N P
P= Permitted, N=not permitted, SUP= Specific Use Permit
Required, L(X) = Limited as defined in Section 35.5.8
L(18) under Retail Sales and Service limits retail uses to only those retail stores associated with
gas stations. Rezoning the tract from EC-I to EC-C will allow retail uses to be permitted by right,
and would not have any special restrictions as to size of the retail use other than what the
physical site limitations cause as to setback requirements.
The uses contained within the EC-C zoning district are not out-of character with the surrounding
existing zoning.
Staff Recommendation
Based on the above findings, staff recommends approval of the requested zoning change from
Employment Centers- Industrial (EC-1) to Employment Centers-Commercial (EC-C).
4
ATTACHMENT 2
Location/Zoning Map NORTH
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Industrial Centers
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5
ATTACHMENT 3
Notification Map NORTH
a v ~ ~
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Limits of 500' Notification
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A
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A SITE
0
1 0~
Limits of 200' Notification
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Scale: None
Public Notification Date: April 26, 2005
200' Legal Notices* sent via Certified Mail: 14
Number of responses to 200' Legal Notice:
■ In Opposition: 0
■ In Favor: 2
■ Neutral: 0
Opposition: 0.0%
*A copy of the notification list can be obtained at
City Hall West, 221 N. Elm Denton TX 76201
6
ATTACHMENT 4
Photo 1: View of subject property from US 377 toward the East.
VP
r
F
f J
Photo 2: View of subject property from US 377 toward the Southeast.
7
CondenseIt"m
Page 65 Page 67
1 COMMISSIONER STRANGE: we'll move on to the 1 property. Just to let you know, we are in contract with a
2 next case, which is Item No. 5B, which is rezoning of 2 developer from Atlanta, Butler Properties. They build
3 approximately 2.3 acres from Employment Center Industrial 3 Dollar General Stores nationwide. And that is the
4 to Employment Center Commercial. Let's take just one 4 intended use of this property.
5 little quick second to let the crowd kind of clear. Okay. 5 The Dollar General store could not go in
6 Mr, Cook. 6 the zoning as it was currently zoned. So this is a
7 MR. COOK: Thank you, Nlr. Chair. Members 7 contingency to the contract. If this, zoning is not
8 of the Commission, my name is Stephen Cook. I'm a 8 approved, then they go away. If it is approved, they move
9 planning policy coordinator with the city. Item 6B is a 9 forward with platting and the development of the store
10 rezoning of the 2.3 acres employment center. The site is 10 themself. As owner of the property, we arejust asking
11 on 2001 Fort Worth Drive just adjacent to the ACME brick I 1 for the rezoning. I'll answer any questions.
12 building the construction site, manufacturing site on 12 COMMISSIONER STRANGE: Anyone have a
13 off of US 377. The applicant wishes the site to be 13 question of Mr. Frazier? Thank you.
14 rezoned from E.ct to ECC in order to construct a retail 14 MR, FRAZIF.R: Thank you,
is service. The site is would remain within the 15 COMMISSIONER STRANGE: I don't have any
16 employment centers land use designation and is appropriate 16 cards from anyone else who wishes to speak either in favor
17 as part of the Denton Comprehensive Plan. 17 or in opposition to this item. Is that correct'? Is there
18 To date we have had two letters in favor 18 anyone here who did want to speak and did not fill out a
19 from the from surrounding properties. One across the 19 card? Okay. Seeing no other speakers, then we will close
20 street which is a from a mobile home park and 20 the public hearing, Any discussion? Mr. Roy.
21 residential structures just north of the site. This is 21 COMMISSIONER ROY: AS I understand it, it's
22 the site as it stands today. Currently, on the one item 22 still going to remain employment center and they're only
23 to make note of the site is that there is a dedicative 23 asking at this time for rezoning and so the project would
24 right-of-way on the southern portion of the site that is 24 have to be developed. And we talked about landscaping at
25 designated as a right-of-way to originally dedicated to 25 the work session. And so all of those requirements would
Page 66 Page 68
1 the Denton County, but carne over when the site was 1 be still under the employment center category?
2 annexed. That site that right-of-way has never been 2 MR. FRAZIER: Yes, sir. This is changing
3 approved to a road. So it is currently still a rural 3 from ECI, which is a more light manufacturing type of end
4 landscape on that site. But it is actually a current 4 of the spectrum under that land use category to FCC. which
5 right-of-way. 5 is the second C means commercial, which will allow more
6 Staff recommends approval on the rezoning. 6 retail uses and therefore, the reasoning for the rezoning.
7 And I'm available for any questions. 7 And at the time of development, landscaping, buffering
8 COMMISSIONER STRANGE: Any questions? Mr, 8 from a single family residential structures on to the
9 Roy. 9 north side would also have to be enforced with the site
10 COMMISSIONER ROY: Yeah, TelL Ire a little 10 design standards of the of the Development Code.
11 hit more about that right-of-way. Where would it go? I 1 COMMISSIONER ROY: okay. Thank you.
12 MR. COOK: Currently the right-of-way is 12 COMMISSIONER STRANGE: Mr. Watkins.
13 designated as Rich Street. Let me get the pointer to get 13 COMMISSIONER WATKINS: Yes, Mr. Chairman.
14 going here. Is dedicated as right-of-way as Rich Street 14 I'd like to make a motion if it's proper.
15 on the south side of the site, and that road does not 15 COMMISSIONER STRANGE: It's the time to do
16 exist at this point. It is just an unimproved and it 16 so.
17 does not actually go anywhere. It terminates at ACME 17 COMMISSIONER WATKINS: I would move
18 brick property. 18 approval of Z-05-0005.
19 COMMISSIONER ROY: Thank you. 19 COMMISSIONER STRANGE: Do we have a second?
20 COMMISSIONER STRANGFJ Okay. We will open 20 COMMISSIONFR ROY: Second.
21 the public hearing. Is the applicant here and do they 21 COMMISSIONER STRANGE: Got a motion by Mr.
22 wish to speak'? 22 Watkins, a second by Mr, Roy. Any discussion'? If not,
23 MR. FRAZIER: Don Frazier. Frazier 23 please vote. Vote passes 6-0.
24 Commercial Real Estate, 1740 West Minister Street, 1 24
25 represent the seller of the property, current owner of the 25
PLANNING AND ZONING MINUTES MAY 25, 2005 Page 65 - Page 68
SAOur Documents\Ordinances1051Z05-0005.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY" OF DENTON, TEXAS, PROVIDING FOR A ZONING
CHANGE FROM THE EMPLOYMENT CENTER INDUSTRIAL (EC-1) ZONING DISTRICT
TO THE EMPLOYMENT CENTER COMMERCIAL (EC-C) ZONING DISTRICT FOR
APPROXIMATELY 2.3 ACRES OF LAND LOCATED AT 2001 FORT WORTH DRIVE, 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. (Z05-0005)
WHEREAS, RK Properties has applied for a change in zoning for approximately 2.3
acres of land located at 2001 Fort Worth Drive and more particularly described in Exhibit "A"
attached hereto and made a part hereof as Exhibit "A" (the "Property") from Employment
Centers Industrial (EC-1) zoning district to Employment Centers Commercial (EC-C) zoning
district classification and use designation; and
WHEREAS, on May 25, 2005, the Planning and Zoning Commission recommended
approval of the requested change in zoning; and
WHEREAS, the City Council finds that the change in zoning is consistent with the
Denton Comprehensive Plan 1999-2020; NOW, THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. The zoning district classification and use designation of the property is
hereby changed from Employment Center Industrial (EC-1) zoning district to Employment
Center Commercial (EC-C) zoning district classification and use.
SECTION 3. The City's official zoning map is amended to show the change in zoning
district classification.
SECTION 4. If any provision of this ordinance or the application thereof to any person
or circumstance is held invalid by any court, such invalidity shall not affect the validity of other
provisions or applications, and to this end the provisions of this ordinance are severable.
SECTION 5: Any person violating any provision of this ordinance shall, upon
conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance
is violated shall constitute a separate and distinct offense.
SECTION 6. This ordinance shall become effective fourteen (14) days from the date of
its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be
published twice in the Denton Record-Chronicle, a daily newspaper published in the City of
Denton, Texas, within ten (10) days of the date of its passage.
PASSED AND APPROVED this the day of 92005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
2
Exhibit A
2001 TL Worth Drive
FIELD NOTES to all that certain tract of land situafAd'in the William Daniel Survey, Abstract Number 378, City of Denton
County, Texas and being a resurvey of all of a.. i.1138 acre tract of land described In the deed to Herman Landrip
recorded in Volume 290, Page 73 of the Deed Record$ of Denton County, Texas as recognized and occupied on the
ground the subject tract tieing more partlcular4. described as follows:
BEGINNING for the Northeast comer of the:trac being described herein at a W capped Iron rod set for corner at the
Northeast corner of said 2.38 acre tract;:.
THENCE South 23 Degree 13 Minutes 34 Soconos Waist a distan&-? i 236.63 feet to a Vim iron rod found for comer;
THENCE due West a distance of 403.72 feet to la 'J:" capped Iron rod set for corner in the East line of State Highway
0377;
THENCE North 114 Degree 57 Minutes 04 Secafids West with tk*_ l=ast tine of said Highway a distance of 218,21 lest to
a Ma" capped Iron set for corner;
THENCE due East a distance of 516.00 feet to the PLACE OF BEGINNING AND CONTAINING 2.30 acres of land, more
or less.
ABBREVIATIONS: AC.a Acres; ASPIC.- Asphalt; BLDG m13uIlding; DR.= Brick; CAB.- Cabinet; CONC. Concrete; Corm
Corner DOC.- Document; F.LM.A.a Federal Emergency Manapernent Agency; FCP-. Fence Corner Post; Flia Fire
Hydrant; FR.- Frame; L u An Length; NO.- Number; O.-+ Overhead Electric; O. f.-Overhead Telephone; P.O.B. % Point
of Beginning; P.O.C,= Point of Cormnencemett, PG.w Page; R.-'Radlus; R.P.L8.R Registered Public Land Surveyor;
RES. s Residence; STI,z Story; O.T.a0verhead Telephone; U.Q.- Underground; VOL - Volume; WMZ Water Meter
FLOOD STATEMENT. I have examined the F.E.MJL Flood insurance Rate Map for the City of Denton County, Texas,
Community Number 480194, effective date 84 946 and that map Indicates that part of the property shown hereon is
In Shaded Zone X Which Is defined as "Areas of 50"earalood" and part of the property shown hereon is in Zone X
which is defined as "Areas determined to be outside of 500-year4lood" as shown on Panel 00180 of the said map.
CERTIFICATION: This Survey was performed in connection with the transaction described in G.F.No.
9OU73DE. 1 hereby certify that l have conducted an accurate on the ground survey of the premises depicted hereon
and described In the legal description attached hereto.and that the findings and results of said survey are true and
correct to the bast of my knawledge and.bebef and that the size,," and location of the permanent Improvements are
as shown, and that said survey correctly-sb6" the k6cation of•all alleys; streets, rights-of-way, and easements of
record of which the undersigned hatbgisroaifftod. ikffedtinglhe subject premises according to the descriptions of
record, and that except as shown there are rip. xisible eahcroachrnarnts, visible overlaps, visible conflicts or visible
protrusions,
J.E. THOMPSON. R.P.L..S. No. 4857 - DATE: x
J E. TVU~:Y ^q
y...•~ 853 ~e ^•ry~ .
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Planning and Development Department
CM/DCM/ACM: Jon Fortune, Assistant City Manager
SUBJECT - Z05-0008 (Pockrus Page and I-35)
Hold a public hearing and consider adoption of an ordinance approving a zoning change for
2.456 acres from Regional Center Residential - (RCR-1) to Regional Center Commercial -
Downtown (RCC-D). The property is generally located east of the intersection of Pockrus Page
Road and I-35E Frontage Road. The Planning and Zoning Commission recommends approval
(6-0).
BACKGROUND
Applicant: Landmark Surveyors, Inc. Denton, TX
The 2.456 acre property is located at Pockrus Page Road immediately east of the intersection
with Interstate 35E. The proposed site is currently vacant with the exception of a large propane
storage tank located on the eastern edge of the site. The subject property was zoned Agricultural
prior to the adoption of the Development Code. The property owner proposes to combine the
subject property with an adjacent lot to the south that has access to the I-35E frontage road. The
adjacent lot is currently zoned RCC-D. All of the surrounding property at the intersection of
Pockrus Page and I-35 within the Regional Mixed Use Centers future land use designation is
currently zoned RCC-D with the exception of the manufactured housing park located east of the
subject site which is zoned RCR-1. Modification of the zoning on the subject parcel will increase
the amount of acreage available for retail development adjacent to the interstate.
Staff mailed six notices to property owners within 200' of the subject property. One response in
favor of the rezoning was received by the Planning and Development Department.
FISCAL INFORMATION
N/A
OPTIONS
1. Approve as submitted.
2. Approve with conditions.
3. Deny.
4. Postpone consideration.
5. Table item.
1
RECOMMENDATION
The Planning and Zoning Commission recommends approval (6-0).
ATTACHMENTS
1. Staff Analysis
2. Maps
3. Public Notification (Property Owner Notification Map)
4. Site Photos
5. May 25, 2005 Planning and Zoning Commission Meeting Minutes
6. Ordinance
Prepared by:
dStephen A. Cook, AICP
Planning Policy Coordinator
Respectfully submitted:
s
3 ~
Kelly Carpenter, AICP
Director of Planning and Development
2
ATTACHMENT 1
Staff Analysis
Summary of Zoning Request
The 2.456 acre property is located at Pockrus Page Road immediately east of the intersection
with Interstate 35E. The property owner proposes to rezone the property from Regional Center
Residential-1 (RCR-1) zoning to Regional Center Commercial - Downtown (RCC-D) zoning in
order to develop the site for retail uses.
Existing Condition of Property
The proposed site is currently vacant with the exception of a large propane storage tank located
on the eastern edge of the site. The subject property was zoned Agricultural prior to the adoption
of the Development Code.
Adjacent Zoning
North: Regional Commercial Center - Downtown (RCC-D), Industrial Bakery.
South: Regional Commercial Center - Downtown (RCC-D), Manufactured Home Sales
East: Regional Center Residential 1 (RCR-1), Mobile Home Park.
West: Regional Commercial Center - Downtown (RCC-D), Retail Vehicle Sales.
Comprehensive Plan Anal
The subject site is located in a "Regional Mixed Use Centers" future land use area, which may
incorporate facilities such as large retail, office and multi-family areas. The proposed request
for a zoning change is in compliance with the Denton Plan.
Development Review Anal
Access to the subject site is from Pockrus Page. The property owner proposes to combine the
subject property with an adjacent lot to the south that has access to the I-35E frontage road. The
adjacent lot is currently zoned RCC-D.
Transportation
Pockrus Page is currently a two-lane road classified as a collector street on the Denton Mobility
Plan. Development and access to this road may incur perimeter paving and improvements to the
road adjacent to the property.
Development Code /Zoning Analysis
All of the surrounding property at the intersection of Pockrus Page and I-35 within the Regional
Mixed Use Centers future land use designation is currently zoned RCC-D with the exception of
the manufactured housing park located east of the subject site which is zoned RCR-1.
Modification of the zoning on the subject parcel will increase the amount of acreage available for
retail development adjacent to the interstate.
Staff Findings
In the previous zoning ordinance prior to the adoption of the Development Code, the property
was zoned Agricultural (A).
The following tables highlight the differences in uses available between the RCR-1 and RCC-D
categories. Other non-permitted and permitted uses which are identical between the zoning
categories have been deleted from this table for brevity.
3
Commercial Land Use Categories M :101 Za IIIIIIIII IIIIIIII
Hotels N P
dustrial Categories In Land Use RCR-1 RCC-D
Motels N N
Bakeries N P
Bed and Breakfast L(8) P
Light Manufacturing N L(23)
Retail Sales and Service L(17) P
Veterinary Clinics SUP P
Movie Theaters SUP P
Gas Wells SUP L(27)
Restaurant or Private Club L(11) P
P
Drive-through Facility N Institutional Land Use Categories
Professional Services and Offices L(15) P Business/ Trade School N P
Quick Vehicle Servicing N P Kindergarten, Elementary School P N
Vehicle Repair N P High School SUP P
Auto and RV Sales N P Colleges N P
Outdoor Recreation SUP N Hospital N P
Indoor Recreation N P Medical Centers SUP P
Major Event Entertainment N SUP Mortuaries N P
Commercial Parking Lots N P
Administrative or Research Facilities SUP P
Broadcasting of Production Studio SUP P
• L(8) under Bed and Breakfast uses refers to specific conditions in which traveler's
accommodations are permitted.
• L(17) limits retail development to less than 25,000 square feet.
• L(11) limits restaurants to sit down only dining.
• L(15) limits uses to no more than 5,000 square feet.
• L(23) limits sold on site products and manufacturing area to less than 5,000 square feet.
• L(27) gas wells must comply with Gas Well Drilling and Production requirements.
Rezoning the tract from RCR-1 to RCC-D will allow retail uses to be permitted by right, and
would not have any special restrictions as to size of the retail use other than what the physical
site limitations cause as to setback requirements. The uses contained within the RCC-D zoning
district are not out-of character with the surrounding existing zoning.
Staff Recommendation
Based on the above findings, staff recommends approval of the requested zoning change from
Regional Centers Residential - 1 (RCR-1) to Regional Centers Commercial - Downtown (RCC-
D)
4
ATTACHMENT 2
Location/Zoning Map NORTH
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❑
RCC-D E'~D \
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L_ SITE ~Roa r r=9
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\ : \ RCC-D 4 ~ ~ Lb Q p
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\ cc- ooo~o~ ❑
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Land Use Map
elghb rh od Conte
SITE
6
ATTACHMENT 3
Notification Map NORTH
Eli
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raft ❑ ❑
200' Boundary 500' Boundary
u
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❑ g
0
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Scale: None
Public Notification Date: May 10, 2005
200' Legal Notices* sent via Certified Mail: 6
Number of responses to 200' Legal Notice:
■ In Opposition: 0
■ In Favor: 1
■ Neutral: 0
Opposition: 0.0%
*A copy of the notification list can be obtained at
City Hall West, 221 N. Elm Denton TX 76201
ATTACHMENT 4
i ~
Photo 1: View of subject property Pockrus Page to the South.
p~
Ak
Y.
Photo 2: View of subject property from Pockrus Page to the South.
8
CondenseIt"m
Page 69 Pagc 71
1 COMMISSIONER STRANGE: we will now move on 1 COMMISSIONER ROY: Oh, I'd forgotten that
2 to the regular public hearings. The first is a rezoning 2 decision. Okay. That makes sense. Okay. Thank you.
3 of approximately 2.456 acres from Downtown Center 3 COMMISSIONER STRANGE: Anyone else have a
4 Residential to Regional Center Coltnuercial. This property 4 question of staff? Okay. We'll open the public hearing.
5 is located on the east intersection of Pockrus Page and 5 And I did understand that the applicant is no longer here.
6 I-35 frontage road. Mr. Cook, 6 Is there anyone else who wishes to speak in favor or
7 MR. COOK: Thank you, Mr. Chair. This site 7 against? I'll close the okay, We have no speakers,
8 is on Pockrus Page just off of I-35. The aerial image 8 I'll close the public hearing. And do we have any
9 that you see in front of you is slightly out of date. 9 discussion or a motion? Mrs. Holt.
10 This the site just immediately to the south of the site 10 COMMISSIONER 1-10tT: I move approval.
11 that we're looking for rezoning is currently no longer 11 COMMISSIONER S'T'RANGE: Mr. Roy.
12 selling mobile home structures or manufactured housing. 12 COMMISSIONER ROY: Second.
13 It is now selling RV sales and so the rest of the uses are 13 COMMISSIONER STRANGE: have a motion by
14 as you see on the aerial image. 14 Mrs. Holt, and a second by Mr. Roy. Is there any
15 The applicant wishes to rezone the site 15 discussion? Seeing none, please vote. Vote passes 6-0.
16 from RCR-I to RCCD, Regional Center Conunercial Downtown, 16
17 which is the similar of the surrounding zoning of the 17
18 majority of the property around the around the site. 18
19 The applicant and owner are also in process of adjoining 19
20 these two sites, the site under rezoning the proposition 20
21 and then the existing Rv sale sites. The site is 21
22 contained within the regional center conunercial land use 22
23 designation and is appropriate for the type of intensity 23
24 of retail uses of the under the comprehensive plan. 24
25 To date, the only letter that we have 25
Page 70 Page 72
1 received is a letter in favor and is from the actual owner 1
2 of the site adjacent to the lot. Staff currently 2
3 recommends approval of the rezoning. The did want to 3
4 make mention that the applicant was here earlier and had 4
5 to leave for timing reasons. He did want to mention that 5
6 currently on the site there is a 500 plus gallon propane 6
7 tank that was from the original owners, which was Lone 7
8 Star Gas. That tank will be removed from the site. 8
9 COMMISSIONER STRANGE: Mr, Roy. 9
10 COMMISSIONER ROY: since all of the other 10
11 property around it was RCCD, rm trying to understand the 11
12 logic of why this was originally set up as RCR-I. Can you 12
13 do you know or what the intent was when we rezoned 13
14 this? 14
15 MR. COOK: The subject property was 15
16 originally zoned agricultural tinder the prior zoning 16
17 ordinance prior to the adoption of the Development Code in 17
is February 2002. Under the matrix that was part of the 18
19 agreement of how we would change over from old zoning to 19
20 the new zoning category that the areas that were 20
21 designated as agricultural came in at the lowest point of 21
22 under regional mixed use centers type of zoning 22
23 categorises. And so, therefore, RCR-I was the appropriate 23
24 zoning to be placed to an agriculturally zoned piece of 24
25 property. 25
PLANNING AND ZONING MINUTES MAY 25, 2005 Page 69 - Page 72
S:IOur Documents\Ordinances1051Z05-0008.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING
CHANGE FROM THE REGIONAL CENTER RESIDENTIAL I (RCR-1) ZONING
DISTRICT TO THE REGIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D)
ZONING DISTRICT FOR APPROXIMATELY 2.456 ACRES OF LAND LOCATED ON
POCKRUS PAGE ROAD APPROXIMATELY 700 FEET EAST OF THE FRONTAGE ROAD
OF INTERSTATE 35E, 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. (Z05-
0008)
WHEREAS, Scott Chaney, Property Owner has applied for a change in zoning for
approximately 2.456 acres of land located on Pockrus Page Road approximately 700 feet east of
Interstate 35E Frontage Road and more particularly described in Exhibit "A" attached hereto and
made a part hereof as Exhibit "A" (the "Property") from Regional Center Residential 1 (RCR-1)
zoning district to Regional Center Commercial Downtown (RCC-D) zoning district classification
and use designation, and
WHEREAS, on May 25, 2005, the Planning and Zoning Commission recommended
approval of the requested change in zoning; and
WHEREAS, the City Council finds that the change in zoning is consistent with the
Denton Comprehensive Plan 1999-2020; NOW, THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. The zoning district classification and use designation of the property is
hereby changed from Regional Center Residential I (RCR-1) zoning district to Regional Center
Commercial Downtown (RCC-D) zoning district classification and use.
SECTION 3. The City's official zoning map is amended to show the change in zoning
district classification.
SECTION 4. If any provision of this ordinance or the application thereof to any person
or circumstance is held invalid by any court, such invalidity shall not affect the validity of other
provisions or applications, and to this end the provisions of this ordinance are severable.
SECTION 5: Any person violating any provision of this ordinance shall, upon
conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance
is violated shall constitute a separate and distinct offense.
SECTION 6. This ordinance shall become effective fourteen (14) days from the date of
its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be
I
published twice in the Denton Record-Chronicle, a daily newspaper published in the City of
Denton, Texas, within ten (10) days of the date of its passage.
PASSED AND APPROVED this the day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY: Zo r- a
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2
EXHIBIT "A"
FIELD NOTES
2.456 ACRES
BEING all that certain lot, tract or parcel of land situated in the Gideon Walker Survey
Abstract Number 1330 in the City of Denton, Denton County, Texas, being all that
certain tract of land conveyed by deed from Lone Star Gas Company to Enderby Gas,
Inc., recorded in Volume 759, Page 433, Deed Records, Denton County, Texas, and
being more particularly described as follows:
BEGINNING at an iron rod set for corner in the south line of Pockrus Page Road, a
public roadway, said point being the most northerly northeast corner of Lot 1, Block A of
House Smart Addition, an addition to the City of Denton, Denton County, Texas
according to the plat thereof recorded in Cabinet U, Page 464, Plat Records, Denton
County, Texas;
THENCE S 87° 13; 14" E, 255.00 feet with said south line of said Pockrus Page Road to
an iron rod set for corner in the west line of "Rails to Trails" Reserve, and abandoned
railroad right-of-way described under Document Number 2004-101817, Real Property
Records, Denton County, Texas;
THENCE S 37° 53' 58" E. 400.00 feet with said west line of said "Rails to Trails"
Reserve to an iron rod set for corner, said point being the northernmost corner of Lot 1,
Block 1 of Nationwide Housing Addition, and addition to the City of Denton, Denton
County, Texas according to the plat thereof recorded in Cabinet P, Page 277, Plat
Records, Denton County, Texas;
THENCE S 61 ° 17' 37" W, 100.00 feet with a north line of said Lot 1 of said Nationwide
Housing Addition to an iron rod found for corner at an inner ell of said Nationwide
Housing Addition;
THENCE N 62° 52' 51" W, 191.66 feet with said north line of said Lot 1 of said
Nationwide Housing Addition to an iron rod found for corner, said point being the
northeast corner of Lot 2, Block 1 of Nationwide Housing Addition, an addition to the
City of Denton, Denton County, Texas according to the plat thereof recorded in Cabinet
U, Page 949, Plat Records, Denton County, Texas;
THENCE N 62° 47'07" W, 381.79 feet with the north line of said Lot 2 of said
Nationwide Housing Addition and with a north line of said House Smart Addition to an
iron rod found for corner at an inner ell of said House Smart Addition;
THENCE N 40° 29'50" E, 150.00 feet with an east line of said House Smart Addition to
the PLACE OF BEGINNING and containing 2.456 acres of land.
3
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Parks and Recreation
ACM: Howard Martin, Utilities 349-8232
SUBJECT
Consider adoption of an ordinance of the City of Denton authorizing the City Manager to enter
into a development agreement between the City of Denton and Nicosia & 77, L.P. for the
dedication of parkland, the refund of parkland dedication fees paid in lieu of land dedication at
the North Pointe subdivision and reimbursement of park development fees for the construction of
a neighborhood park; authorizing the expenditure of funds; and providing for an effective date.
(Parks, Recreation and Beautification recommended approval with a vote of 6-0).
BACKGROUND
Nicosia & 77, L.P., the developer of the North Pointe Addition in northwest Denton near the
UNT Research Park Campus has asked consideration for approval of a plan to construct
neighborhood park improvements and be reimbursed for the value of these improvements from
fees paid to the City of Denton as part of their Park Land Development fee requirement.
The developer is required to dedicate parkland per the Parkland Dedication ordinance along with
payment of a park development fee of $291.00 per residential unit constructed. The planned
development will contain a total of 470 residential lots for a total dedication requirement of 3.29
acres. To date the developer has paid fees in lieu of land dedication for the first three phases,
which is being held in escrow until land is dedicated and deeded to the city. The park dedication
amount in escrow is $33,551.16.
In Phase 4, the developer plans to dedicate and deed 10.13 acres for a neighborhood park and
public open space. Upon filing of the plat and receiving a warranty deed, the escrowed amount
will be refunded to the developer per the Parkland Dedication Ordinance. A general
development plan and map have been attached for this park location.
To expedite the development of the neighborhood park, the developer has asked for a
Development Agreement. In this agreement, the developer will grade and construct the
neighborhood park, purchase and install a playground unit and walking trails per the approval of
the Parks and Recreation Department. This action will expedite the development of the park by
several years instead of waiting for all the housing units to be constructed and park development
fees to be received. To date $43,650.00 has been received in phases 1 through 3 for the
construction of 150 homes. The developer is requesting reimbursement of the collected park
fees and any future park development fees to cover the additional costs of the development of the
neighborhood park. To date the developer projects to spend $52,000.00 on the purchase and
installation of a playground unit.
-1-
OPTIONS
Council may approve the development agreement with Nicosia & 77 L.P. as proposed or deny
the request or ask staff to make modifications.
RECOMMENDATION
Staff recommends approval of the proposed ordinance.
ESTIMATED SCHEDULE OF PROJECT
The project is expected to begin summer of 2005
PRIOR ACTION/REVIEW
The Parks, Recreation and Beautification Board considered this item at the June 6, 2005, meeting
and recommends approval with a vote of 6-0. (See Exhibit 4.)
FISCAL INFORMATION
Development Agreement specifies for the refund of Park Dedication fees paid in lieu of land
dedication and re-imbursement of Park Development fees for construction of park
improvements.
BID INFORMATION
Not applicable.
EXHIBITS
1. Ordinance
2. Site Map
3. Development Agreement
4. Park, Recreation and Beautification Board minutes
Respectfully submitted:
Janet Fitzgerald, Director
Parks and Recreation Department
Prepared by:
4~11111~
Bob Tickner, Superintendent
-2-
S:\Our DocumentslOrdinances1051Nicosia-Northpointe Ordinance.doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER TO
ENTER INTO A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DENTON AND
NICOSIA & 77, L.P. FOR THE DEDICATION OF PARKLAND, THE REFUND OF PARKLAND
DEDICATION FEES PAID IN LIEU OF LAND DEDICATION AT THE NORTH POINTE
SUBDIVISION AND REIMBURSEMENT OF PARK DEVELOPMENT FEES FOR THE
CONSTRUCTION OF ANEIGHBORHOOD PARK; AUTHORIZING THE EXPENDITURE OF
FUNDS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Nicosia & 77, L.P., the developer of the North Pointe Addition in northwest
Denton near the UNT Research Park Campus has asked consideration for approval of a plan to
construct the neighborhood park and be reimbursed from fees to be collected from the Park
Development Fee; and
WHEREAS, the City Manager recommends and the City Council deems it in the public
interest that the City enter into the Development Agreement; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference
SECTION 2. The City Manager is hereby authorized to execute on behalf of the City, a
Development Agreement in substantially the form of the Agreement which is attached hereto and
incorporated by reference herein.
SECTION 3. The City Manager is hereby authorized to expend the funds and to undertake
the obligations as set forth in the Agreement.
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
i
BY:
EXHIBIT 1
SaOur Documents)Ordinances1051Nicosia-Northpointe Ordinance.doc
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
Exhibit 2
North Pointe Development PD-120
Parkland Dedication
North Pointe Subdivsion
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Proposed Park areas
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT Agreement (the "Agreement") entered into between
Nicosia & 77, L.P., a Texas Limited Partnership, (the "Developer) and the City of
Denton, Texas, a municipal corporation (the "City") as of the Effective Date as provided
below.
Introductory Provisions
Developer is the owner of and is currently developing a 48.65 acre tract of land
for residential use known as Northpointe Addition, Phase IV, ( the "Project") situated in
the Thomas Toby Survey, Abstract No. 1288, and the B.B.B. & C.R.R. Survey, Abstract
No. 186, in the City of Denton, Denton County, Texas, and being a portion of a called
102.900 acre tract described by Special Warranty Deed with Vendor's Lien granted to
Developer, as recorded in Volume 5144, page 1032, Deed Records, Denton County,
Texas (the "Property"); and
Developer has previously developed tracts of land within the Property known as
Northpointe Addition, Phases I, ll, and III, which contain 311 residential lots. These
residential lots, together with the additional 159 residential lots being developed within
the Project, will comprise a total of 470 residential lots (the "Lots) in phases I through IV
of the Property; and
Developer will improve a portion of the Project, consisting of [a] Lot 1 of Block 6,
and [b] Lot 1 of Block 27 of the Project, as park land for public use, and containing a
children's playground. Lot l of Block 6, and Lot 1 of Block 27 of the Project are
particularly described on the diagram attached to this Agreement as Exhibit "A," and
incorporated herein by reference (the "Parks"). In addition, the attached Exhibit "A"
contains a layout of the playground (the "Park Improvements"); and
A final plat of the Project is attached to this Agreement as Exhibit "B" which
Exhibit is incorporated herein by reference; and
Developer intends to dedicate the Parks to the City to satisfy the City's park
dedication requirements for the Project contained in Section 22-37 if the City's Code of
Ordinances; and
Developer and the City enter into this Agreement to confirm their verbal
agreements conceming [a] the Developer's construction of the Park Improvements and
dedication of the Parks to the City, and [b] the City's reimbursement to Developer of the
costs for construction of the Parks improvements.
A. Agreements
Development Agreement A022-026-001 b
Page 1 of 5
For good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties agree as follows:
1. Construction and Location of Parks Improvements. Developer will construct the
Park Improvements, including [a] grading and dirt work, [b] soil treatments, [c]
installation of City approved playground equipment, benches, and related
equipment, [d] installation of City approved ground coverings for playgrounds,
and [e] construction of City approved sidewalks and walkways.
The location of the Paris Improvements are identified on the attached Exhibit "A".
2. Costs of the Park Improvements. An estimate of the costs of the Paris
Improvements are contained on the Exhibit "C" attached to this Agreement and
incorporated herein by reference. Prior to commencing construction Developer
shall enter into a City's standard three-way construction contract between the
City, Developer and contractor, and shall provide the standard performance and
payment bonds in the full amount of the construction contract. Prior to entering
into the three-way construction contract the Developer will submit the costs to
construct and install the Park Improvements for approval by the City (the "Park
Improvement Costs"). The City will determine if the costs are reasonable. In
addition, the contractor shall comply with all City indemnification and insurance
requirements.
3. Dedication of the Parks. Upon execution of this Agreement, the Developer will
dedicate the Parks to the City. The City and the Developer will work
cooperatively to process the Developer's dedication of the Parks. The City shall
prepare, execute and record all documents related to the dedication and
conveyance of the Parks at the Developer's sole expense. The dedication of the
Parks will satisfy Developer's total park dedication requirements for the Project in
satisfaction of Section 22-37 of the Code of Ordinances. Any payments in lieu of
parts dedication paid to the City for the Project under Section 22-38 of the Code
of Ordinances shall be refunded to Developer.
4. Reimbursement To Developer. Within 30 days after completion and acceptance
of the Park Improvements the City will refund to developer that portion of the
Costs of the Park Improvements equal to the park development fees already
collected by the City under the Project as provided in Section 22-39 of the Code
of Ordinances, but not to exceed the Costs of the Park Improvements. Should
there be insufficient collected park development fees to cover the Costs of the
Park Improvements, as new park development fees are collected for lots in the
Project, such fees shall be applied to the remaining unpaid portion of the Costs of
the Park Improvements.
5. Subseauent Paris Improvements. Should there be park development fees
collected for the Project in excess of the Costs of the Paris Improvements and
should Developer desire to construct additional park improvements to the Paris
Development Agreement A022-026-001 b
Page 2 of 5
(the "Additional Park Improvements"), Developer may petition City to amend this
Agreement to permit such Additional Park Improvements. The City in its sole
discretion may permit such Additional Park Improvements. Should the City agree
to such Additional Park Improvements, construction of same shall comply with
the three-way construction contract, bidding, cost approval, bonding, and
insurance requirements set forth in paragraph 2 above. In no event shall
Developer be entitled to reimbursement of any costs of the Park improvements
or Additional Park Improvements that exceed the amount of the park
development fees collected pursuant to Section 22-39 of the Code of
Ordinances. Any such additional costs will be the sole responsibility of the
Developer.
B. Miscellaneous
1. This Agreement contains the full and complete Agreement of the parties
hereto, and all prior negotiations and Agreements pertaining to the subject matter
hereof, are expressly merged in this Agreement. Each party hereto disclaims any
reliance on any facts, promises, undertakings or representations (oral or written) made
by any other party, or his agent or attorneys, prior to or contemporaneous to the date of
execution of this agreement.
2. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, legal representatives,
successors, and assigns.
3. All parties acknowledge that this Agreement is the result of substantial
negotiation between the parties. All parties further acknowledge that each party and its
legal counsel have reviewed, revised, and contributed to this Agreement, so that the
normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement, nor any
amendments or exhibits thereto.
4. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provisions thereof and
this Agreement shall be construed as if such invalid, illegal, or unenforceable provision
had never been contained herein.
5. All notices required to be given under this Agreement shall be given in writing
and shall be effective when actually delivered or when deposited in the United States
mail, first class, postage prepaid, addressed to the party to whom the notice is to be
given at the addresses shown below. Notices may be given via facsimile at the
numbers below. Any party may change its address or fax no. for notices under this
Agreement by giving written notice to the other parties, specifying that the purpose of
Development Agreement A022-026-001 b
Page 3 of 5
the notice is to change the party's address. For notice purposes, each party agrees to
keep the other informed at all times of its current address and fax no.
To City:
City Manager
City of Denton
City Hall
215 E. McKinney
Denton, Texas 76201
Fax No. 940.349.8596
To Developer:
6. This Agreement shall be construed under the laws of the State of Texas and
is fully performable in Denton County, Texas. Exclusive venue for any suit to enforce
the terms and conditions of this Agreement shall be a court of competent jurisdiction in
Denton County, Texas.
7. This Agreement may be executed in multiple counterparts, by one or more
signatories, separately and each of such counterparts shall be deemed an original for all
purposes, and all such signed counterparts shall constitute but one and the same
instrument. For purposes of the parties' execution of this Agreement, it is expressly
agreed that a facsimile or telecopy of a party's signature hereto shall be valid, binding
and enforceable as the original-
Signed to be effective the 3 R'0 day of June, 2005 (the "Effective Date")
Developer:
Nicosia & 77, P. , a Texas Limited P nership
By:
Robert S. Beall, president
R S Beall Investments, Inc., - General Partner
City OF DENTON, TEXAS:
By:
Michael A. Conduff
City Manager
215 E. McKinney
Denton, Texas 76201
Development Agreement A022-026-001b
Page 4 of 5
ATTEST:
JENNIFER WALTERS, City SECRETARY
By:
APPROVED AS TO FORM:
EDWIN M. SNY ER, INTERI CITY ATTORNEY
By:
U
ACKNOWLEDGMENTS
STATE OF TEXAS }
COUNTY OF DENTON }
The foregoing Development Agreement was executed before me on the _ day
of , 2005 by Michael A. Conduff, City Manager of the City of
Denton, Texas, a Texas municipal corporation, on behalf of said municipal corporation.
Name:
Notary Public in and for the
State of Texas
STATE OF TEXAS }
COUNTY OF DENTON }
The foregoing Development Agreement was executed before me on the30pday
of 2005 by Robert S. Beall, President of RS Beal Investments,
Inc. a Fc 9 corporation, and the general partner of Nicosia & 77, L.P., a
Texas limited partnership, on behalf of said limited partnership.
\\111111//I _
o~'Yrui4qGWENDE RUTH
Notary Public, State of Texas
My Commission Expires Name:
gl~rfOff ~.i April QS, 2007 Notary Public in and for the
//11111111\\
State of Texas
Development Agreement A022-026-001b
Page 5 of 5
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Exhibit C - Estimated Costs
Developer's Cost
Game Time Equipment $28,723.00
Game Time Impact Surfacing $5,203.00
SunPort Shade Shelter $2,894.00
Installation of Equipment $13,573.73
Earthwork $7,000.00
8 Ft. Trail Sidewalk $8,400.00
Engineering $1,200.00
Total Equipment Cost w/ Curbing $66,993.73
Less: Curbing $2,607.00
Total Equipment Cost w/o Curbing $64,386.73
Parks, Recreation and Beautification Board
Minutes
June 6, 2005
Members present: Teresa Andress, Geri Aschenbrenner, Jo Kuhn, Patrice Lyke, Reggie Heard and
Ross Richardson. Members absent: Chuck Smith. Staff present: Janet Fitzgerald, Bob Tickner,
Janie McLeod, John Whitmore and Jim Mays.
Chair Teresa Andress called the meeting to order at 6:00 p.m.
AWARDS AND RECOGNITION. Janet introduced Bobbie Davis as our new Aquatic Manager
who will be overseeing the water programs for the Water Works Park and the Civic Center Pool.
John said that Bobbie brings a variety of expertise to the water programs including water park
experience in Amarillo, American Red Cross and the Tom Landry facility at Baylor.
APPROVAL OF MINUTES OF MAY 2, 2005. The minutes of May 2nd were approved as
distributed.
ACTION ITEMS
2004 Annual Report - The recommended changes to the report were completed and the report will
be distributed to City Council. Janet said that July is National Park and Recreations month and a
proclamation will be presented at a council meeting in July.
ACTION: Geri made a motion to accept the 2004 Annual Report as presented. Jo seconded the
motion and it was approved with a vote of 6-0.
Proposed Gas Line Easement Airport Open Space Park. Bob reported that Advance Midstream LP
has requested the use of the Airport Open Space Park in order to locate a natural gas transmission
line. An easement has been requested for construction of a natural gas transmission line for four gas
wells at the Denton Municipal Airport. Teresa asked if the Department receives compensation or
revenue from the gas line. Bob said there is a small license fee that benefits the Department.
Patrice asked if any trees would be destroyed. Bob reported that there were some trees along the
fence line that might be removed.
ACTION: Ross made a motion to approve the gas line easement in the Airport Open Space Park.
Reggie seconded the motion and it was approved by a vote of 6 - 0.
Development Agreement for North Pointe Neighborhood Park. Bob reviewed the Park Land
Dedication ordinance and how developers either dedicate land to the city for neighborhood park
or pay fees in lieu of land dedication. R.S. Beall Company, the developer of North Pointe
subdivision in northwest Denton is prepared to make a park land dedication per the ordinance of
10.13 acres. This dedication is in excess of the ordinance requirement of 3.29 acres for the 470-
lot subdivision. The developer had previously paid $33,551.16 in Fees in Lieu of dedication
being held in escrow. With the dedication of land, a refund of these fees is in order per the
ordinance. The second part of the Park Land Dedication Ordinance provides for a Park
Development fee be paid at time of obtaining a building permit. Each new house pays $291.00.
EXHIBIT 4
The Developer has also requested a Developer's Agreement with the City to expedite the
development of a neighborhood park at this location. This agreement will provide for the
developer to construct a park and amenities per Park Department design approval. In the
agreement the developer will receive all accrued Park Development funds to date and receive
future funds received up to the amount of constructed improvements made and future additions
as they develop. The plan is to construct a playground unit at an estimated cost of $62,782.00.
Currently $43,650.00 has been collected from the 100 existing homes in the subdivision.
Teresa asked if the improvements would be built to the quality level of other park improvements.
Bob indicated that they would be.
ACTION: Patrice made a motion to approve the development agreement for the North Pointe
Neighborhood Park. Reggie seconded the motion and it was approved by a vote of 6 - 0.
DISCUSSION ITEMS - None
DIRECTOR'S REPORT
Update on the American Legion Hall Lease. Janet gave a brief review of the history of the
building and that the American Legion Post had asked to continue to hold their lease. The Post
had a negotiable 10-year lease and asked that the lease be renewed for another 10 years. The City
has agreed to renew the American Legion Post lease for another 10 years and the Post will
continue to meet at the facility.
Update of Aquatics Facilities, Operations, and Programs. John gave an update on the Water
Works Park. He said that in May of 2004 that 62 family passes had been sold and by May 2005,
that 371 family passes had been sold. He added that the local residents are attending the park more
than the non-residents, which is an increased from last year. John said that the sand volleyball
court should be completed in a couple of days. He added that the senior water programs are at
capacity and that home school programs will be using the pool more this year.
John said the diving board at the Civic Center Pool is being replaced.
Project Status Report - Bob said that most of the projects are in the completion stages. Janet said
the Lake Forest Park had been delayed due to development cost estimates being over budget. She
said the citizens are asking for a dog park and construction will begin as soon as possible.
Keep Denton Beautiful - Bob commented that KDB was working with TXDOT, Green Ribbon
Project, on the landscaping of Highway 77. The project will landscape the highway and Park
Maintenance will be responsible for the maintenance of the medians.
The Board decided not to meet in July unless an item needed immediate action.
There being no further business, the meeting was adjourned at 7:00 p.m.
AGENDA INFORMATION SHEET
AGENDA DATE: June 22, 2005
DEPARTMENT: Utilities
ACM: Howard Martin, Utilities 349-8232r
SUBJECT
Consider recommending approval of a resolution to adopt the Intelligent Transportation System
Deployment Plan (ITS) and grant application phase.
BACKGROUND
The purpose of this ITS plan is to provide strategic deployment of ITS in the City of Denton area.
This plan is intended to provide a framework to guide future ITS deployment decisions, as well as
recommended technologies and locations of ITS deployment where ITS can address specific
changes in the City of Denton. The ITS Master Plan's Executive Summary in attached (Exhibit
1). The ITS plan provides a vision in terms of goals and objectives for transportation including
needs of all groups of stakeholders. Formal adoption is necessary to proceed with the grant
application phase for ITS implementation.
OPTIONS
1. Approval of the Master Plan with authorization to proceed with the ITS Grant Application
Phase.
2. Approval of the Master Plan.
3. Recommend modifications to the plan be made for final adoption.
4. Recommend that no further ITS activities be undertaken.
RECOMMENDATION
Staff recommends formal adoption of the ITS Master Plan with authorization for staff to proceed
forward with the grant application process (Option 1). Approval of the enclosed resolution
(Exhibit 2) is the action step to formally adopt the plan. Federal grant funds are available to assist
the city with the implementation of the ITS Master Plan. The existing agreement with the
consultant includes the grant application process as a part of the scope of services. The grant
applications will be prepared by Bruce Abernethy, PE, with KCS Systems.
Any grants available to the City of Denton will be require review and approval by city council
prior to acceptance.
FISCAL INFORMATION
More detail fiscal information will be presented to the city council and may vary depending upon
the specific grant-funding source available. Staff hopes to obtain grant funds with zero local
match or in-kind services local match requirement if possible.
EXHIBITS
1. Executive Summary (Full plan available upon request).
2. ITS Resolution
Respectfully submitted,
Jim Coulter
Director of Water Utilities
Prepared by:
Curt Arndt
Traffic Operations Manager
DENTON
~ CITY OF DENTON
ITS DEPLOYMENT PLAN
VOLUME V
EXECUTIVE SUMMARY
ill April 2005
EXHIBIT 1
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
Table of Contents
1.0 Introduction 1
2.0 Need and inventor findings 4
2.1 Arterial Traffic Management 4
3.0 Emergency Operations Center 8
4.0 Emergency Dispatching Center Functional Upgrade 10
5.0 Advanced Public Transit System (APTS) 11
6.0 Summary 13
Page - i
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
Executive Summary for City of Denton - Intelligent Transportation System Deployment Plan
1.0 Introduction
In 1992, the US Congress passed the Intermodal Surface Transportation Efficiency Act (ISTEA)
from which emerged Intelligent Transportation Systems National Architecture and Standards.
Under sponsorship of the US Department of Transportation (USDOT), Federal Highway
Administration (FHWA), and supported by National and International standards organizations
such as the Institute of Traffic Engineers (ITE), National Electrical Manufacturers Association
(NEMA), Institute of Electrical and Electronics Engineers (IEEE), American Association of State
Highway and Transportation Officials (AASHTO), the Society for Automotive Engineers (SAE),
American National Standards Institute (ANSI), Telecommunications Industries Association (TIA),
the International Standards Organization (ISO-204), and other standards were and are being
developed to support surface transportation systems deployment. The Transportation Efficiency
act for the 21 Century (TEA-21) followed ISTEA and now the Transportation Efficiency Act -
2003 (TEA-3) is in a congressional process. TEA-3 will provide continued funding for ITS projects
for 2004 through 2008.
In 2001, the US Congress dictated that the Federal Transit Agency (FTA) comply with National
ITS Architecture and standards as a condition for project funding. The TEA-21 Legislation
required all Traffic Management and Commercial Operations related to projects to comply with
National Architecture and standards. Furthermore, the TEA-21 (and certainly the TEA-3
upcoming legislation) required that all ITS projects for which funding is sought will be in
accordance with an ITS Deployment Plan. Therefore, the ITS Deployment Plan must:
• Be developed through stake-holder inputs
• Consider existing, usable infrastructure
• Comply with National Architecture and standards or show the transition to standards
compliance
• Support regional interoperability
The North Central Texas Council of Governments, through which project grant requests are
processed, fully supports the national objectives and is providing coordination to assure ITS
Systems within the North Central Texas region support international standards as defined by ITS
standards architecture.
Page - 1
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
ITS encompasses, within the City of Denton, TX
• Arterial Traffic Management
• Emergency Management
• Public Transportation Management
• Traveler information preparation and distribution and/or accessibility to travelers
• Airport land-side operations
• Commercial Vehicle Operations as associated with Intermodal Transportation Hubs,
Commercial Centers and Commercial Travel Information Access.
The function of ITS is to improve the efficiency and safety of travel on arterial corridors by
travelers whether a private traveler using a personal vehicle, a commercial traveler or a
traveler using public transportation. The improvement in travel efficiency and safety is achieved
through application of modern technology proven through test and evaluation supported by
FHWA, FTA and associated national laboratories. Through more efficient travel, air quality is
improved, fuel is saved, and traveler time can be more productively utilized. Thus, there is a
clear cost savings. Improved travel safety and security means reduction in loss of life and
property which again provides clear benefits. The FHWA has conducted many past ITS
deployment evaluations and have identified derived benefits. Within this plan, the derived
benefits versus cost provide the benefit-to-cost ratio. ITS offers significant benefits for the
deployment investment.
Since September 11, 2001 (9-11), homeland security has become a major issue. At the federal
level, the office of homeland security has been established and the US Congress is in the
process of making it a major agency. The Governor of Texas has formed a homeland security
taskforce and the NCTCOG has appointed a Regional Homeland Security Coordinator. Major
federal funding is anticipated to support improving homeland security at the state, regional and
local level. Intelligent Transportation Systems provide the core infrastructure to support the
security and defense of our cities from a surface access and disaster recovery standpoint. ITS
provides the communications infrastructure to the street corners and sensors to support traffic
surveillance. ITS already includes Hazardous Material (HAZMAT) transportation management
and sensors are available to identify and alarm traffic engineers and law enforcement of
unauthorized vehicles on non-HAZMAT corridors. ITS supports interoperability between
emergency management for rapid response and with public transit to coordinate rapid
evacuation. The City of Denton has high potential target areas for terrorism and thus ITS
deployment in the city can support improved security objectives for the North Central Texas
Region.
Page - 2
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
The City of Denton ITS Plan was developed using:
• Stake-holder inputs of problems, needs and priorities
• Inventory of existing ITS applicable infrastructure within the city
• Developing the architecture for ITS deployment within the City of Denton utilizing National
ITS Architecture, standards and computer modeling tools. This includes coordination of:
o ITS Use Services
o ITS market packages
o ITS equipment packages
Translating ITS architecture to a physical architecture which:
• Meets needs and standards
• Allows multiple vendor solutions and long-term supportability using
• open standards.
• From which deployment cost can be developed and benefits/cost can be determined.
• Assessing foundation system deployment requirements as well as user needs priority in
finalizing the deployment plan.
The plan is presented in five volumes:
Volume 1 Data Collection
Volume 2 ITS Architecture Model, Turbo Architecture Modeling Software
Volume 3 Conceptual Design of ITS Infrastructure and Functional Capability
Volume 4 ITS Project Cost Benefits and Deployment Plan
Volume 5 Executive Summary (this document)
The city is planning to prepare a separate plan for "LINK" and thus the needs were identified and
Advanced Public Transit Systems (APTS) architecture considered in the ITS modeling.
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City of Denton - ITS Deployment Plan
Volume V - Executive Summary
2.0 Need and inventory findings
The study concluded that the following three ITS subsystems/centers were not up to state-of-
the-art.
• Arterial Traffic Management Center/Systems
• Emergency Operations Center/Systems
• Transit Management Center/Systems
These existing centers could not easily be transitioned to ITS standards supporting required
functionality and interoperability. Thus, new center/systems were required. The study also
found that the Public Safety Access Point (911)/Emergency Dispatching Center/system which
supports 24 hours/7 days per week response to emergency service requests was recently
modernized and that modifications could bring it up to full state-of-the-art capability supporting
center-to-center interoperability. In addition, the study found an established planning activity by
the Emergency Management Team to deploy a Mobile Emergency Management Center.
Considering its political role in homeland security, the Mobile Emergency Management Center
was considered as a high priority deployment.
2.1 Arterial Traffic Management System
The Arterial Traffic Management System (ATMS) was defined as the highest priority for
deployment. The reason for its high priority is that the ATMS provides:
• Foundation infrastructure for all other centers
• Manages corridors associated with all other centers
• Can improve travel efficiency and safety on arterial corridors as proven in many national
ITS deployments.
• Can communicate with en-route travelers
• Provides the nucleus for center-to-center interoperability within the City of Denton
The Deployment Plan includes:
• New field traffic sensors, controllers and electronic messaging
• Modern field communications infrastructure supporting growth as the city grows
• Modern center with functionally integrated software, open architecture computer and
workstation environment and management display.
• Automated congestion management and incident management minimizing work load of
the city traffic engineer.
Page - 4
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
• Ability for the traffic engineer to manually or automatically generate and distribute
traveler information.
• Recommends coordination between city of Denton and TxDOT for managing freeway
traffic on arterials.
The plan shows:
Deployment cost: $4.8 million
Deployment benefits: $123.33
Benefits/Cost: 26:1
Multiple funding sources have been identified. The City hard match plan is (10% to 20%).
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Mobile Emergency Management Center
The Emergency Operations Management has initial funding and is planning a Mobile
Emergency Management Center. This project was considered as the second highest priority
because:
• The current condition and limitations of the Emergency Operations Center (EOC)
• Serviceability needs for a EOC which can be supported by a mobile center
• The mobile center requires additional funding which is certainly available to fully meet
operational needs and ITS standards
Page - 5
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
• The PSAP/Emergency Dispatching Center is reasonably modern
• Homeland security emphasis dictates priority attention to emergency operations thus full
funding for the Mobile Emergency Center was considered as a significant priority.
The mobile center would:
• Be capable of being deployed to a safe location or at the scene of the disaster for onsite
management
• Include mobile communications with all city emergency assets and assets of supporting
jurisdictional emergency resource (per city inter-jurisdictional agreements)
• Provide responsive and effective information presentations to emergency management
staff
• Interoperate with other city ITS centers via wireless digital links
• Facilitate public broadcast media and FEMA network interface
The plan shows:
Deployment cost: $430,000
Deployment benefits: $10 million
Benefit/cost review: 23:1
Funding sources include:
Department of Public Safety
Homeland Defense
Department of Justice
FHWA
Page - 6
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
An example of mobile emergency management center similar to that in the deployment plan is
shown below.
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City of Denton - ITS Deployment Plan
Volume V - Executive Summary
3.0 Emergency Operations Center
The Emergency Operations Center (EOC) is the ITS Center established to manage major man-
caused or nature-caused disasters. Characteristics of these disasters are: High probability of
major loss of property and life.
• Usually requires area evacuation and associated protection against looting and acts
of vandalism against non-occupied and possibly physically compromised property
• May require non-jurisdictional emergency resources including those from County,
other Cities, State, National Guard and even possible private emergency resources
such as public utility repair teams
• Involve high level city management decisions
The current EOC for the City of Denton is not state-of-the-art and has deficiencies in
communications, emergency information access and aids for responsive high level
management decisions. Many cities are collocating the EOCs with Advanced Traffic
Management Systems which provide real-time management information on arterial corridors
and real-time interoperability with the Emergency Dispatching Center and Transit Dispatching
Center. This is recommended for the City of Denton, which will result in cost savings by sharing
of communications and management deployed infrastructure. The EOC is always ready for
operations and is only staffed during a crisis. Staff members are pre-selected and pre-
assigned.
The EOC is defined as priority 3 because the Traffic Management Center is the foundation and
the Mobile EMC can support interim operations. The new EOC will include:
• Survivable communications including wireless links to City emergency resources and
ability to communicate with supplemental emergency resources
• Emergency information processing that provides current status of the crisis, significance
of the destruction, remaining city resources, and management decision aids
• Management display devices that provide EOC staff instant access to information and
assist in coordinated action
The EOC will make high level decisions concerning evacuation, allocation of emergency
resources, and coordination of resources. It will provide emergency information to citizens and
provide public broadcast media interface. The EOC's responsibility is to save lives and
property through effective management of a crisis.
Page - 8 J
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
The plan shows:
Deployment cost: $2 Million
Deployment benefits: $120 Million
Benefit/cost review: 60:1
Funding Sources include:
Department of Public Safety
Homeland Defense
Department of Justice
FHWA and more
Emergency Operation Center, Rome
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Page - 9
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
4.0 Emergency Dispatching Center Functional Upgrade
The Emergency Dispatching Center with Public Safety Access Point (911 call center) is
reasonably new and state-of-the-art. The deployment of upgrade is considered to be high
priority in ITS deployment, upgrades need to include:
• Adding graphical display of emergency locations, vehicle locations and status
• Providing video access from TMC, related to corridor congestion status and video of an
incident
• Providing upgraded in report generation techniques
• Transfer the 91 1 center to full E911 capability
The deployment plan includes:
EMC upgrade planning cost $1 Million
EMC upgrade benefits $15 Million
Benefit/Cost Ratio 15:1
Usually funding is provided by several federal and state agencies like Department of Public
Safety, Department of Health, FHWA etc. The federal funding usually comes as 80% and
remaining 20% is a local match.
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City of Denton - ITS Deployment Plan
Volume V - Executive Summary
5.0 Advanced Public Transit System (APTS)
Intelligent Transportation Systems initiative places a great importance on effective management
of Public Transit System and the associated efficient operation of fixed routes and on-demand
(Paratransit) vehicles. Public use of transit reduces arterial congestion and contributes to
improved air quality. Reliable scheduled services, attention to public transit traveler safety and
use of SMART Cards to make fare payment have proven to help improve ridership. The transit
system further provides evacuation support during a crisis.
The deployment plan for the APTS is to be separate. The scope of this plan precluded a full
analysis of transit operations and a top level design. This document includes an analogy to the
typical APTS.
The APTS includes:
• SMART vehicles with Automated Vehicle Location (AVL), driver information, traveler
information, traveler security, automated passenger count with a digital wireless link to a
modern management center
• Modern information system with standard software supporting AVL, Computer-Aided
Dispatching, driver briefing, vehicle management, emergency management and
Traveler information/trip planning.
• Management displays for overall operations management and statistical data gathering
and analysis for performance evaluation and new route/schedule planning
The APTS is prioritized as 5th in deployment priority. The reason is that emergency
management is considered to be a higher priority and of more importance to the citizens of the
city.
The deployment plan includes:
Deployment Planning Cost: $ 530,000
Vehicle Intelligence: $1.4 million
Center System Total: $2.2 million
Deployment Benefits: $39.74 million
Benefit/Cost Ratio: 15 to 1
Funding is anticipated to be available from Federal Transit Administration.
Page - 11
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
Advanced Transit Dispatching Center, Atlanta
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i
Page - 12
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
6.0 Summary
ITS deployment is very important to:
• Citizens of the City of Denton
• Commerce within the city
• North Central Texas region
ITS deployment shows that a city cares about the efficiency and safety of its arterial
infrastructure and response to emergencies. Modern, reliable traveler information provides
traveler confidence that arterial corridors are being managed and that public transit is available
to meet traveler needs. This is an important plan for the "blue print" for meeting national
architecture and standards as well as being capable of participating in regional:
• Traffic and emergency management
• Public transportation services on a regional basis
• Regional traveler information and trip planning
• Contribution to the commercial vehicle operations on 1-35 (NAFTA Corridor)
• Regional homeland security
Page - 13
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
City of Denton ITS Deployment Plan Stakeholders
City of Denton,
Jerry Clark, Assistant Director, Streets, Drainage, and Traffic Utility Field Services
Jack Richardson, Traffic Manager
Mark Nelson, Director of Airport Transit Operations
Stan Nixon, Public Transportation Manager- LINK
Clovis George, Sergeant, Denton Police Department Support Services
Ross Chadwick, Fire Chief
University of North Texas
Richard Deter, Director/ Chief-of-Police
Ed Reynolds, Sr. Associate Director, Deputy Chief-of-Police
Kurt J. Neufang, Assistant Director, Parking & Transportation Services
Gary C. Gailliard, Associate Director, Assistant Chief of Police
Texas Department of Transportation
Robert Bacon, Dallas District, Assistant Freeway Management Engineer
Keith D. Nabors, Denton County, Roadway Maintenance Supervisor V
Philip E. Simons, Denton County, Roadway Maintenance Supervisor, II
Claud P. Elsom (Buzz), Denton County, Area Engineer
Denton Independent School District
Douglas B. Becker, Assistant Director of Transportation
Chris Oller, Supervisor of Routing
North Central Texas Council of Governments
Natalie Bettger, Senior Transportation Planner
Dan Rocha, Principal Transportation Planner
Denton County Sheriff's Department
Bob Powell, Captain
Page - 14
City of Denton - ITS Deployment Plan
Volume V - Executive Summary
Technical Committee
Jerry Clark, Assistant Director, Streets, Drainage, and Traffic Utility Field
Services Jack Richardson, Traffic Manager
Mark Nelson, Director of Airport Transit Operations
Stan Nixon, Public Transportation Manager- LINK
Bernard (Bud) Vokoun, Senior Engineer-Traffic Engineering & Capital Projects Division
Engineering Department
Loyd Burns, Lieutenant, Denton Police Department
John Hudson, Emergency Coordinator
KCS Systems Team
Bruce Abernethy, PE, PhD
Page - 15
x
17101 Preston Road, Suite 160 S
Dallas, Texas 75248
P 972-380-6363
F 972-380-6367
RESOLUTION NO.
A RESOLUTION BY THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY OF
DENTON TO ADOPT THE INTELLIGENT TRANSPORTATION SYSTEM DEPLOYMENT
PLAN (ITS); AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, in 1992 the United States Congress passed the Intermodal Surface
Transportation Efficiency Act (ISTEA) from which emerged Intelligent Transportation Systems
National Architecture and Standards; and
WHEREAS, the Transportation Efficiency act for the 21St Century, (TEA-21) and now the
Transportation Efficiency Act for 2003 ( TEA-3), which is in process in Congress require continued
funding for ITS projects for 2004 thought 2008; and
WHEREAS, TEX-21 and upcoming TEA-3 require that all ITS projects for which funding is
sought shall be in accordance with an ITS Deployment Plan; and
WHEREAS, the City of Denton desires to adopt the ITS Deployment Plan, attached hereto;
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference.
SECTION 2. That the City Council of the City of Denton, Texas, adopts the Intelligent
Transportation System Deployment Plan (ITS) for the City of Denton, Texas, attached hereto.
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
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. ;SNYDER, INTE ITY ATTORNEY
BY: fD
EXHIBIT 2
SAOur bocuu ts\&esolutions\MTS Presentation DOC
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Fire
CM/DCM/ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider adoption of an ordinance adopting the National Incident Management System (NIMS)
as the standard for incident management by the City of Denton, Texas; and providing for an ef-
fective date.
BACKGROUND
On February 28, 2003, the President issued Homeland Security Presidential Directive (HSPD) 5
that directed the U.S. Department of Homeland Security, in cooperation with representatives of
federal, state, and local government, to develop a National Incident Management System (NIMS)
to provide a consistent approach to the effective management of situations involving natural dis-
asters, man-made disasters or terrorism. NIMS contains a practice model for the accomplishment
of the significant responsibilities associated with prevention, preparedness, response, recovery,
and mitigation of all major and national hazards situations.
NIMS integrates effective practices in emergency preparedness and response into a comprehen-
sive national framework for incident management. The NIMS will enable responders at all levels
to work together more effectively to manage domestic incidents no matter what the cause, size or
complexity.
The benefits of the NIMS system are significant:
• Standardized organizational structures, processes and procedures;
• Standards for planning, training and exercising, and personnel qualification standards;
• Equipment acquisition and certification standards;
• Interoperable communications processes, procedures and systems;
• Information management systems; and
• Supporting technologies - voice and data communications systems, information systems,
data display systems and specialized technologies.
States, territories, tribes, and local entities are required to establish legislation, executive orders,
resolutions, or ordinances to formally adopt the NIMS as a condition to receive federal funds.
The City of Denton Emergency Management Plan is currently based on the Incident Command
System and thus meets the planning components required by NIMS.
OPTIONS
Approve ordinance or deny ordinance.
RECOMMENDATION
Staff recommends the approval of proposed ordinance.
ESTIMATED SCHEDULE OF PROJECT
N/A
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
N/A
FISCAL INFORMATION
HSPD-5 requires that state and local governments adopt NIMS by close of fiscal year 2005 as a
pre-condition to the receipt of federal grants, contract and activities related to the management
and preparedness for certain disaster and hazard situations.
Respectfully submitted:
Ross Chadwick
Fire Chief/Emergency Management Coordinator
SAOur Documents\Emergency ManagementlOrdinances-Resolutions\NIMS Ordinance-doe
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS ADOPTING THE NATIONAL
INCIDENT MANAGEMENT SYSTEM (NIMS) AS THE STANDARD FOR INCIDENT
MANAGEMENT BY THE CITY OF DENTON, TEXAS; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, on February 28, 2003, the President issued Homeland Security Presidential
Directive (HSPD) - 5 that directed the Department of Homeland Security, in cooperation with
representatives of federal, state, and local government, to develop a National Incident
Management System (NEVIS) to provide a consistent approach to the effective management of
situations involving natural disasters, man-made disasters or terrorism; and
WHEREAS, the final NIMS was released on March 1, 2004; and
WHEREAS, the NIIVIS contains a practice model for the accomplishment of the
significant responsibilities associated with prevention, preparedness, response, recovery, and
mitigation of all major and national hazards situations; and
WHEREAS, the HSPD-5 requires that state and local governments adopt the NIMS by
fiscal year 2005 as a pre-condition to the receipt of federal grants, contract and activities related
to the management and preparedness for certain disaster and hazard situations; and
WHEREAS, the City Council for the City of Denton, Texas desires to adopt the NIMS as
required by HSPD-5. NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council hereby adopts the National Incident Management
System dated March 1, 2004.
SECTION 2. The City Manager is authorized to take all actions necessary to implement
the NIMS and to provide appropriate government officials with a copy of this ordinance.
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
BY: I
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Planning and Development
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas providing for the payment of
engineering development review fees for development; providing a severability clause, and an
effective date.
BACKGROUND
The City of Denton reorganized its engineering function and placed engineering development
review in the Planning and Development Department. Now, the City proposes to contract with a
qualified engineering consulting firm to provide development review for engineering issues
associated with development proposals. This effort will include, but not be limited to, reviewing
plats, site plans, construction plans and variance requests during the development permitting for
compliance with the city Development Code and Code of Ordinances. The Consultant will
report directly for the Development Review Administrator in the Planning and Development
Department.
A committee composed of citizens in the local development community and the staff interviewed
all qualified applicant proposals. The committee ranked Freese and Nichols, Inc. number one. A
staff committee has been negotiating a specific scope and price with Freese and Nichols, and on
June 14 staff presented the draft contract and fees for your consideration and discussion. At the
June 14 meeting, the City Council directed staff to pursue a contract with Freese and Nichols that
provided the same level of City internal cost for development review as the City paid in previous
years and to establish engineering development review fees equivalent to the amount that would
have been charged for engineering review had the City adopted a 2% inspection fee
(approximately $400,000 annually). These are "pass through fees" and will cover the contract
expense of engineering development review provided by Freese and Nichols.
On June 14, 2005, staff estimated what the fee structure included in the draft contract at the time,
when applied to 2004 development activity, would look like. A table was provided in the agenda
information sheet that demonstrated that the proposed fees, when applied to 2004 development
review activity, would total approximately $412,900 in annual fees. Following the June 14 City
Council meeting, staff met with Freese and Nichols to further negotiate a reduction in this fee
structure. As a result, the fees included in this fee ordinance represent an 18% to 29% reduction
in the fee structure that was presented on June 14. Based on the same 2004 activity the reduced
fees would now total $327,400 annually. Table 1 below compares the previous fees to the
reduced fees included in this ordinance based on the 2004 development activity.
1
Table 1. Application of Fees to 2004 Projects
June 14 June 21
Type of Permit # In 2004 Rate Fees Rate Fees
Commercial Building Permits 79 $1,500 $118,500 $1,300 $102,700
Preliminary Plats
0 to 10 lots 35 $1,300 $45,500 $1,100 $38,500
11 to 50 lots 3 $1,600 $4,800 $1,200 $3,600
51 to 100 lots 5 $2,100 $10,500 $1,600 $8,000
>100 lots 3 $2,800 $8,400 $2,000 $6,000
Final Plats
0 to 10 lots 39 $2,500 $97,500 $1,900 $74,100
11 to 50 lots 1 $4,700 $4,700 $3,500 $3,500
51 to 100 lots 4 $7,500 $30,000 $5,500 $22,000
>100 lots 10 $9,300 $93,000 $6,900 $69,000
Total $412,900 $327,400
This ordinance simply adopts fees that match or cover the schedule of charges included in the
Freese and Nichols' contract which is being considered as a separate agenda item. Fee items
titled "plan reviews not submitted as part of a plat" and "clearing and grading permit review"
have been added. The "clearing and grading" item was mentioned to you at the June 14
worksession. The "plan reviews not submitted as part of a plat" item is a necessary charge that
was inadvertently left of the original fee schedule. It will be necessary to bring back to the City
Council an amendment to this fee schedule to reflect fees for annexation studies and
easement/ROW dedications. These items are difficult to price and were not included at this time
until further conversations can be had with Freese & Nichols. It is possible that these items can
be resolved by the June 21 City Council meeting.
The proposed fee structure is included as Exhibit A of the fee ordinance and will become
effective July 20. The fees are applicable to all developments even if the development is already
in progress as of the effective date of this ordinance, but a fee will not be retroactively charged
for an application, plan or plat that was accepted for filing prior the effective date, unless it was
approved within 180 days after the effective date. In other words, if an application is currently
being reviewed by city staff, the fees will not apply unless the approval of the application, plan,
or plat exceeds 180 days from July 20 (the effective date of the ordinance).
OPTIONS
1. Adopt the ordinance approving the fees.
2. Deny the ordinance approving the fees.
3. Continue the item and direct staff to bring additional options back to Council.
2
FISCAL INFORMATION
An amendment to the development review fee ordinance is needed to enable the "pass through"
fees.
ESTIMATED PROJECT SCHEDULE
The development community is invited to a "Developers Breakfast" on June 22 at which these
improvements to the development review process will be discussed. Information will be sent to
engineers/architects/owners concerning the new fee schedule for engineering review, and the
improved review process. Additional meetings with the development community will also be
scheduled. Applications received by July 20 and ensuing application dates will be reviewed
under the consultant contract and be required to pay the associated fee.
PRIOR ACTION/REVIEW
The re-organization and request for proposals was discussed with Council in work session in the
spring of 2005, and at the June 14, 2005 Council meeting.
EXHIBITS
Attachment A. Fee Schedule Ordinance
Respectfully submitted:
Kelly Carpenter, AICP
Planning and Development Director
3
S:\Our Documents\Ordinances1051Development Review Fee Ordinance-Moc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR THE PAYMENT
OF ENGINEERING DEVELOPMENT REVIEW FEES FOR DEVELOPMENT; PROVIDING
A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE.
WHEREAS, the City incurs administrative expenses in providing an engineering review
of the applications, plats and plans for development which should be properly born by the
developer; and
WHEREAS, the City Council finds that it is in the public interest to require that the
developer/applicant pay to the City engineering development review fees as provided in this
ordinance; and
WHEREAS, the City Council finds that such fees do not exceed the actual administrative
costs incurred by the City to conduct such development reviews; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. Engineering development review fees are hereby established as set forth in
Exhibit "A" attached hereto and made a part hereof by reference (the "Fees" or "Fee'). Each Fee
shall be paid by the developer/applicant at the time of submission of the applicable application,
plan or plat.
SECTION 3. The Fees are applicable to all developments even if the development is
already in progress as of the effective date of this ordinance (the "Effective Date"), but a Fee will
not be retroactively charged for an application, plan or plat that was accepted for filing prior to
the Effective Date, unless such application, plan or plat is not approved within ISO days after the
Effective Date.
SECTION 4. If any section, subsection, paragraph, sentence, phrase or word in this
ordinance, or application there of to any person or circumstance is held invalid by any court of
competent jurisdiction, such holding shall not effect the validity of the remaining portions of this
ordinance, and City Council of the City of Denton, Texas hereby declares it would have enacted
such remaining portions despite any such invalidity.
SECTION 5. This ordinance shall become effective on the day of
12005.
PASSED AND APPROVED this the day of 12005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
Page 2
EXHIBIT A
FEE SCHEDULE FOR ENGINEERING REVIEW OF DEVELOPMENT
APPLICATIONS
Type of Review Cost Cost Cost Cost
1-10 Lots 11-50 51-100 X100
Lots Lots Lots
Preliminary Plan/Plat Review (includes initial review and $ 1,100 $ 1,200 $ 1,600 $ 2,000
one review of the re-submittal
Each Additional Review with Developer on Preliminary $ 500 $ 700 $ 900 $ 1,000
Plan/Plat Review
Final Plan/Plat Review (includes initial review and one $ 1,900 $ 3,500 $ 5,500 $ 6,900
review of the re-submittal
Each Additional Review with Developer on Final $ 500 $ 1,000 $ 2,000 $ 3,000
Plan/Plat Review
CLOMR $ 2,700 $ 2,700 $ 2,700 $ 2,700
LOMB (Following CLOMR) $ 1,000 $ 1,000 $ 1,000 $ 1,000
LOMB (Without CLOMR $ 2,700 $ 2,700 $ 2,700 $ 2,700
Each additional review $ 1,000 $ 1,000 $ 1,000 $ 1,000
TIA $ 2,200 $ 2,200 $ 2,200 $ 2,200
Plan reviews other than those submitted as part of a plat 2% of the construction cost of the public
improvement or $500, whichever is eater
Variances $250 $250 $250 $250
Building Permit Site Plan Review $ 1,300 $ 1,300 $ 1,300 $ 1,300
Clearing/Grading Permit Review $ 350 $ 350 $ 350 $ 350
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Planning and Development
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider adoption of an ordinance amending the Fiscal Year 2004-2005 General Fund Budget
and Annual Program of Services of the City of Denton to allow for an adjustment of One
Hundred Thousand Dollars for the expenditure of funds for consulting engineering services for
development review; declaring an emergency; providing for publication of this ordinance; and
providing an effective date.
BACKGROUND
The City of Denton recently reorganized its engineering function and placed engineering
development review in the Planning and Development Department. Now, the City proposes to
contract with a qualified engineering consulting firm to provide development review for
engineering issues associated with development proposals. This effort will include, but not be
limited to, reviewing plats, site plans, construction plans and variance requests during the
development permitting for compliance with the city Development Code and Code of
Ordinances. The engineering firm of Freese and Nichols, Inc. (F&N) has been selected to
provide this development review service and a proposed contract and fee structure for thier
contract are being considered as separate agenda items.
This ordinance is necessary to amend the 2004-05 budget to provide the necessary appropriation
to enable the pass through of the engineering development review fees associated with
outsourcing the engineering development review process that will become effective July 20. The
budget amendment will provide a $100,000 appropriation to pay F&N for services rendered for
review of development projects in accordance with the fee schedule included in the F&N
contract. The fees generated from the new fee structure in the F&N contract will provide the
revenue necessary to offset the budget amendment. There are approximately three months left in
this fiscal year and the actual amount of the funds necessary to pay F&N will depend on
development applications for the remainder of the year. The $100,000 budget amendment will
provide the necessary appropriation to pay the Engineer Review Fees through the remainder of
the fiscal year.
OPTIONS
1. Adopt the ordinance to amend the fiscal year 2004-05 by $100,000.
2. Deny the ordinance to amend the fiscal year 2004-05 by $100,000.
3. Continue the item and direct staff to bring additional options back to Council.
I
FISCAL INFORMATION
This ordinance will amend the 2004-05 budget and add a $100,000 appropriation to pay F&N for
services rendered for review of development projects in accordance with the fee schedule
included in the F&N contract. The fees generated from the new fee structure in the F&N contract
will provide the revenue necessary to offset the budget amendment.
PRIOR ACTION/REVIEW
The re-organization and request for proposals was discussed with Council in work session in the
spring of 2005, and at the June 14, 2005 Council meeting.
ATTACHMENT
Ordinance.
2
S:VOur Dor mtAOrdin=esNOSBvdgetA.-d.-L-Engmeermg ReAi..DOC
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE FISCAL YEAR
2004-2005 GENERAL FUND BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE
CITY OF DENTON TO ALLOW FOR AN ADJUSTMENT OF ONE HUNDRED
THOUSAND DOLLARS FOR THE EXPENDITURE OF FUNDS FOR CONSULTING
ENGINEERING SERVICES FOR DEVELOPMENT REVIEW; DECLARING AN
EMERGENCY; PROVIDING FOR PUBLICATION OF THIS ORDINANCE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 2004-274, the City Council of the City of
Denton, Texas approved the Fiscal Year 2004-2005 Budget and Annual Program of Services (the
`Budget"); and
WHEREAS, the City Council has directed that the engineering development review of
private development plans and plats be outsourced to a private engineering firm; and
WHEREAS, the City Council by ordinance has authorized the imposition and collection
of an engineering development review fees (the "Development Review Fees") to help defray a
portion of the cost to administer the engineering review; and
WHEREAS, as required by Section 8.08 of the Denton City Charter, the City Council
finds that the expenditure of funds for administration of the engineering review of private
development plans and plats, requires emergency expenditures to meet unusual and unforeseen
conditions associated, which could not by diligent thought and attention be included in the
Budget, such that a budget amendment is both necessary and appropriate; and
WHEREAS, the Council finds that this budget amendment also serves an important
municipal purpose already contemplated as an eligible item for expenditure in the current
Budget, consistent with §102.010 of the Texas Local Government Code; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings set forth in the above preamble to this ordinance are true and
correct, and are hereby adopted.
SECTION 2. The General Fund Budget is hereby amended by the City Council to allow
hundred thousand dollars ($100,000.00) collected as the Development Review Fees be allocated
to the payment of the fees to be charged by the private engineering firm to the City for the
administration of the engineering review of private development plans and plats.
SECTION 3. This ordinance shall be filed with the City Secretary, who is directed to
attach a copy of this ordinance to the Budget and cause this amendment to be published once in
the Denton Record-Chronicle.
S1Our Do -mtsl9rdinao . 05lBudW Amendmeor-EngeaW Revim DOC
SECTION 4. This ordinance was approved by at least five members of the City Council,
as required by Section 8.08 of the City Charter.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of _ 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
U
Page 2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Planning and Development
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider adoption of an ordinance approving a professional services agreement with the firm of
Freese and Nichols, Inc. to provide engineering services for engineering review of the
development review process; authorizing the expenditure of funds therefor; and providing an
effective date.
BACKGROUND
The City of Denton reorganized its engineering function and placed engineering development
review in the Planning and Development Department. Now, the City proposes to contract with a
qualified engineering consulting firm to provide development review for engineering issues
associated with development proposals. This effort will include, but not be limited to, reviewing
plats, site plans, construction plans and variance requests during the development permitting for
compliance with the city Development Code and Code of Ordinances. The Consultant will
report directly for the Development Review Administrator in the Planning and Development
Department.
A committee composed of citizens in the local development community and the staff interviewed
all qualified applicant proposals. The committee ranked Freese and Nichols, Inc. number one. A
staff committee has been negotiating a specific scope and price with Freese and Nichols, and on
June 14 staff presented the draft contract and fees for your consideration and discussion. At the
June 14 meeting, the City Council directed staff to pursue a contract with Freese and Nichols that
provided the same level of City internal cost for development review as the City paid in previous
years and to establish engineering development review fees equivalent to the amount that would
have been charged for engineering review had the City adopted a 2% inspection fee
(approximately $400,000 annually). These are "pass through fees" and will cover the contract
expense of engineering development review provided by Freese and Nichols.
On June 14, 2005, staff estimated what the fee structure included in the draft contract at the time,
when applied to 2004 development activity, would look like. A table was provided in the agenda
information sheet that demonstrated that the proposed fees, when applied to 2004 development
review activity, would total approximately $412,900 in annual fees. Following the June 14 City
Council meeting, staff met with Freese and Nichols to further negotiate a reduction in this fee
structure. As a result, the fees included in the contract represent an 18% to 29% reduction in the
fee structure that was presented on June 14. Based on the same 2004 activity the reduced fees
now total $327,400 annually. Table 1 below compares the previous fees to the reduced fees
included in this ordinance based on the 2004 development activity.
1
Table 1. Application of Fees to 2004 Projects
June 14 June 21
Type of Permit # In 2004 Rate Fees Rate Fees
Commercial Building Permits 79 $1,500 $118,500 $1,300 $102,700
Preliminary Plats
0 to 10 lots 35 $1,300 $45,500 $1,100 $38,500
11 to 50 lots 3 $1,600 $4,800 $1,200 $3,600
51 to 100 lots 5 $2,100 $10,500 $1,600 $8,000
>100 lots 3 $2,800 $8,400 $2,000 $6,000
Final Plats
0 to 10 lots 39 $2,500 $97,500 $1,900 $74,100
11 to 50 lots 1 $4,700 $4,700 $3,500 $3,500
51 to 100 lots 4 $7,500 $30,000 $5,500 $22,000
>100 lots 10 $9,300 $93,000 $6,900 $69,000
Total $412,900 $327,400
This ordinance approves the professional service agreement with Freese & Nichols to provide
engineering development review services. The approval of the fee structure included in the
Freese and Nichols' contract along with a necessary budget amendment will be considered as
separate agenda items. The contract becomes effective July 1. However, the proposed fee
structure based on Exhibit C will become applicable to submittals made as of July 20. Staff feels
that item B7 related to Annexation Studies and item B 10 related to Easement/Row dedications
may need to be amended to reflect more specific charges rather than being based on a negotiated
fee. Staff believes that a set fee provides the developer certainty as to the fees for these items. It
is possible that these items can be resolved by the June 21 City Council meeting. If an
application is currently being reviewed by city staff, the fees will not apply unless the approval
of the application, plan, or plat exceeds 180 days from July 20 (the effective date of the fee
ordinance).
OPTIONS
1. Adopt the ordinance approving the contract.
2. Deny the ordinance approving the contract.
3. Continue the item and direct staff to bring additional options back to Council.
FISCAL INFORMATION
An amendment to the development review fee ordinance to enable the "pass through" fees
estimated at $327,400 annually as well as a budget amendment are being considered as separate.
The City will continue to subsidize engineering development review at the same level as
previous years per City Council direction.
2
ESTIMATED PROJECT SCHEDULE
The development community is invited to a "Developers Breakfast" on June 22 at which these
improvements to the development review process will be discussed. Information will be sent to
engineers/architects/owners concerning the new fee schedule for engineering review, and the
improved review process. Additional meetings with the development community will also be
scheduled. Applications received by July 20 and ensuing application dates will be reviewed
under the consultant contract and be required to pay the associated fee.
PRIOR ACTION/REVIEW
The re-organization and request for proposals was discussed with Council in work session in the
spring of 2005, and at the June 14, 2005 Council meeting.
EXHIBITS
Proposed Freese & Nichols' contract
Respectfully submitted:
Kelly Carpenter, AICP
Planning and Development Director
3
ORDINANCE NO.
AN ORDINANCE APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH THE
FIRM OF FREESE AND NICHOLS, INC. TO PROVIDE ENGINEERING SERVICES FOR
ENGINEERING REVIEW OF THE DEVELOPMENT REVIEW PROCESS; AUTHORIZING
THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Freese and Nichols, Inc., a professional engineering firm (the "Provider") is
being selected as the most highly qualified on the basis of its demonstrated competence and
qualifications to perform the proposed professional services; and
WHEREAS, attached hereto and made a part hereof by reference is a proposed
professional services agreement between the City and the Provider to perform engineering
services for engineering review of the City's development review process (the "Contract"); and
WHEREAS, the fees under the Contract are fair and reasonable and are consistent with
and not higher than the recommended practices and fees published by the professional
associations applicable to the Provider's profession and such fees do not exceed the maximum
provided by law; NOW, THEREFORE,
THE CITY 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 Council hereby approves the Contract. The City Manager, or his
designee is hereby authorized execute the Contract on behalf of the City and to carry out the
rights and duties of the City under the Contract and is authorized to expend funds as required by
the Contract.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 92005.
EULINE BROCK, MAYOR
i
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYD E CITY ATTORNEY
BY:
i
i
i
Page 2
I
PROFESSIONAL SERVICES AGREEMENT
FOR ENGINEERING DEVELOPMENT REVIEW SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
THIS AGREEMENT is made and entered into as of the day of
, 2005, by and between the City of Denton, Texas, a Texas municipal
corporation, with its principal office at 215 East McKinney Street, Denton, Denton County,
Texas 76201, hereinafter called "CITY" and Freese and Nichols, Inc., with its corporate office at
4055 International Plaza, Suite 200, Fort Worth, Texas 76109, hereinafter called
"CONSULTANT," acting herein, by and through their duly authorized representatives.
WITNESSETH, that in consideration of the covenants and agreements herein contained,
the parties hereto do mutually agree as follows:
ARTICLE 1
EMPLOYMENT OF CONSULTANT
The CITY hereby contracts with the CONSULTANT, as an independent contractor, and
the CONSULTANT hereby agrees to perform the services herein in connection with the Project
as stated in the sections to follow, with diligence and in accordance with the highest professional
standards customarily obtained for such services in the State of Texas. The professional services
set out herein are in connection with the following described project:
The Project shall include, without limitation, reviewing plats, site plans, infrastructure
improvements related to development, construction plans and variance requests during
the development permitting for compliance with the City Development Code and Code of
Ordinances. CONSULTANT will work directly for the Development Review
Coordinator in the Planning and Development Department.
ARTICLE 2
SCOPE OF SERVICES
The CONSULTANT shall perform the following services in a professional manner:
A. The CONSULTANT shall perform all those services as necessary and as described in the
CITY's RSFP #3318, which is attached hereto and made a part hereof as Exhibit "A" as
if written word for word herein.
B. To perform all those services set forth in CONSULTANT's Scope of Services dated May
17, 2005, which proposal is attached hereto and made a part hereof as Exhibit "B" as if
written word for word herein.
C. CONSULTANT shall perform all those services set forth in Article IB (Specific Project
Reviews) of the Scope of Services Exhibit B on an individual task order basis.
Page 1
D. If there is any conflict between the terms of this Agreement and the exhibits attached to
this Agreement, the terms and conditions of this Agreement will control over the terms
and conditions of the attached exhibits.
ARTICLE 3
ADDITIONAL SERVICES
Additional services to be performed by the CONSULTANT, if authorized by the CITY,
which are not included in the above-described Basic Services, are described in Exhibit B.
ARTICLE 4
PERIOD OF SERVICE
This Agreement shall become effective upon execution of this Agreement by the CITY
and the CONSULTANT and upon issue of a notice to proceed by the CITY, and shall remain in
force for a period of three years with the possibility of up to three one-year contract extensions as
approved by the CITY. This Agreement may be sooner terminated in accordance with the
provisions hereof. The CONSULTANT 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 City Manager or his designee.
ARTICLE 5
COMPENSATION
A. COMPENSATION TERMS:
1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in
employment of others in outside firms for services in the area of professional
engineering, or related services.
2. "Direct Non-Labor Expense" is defined as that expense for any assignment
incurred by the CONSULTANT for supplies, transportation and equipment,
travel, communications, subsistence, and lodging away from home, and similar
incidental expenses in connection with that assignment.
B. BILLING AND PAYMENT: For and ,in consideration of the professional services to be
performed by the CONSULTANT herein, the CITY agrees to pay CONSULTANT,
based upon the satisfactory completion of the Basic Services tasks set forth in the Scope
of Services as shown in Article II above.
1. CONSULTANT shall perform its work on this Project in accordance with the
provisions of Article IA (Recurring Services) as defined by the Scope of Services of
Exhibit B attached hereto and incorporated herewith by reference. CONSULTANT
shall be paid for these services on a monthly basis for a lump sum amount of $18,800
per month for the length of the contract.
Page 2
2. CONSULTANT shall perform its work on this Project in accordance with the
provisions of Article IB (Specific Project Reviews) as defined by the Scope of
Services of Exhibit B attached hereto and incorporated herewith by reference.
CONSULTANT shall be paid for these services on a task order basis at the rates
described in Exhibit C.
3. Monthly payments to the CONSULTANT will be made on the basis of detailed
monthly statements rendered to and approved by the CITY through its City Manager
or his designee; however, under no circumstances shall any monthly statement for
services exceed the value of the work performed at the time a statement is rendered.
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 his designee, or
which is not submitted in compliance with the terms of this Agreement. The CITY
shall not be required to make any payments to the CONSULTANT when the
CONSULTANT is in default under this Agreement.
5. It is specifically understood and agreed that the CONSULTANT shall not be
authorized to undertake any work ,.pursuant to this Agreement which would require
additional payments by the CITY for any charge, expense, or reimbursement above
the maximum not to exceed fee as stated, without first having obtained written
authorization from the CITY. The. CONSULTANT shall not proceed to perform the
services listed in Article 3 "Additional Services," without obtaining prior written
authorization from the CITY.
C. ADDITIONAL SERVICES: For additional services authorized in writing by the CITY
in Article 3, the CONSULTANT shall be paid based on the Schedule of Charges at an
hourly rate shown in Exhibit "C." Payments for additional services shall be due and
payable upon submission by the CONSULTANT, and shall be in accordance with
subsection B hereof. Statements shall not be submitted more frequently than monthly.
D. PAYMENT: If the CITY fails to make payments due the CONSULTANT for services
and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed
statement thereof, the amounts due the CONSULTANT will be increased by the rate of
one percent (1%) per month from the said sixtieth (60`h) day, and, in addition, the
CONSULTANT may, after giving seven (7) days' written notice to the CITY, suspend
services under this Agreement until the CONSULTANT has been paid in full all amounts
due for services, expenses, and charges, provided, however, nothing herein shall require
the CITY to pay the late charge of one percent (1%) set forth herein if the CITY
reasonably determines that the work is unsatisfactory, in accordance with this Article 5,
"Compensation."
Page 3
ARTICLE G
OBSERVATION AND REVIEW OF THE WORK
The CONSULTANT will exercise reasonable care and due diligence in discovering and
promptly reporting to the CITY any defects or deficiencies in the work of the CONSULTANT or
any subcontractors or subconsultants.
ARTICLE 7
OWNERSHIP OF DOCUMENTS
All documents prepared or furnished by the CONSULTANT (and CONSULTANT's
subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and
shall become the property of the CITY upon the termination of this Agreement. The
CONSULTANT is entitled to retain copies of all such documents. The documents prepared and
furnished by the CONSULTANT are intended only to be applicable to this Project, and CITY's
use of these documents in other projects shall be at CITY's sole risk and expense. In the event
the CITY uses any of the information or materials developed pursuant to this Agreement in
another project or for other purposes than specified herein, CONSULTANT is released from any
and all liability relating to their use in that project.
ARTICLE 8
INDEPENDENT CONTRACTOR
CONSULTANT shall provide services to CITY as an independent contractor, not as an
employee of the CITY. CONSULTANT shall not have or claim any right arising from employee
status.
ARTICLE 9
INDEMNITY AGREEMENT
The CONSULTANT 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 fees
incurred by the CITY, and including, without limitation, damages for bodily and personal injury,
death and property damage, resulting from the negligent acts or omissions of the
CONSULTANT or its 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.
Page 4
ARTICLE 10
INSURANCE
During the performance of the services under this Agreement, CONSULTANT shall
maintain the following insurance with an insurance company licensed to do business in the State
of Texas by the State Insurance Commission or any successor agency that has a rating with Best
Rate Carriers of at least an A- or above:
A. Comprehensive General Liability Insurance with bodily injury limits of not less than
$500,000 for each occurrence and not less than $500,000 in the aggregate, and with
property damage limits of not less than $100,000 for each occurrence and not less than
$100,000 in the aggregate.
B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for
each person and not less than $500,000 for each accident, and with property damage
limits of not less than $100,000 for each accident.
C. Worker's Compensation Insurance in accordance with statutory requirements, and
Employers' Liability Insurance with limits of not less than $100,000 for each accident.
D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate.
E. The CONSULTANT shall furnish insurance certificates or insurance policies at the
CITY's request to evidence such coverages. The insurance policies shall name the CITY
as an additional insured on all such policies, and shall contain a provision that such
insurance shall not be canceled or modified without thirty (30) days' prior written notice
to CITY and CONSULTANT. In such event, the CONSULTANT shall, prior to the
effective date of the change or cancellation, serve substitute policies furnishing the same
coverage.
ARTICLE 11
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
The parties may agree to settle any disputes under this Agreement by submitting the
dispute to arbitration or other means of alternate dispute resolution, such as mediation. No
arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving
one party's disagreement, may include the other party to the disagreement without the other's
approval.
ARTICLE 12
TERMINATION OF AGREEMENT
A. Notwithstanding any other provision of this Agreement, either party may terminate by
giving thirty (30) days' advance written notice to the other party.
Page 5
B. This Agreement may be terminated in whole or in part in the event of either party
substantially failing to fulfill its obligations under this Agreement. No such termination
will be affected 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 non-performance, and not less than thirty (30) calendar days to cure the
failure; and (2) an opportunity for consultation with the terminating parry prior to
termination.
C. If the Agreement is terminated prior to completion of the services to be provided
hereunder, CONSULTANT shall immediately cease all services and shall render a final
bill for services to the CITY within thirty (30) days after the date of termination. The
CITY shall pay CONSULTANT 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 5 "Compensation." Should the CITY
subsequently contract with a new consultant for the continuation of services on the
Project, CONSULTANT shall cooperate in providing information. The CONSULTANT
shall turn over all documents prepared or furnished by CONSULTANT pursuant to this
Agreement to the CITY on or before the date of termination, but may maintain copies of
such documents for its use.
ARTICLE 13
RESPONSIBILITY FOR CLAIMS AND LIABILITIES
Approval by the CITY shall not constitute, nor be deemed a release of the responsibility
and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and
subconsultants for the accuracy and competency of their designs or other work; nor shall such
approval be deemed to be an assumption of such responsibility by the CITY for any defect in the
design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and
consultants.
ARTICLE 14
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 after
mailing:
To CONSULTANT: To CITY:
Freese and Nichols, Inc. City of Denton
Ronald J. Harper, P.E., Associate Kelly Carpenter, AICP, Director
105 S. Tennessee, Suite 101 221 N. Elm
McKinney, Texas 75069 Denton, Texas 76201
Page 6
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All notices shall be deemed effective upon receipt by the party to whom such notice is
given, or within three (3) days after mailing.
ARTICLE 15
ENTIRE AGREEMENT
This Agreement, consisting of nine (9) pages and three (3) Exhibits, constitutes the
complete and final expression of the agreement of the parties, and is intended as a complete and
exclusive statement of the terms of their agreements, and supersedes all prior or
contemporaneous offers, promises, representations, negotiations, discussions, communications,
and agreements which may have been made in connection with the subject matter hereof.
ARTICLE 16
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.
ARTICLE 17
COMPLIANCE WITH LAWS
The CONSULTANT shall comply with all federal, state, and local laws, rules,
regulations, and ordinances applicable to the work covered hereunder as they may now read or
hereinafter be amended.
ARTICLE 18
DISCRIMINATION PROHIBITED
In performing the services required hereunder, the CONSULTANT shall not discriminate
against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or
physical handicap.
ARTICLE 19
PERSONNEL
A. The CONSULTANT represents that it has or will secure, at its own expense, all
personnel required to perform all the services required under this Agreement. Such
personnel shall not be employees or officers of, or have any contractual relations with the
CITY. CONSULTANT shall inform the CITY of any conflict of interest or potential
conflict of interest that may arise during the term of this Agreement.
B. All services required hereunder will be performed by the CONSULTANT or under its
supervision. All personnel engaged in work shall be qualified, and shall be authorized
and permitted under state and local laws to perform such services.
Page 7
ARTICLE 20
ASSIGNABILITY
The CONSULTANT shall not assign any interest in this Agreement, and shall not
transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without
the prior written consent of the CITY.
ARTICLE 21
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be offered or received in evidence
in any proceeding arising between the parties hereto out of or affecting this Agreement, or the
rights or obligations of the parties hereunder, and unless such waiver or modification is in
writing and duly executed; and the parties further agree that the provisions of this section will not
be waived unless as set forth herein.
ARTICLE 22
MISCELLANEOUS
A. The following exhibits are attached to and made a part of this Agreement: Exhibit A,;
RSFP #3318 Engineering Development Review Services; Exhibit B, Scope of Services.
and Exhibit C, Schedule of Charges.
B. CONSULTANT 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 the CONSULTANT involving
transactions relating to this Agreement. CONSULTANT agrees that CITY shall have
access during normal working hours to all necessary CONSULTANT facilities and shall
be provided adequate and appropriate working space in order to conduct audits in
compliance with this section. CITY shall give CONSULTANT reasonable advance
notice of intended audits.
C. 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.
D. For the purpose of this Agreement, the key persons who will perform most of the work
hereunder shall be Ronald J. Harper and Tricia H. Hatley. However, nothing herein shall
limit CONSULTANT from using other qualified and competent members of its firm to
perform the services required herein. .
E. CONSULTANT shall commence, carry on, and complete any and all projects with all
applicable dispatch, in a sound, economical, and efficient manner and in accordance with
the provisions hereof. In accomplishing the projects, CONSULTANT 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.
Page 8
F. The CITY shall assist the CONSULTANT by placing at the CONSULTANT's disposal
all available information pertinent to the Project, including previous reports, any other- s
data mlative to the Project, and arranging for the access thereto, and make all provisions 3
for the CONSULTANT to enter in or, upon public and private property as required for the
CONSULTANT to perfotm services under this Agreement.. j
G. 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., j
E
IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be
f
executed by its duly authorized City Manager', and CONSULTANT 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
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ATTEST: t
JENNIFER WALTERS, CITY SECRETARY
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BY: z
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APPROVED AS TO LEGAL FO
HERBERT L. PRO, BY:
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FREESE AND NICHOLS, INC.
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TRICIA H. ATLEY,1'.E.. ,
PRINCIPAL
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WITNESS:
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BY:
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Page 9
Exhibit A
CITY OF DENTON, TEXAS
RIFSP # 3318
ENGINEERING
DEVELOPMENT REVIEW
SERVICES
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PROPOSAL DUE MARCH 17, 2005
2:00 P.M.
RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
1. INTRODUCTION
The City of Denton (City) is interested in receiving proposals to contract with a qualified
engineering consulting firm (Firm) to provide Development Review for the engineering
factors associated with development. proposals. This effort will include, but not be
limited to, reviewing plats, site plans, infrastructure improvements related to
development, construction plans and variance requests during the development
permitting for compliance with the City Development Code and Code of Ordinances.
The Firm will work directly for the Development Review Coordinator in the Planning
and Development Department. The Development Code, the Criteria Manual, the
universal application, checklists, schedules, 2004-05 caseloads and other information
that the Firm will need to be familiar with in order to make its proposal and to perform
the work are available upon request by contacting the Purchasing office.
IL SCOPE OF WORK
A. EFFORT REQUIRED
1. The Firm's efforts will include the following:
a. Review the City's engineering development review process checklists
and recommend changes to the Development Review Coordinator.
Changes will be recommended based on Firm's development review
experience, its developer experience and best engineering practices.
b. Become familiar with the City's Development Code.
c. Become familiar with all City Master Plans and Long-Range Plans that
will affect development. This will initially require a review of existing
plans (paper and electronic) and meetings with appropriate departments
coordinated by the City's Development Review Coordinator.
d. Attend and present development cases at Planning and Zoning
Commission meetings as required by the Development Review
Coordinator. Since the City has an established case manager system, it is
anticipated that the Firm will only be called upon in special cases to attend
P and Z meetings.
e. Attend Economic Development meetings, development pre-construction
meetings, as required by the Development Review Coordinator. It is
anticipated that the City's Inspections group, in the Utilities and CIP
Engineering Department, will usually be responsible for and attend pre-
construction meetings.
Page 2 of 10
RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
f. Use the City's permitting software (TrakIT). Firm will enter its
comments into the permit tracking system on the schedule provided by the
City. Firm will make the project team(s) and manager available for
training at the City on its permit tracking software. Firm is expected to
communicate by telephone, email and other communication tools with the
City on a daily or more frequent basis.
g. Firm will make its project team(s) and manager available for training on
the City's development review process, codes and customer service
orientation.
h. Firm will scan reviewed/marked up plans for uploading to the TrAIT
system and will make the original marked up plan set available to the
Development Review Coordinator for return to the applicant.
i. Attend/participate in weekly City Development Review Committee staff
meetings to review projects.
j. Firm will make available an engineer to work at the City offices for a
consistent, continuing period each week during which office hours are
offered to applicants.
k. Respond to phone calls from case manager, applicant and/or
Development Review Coordinator within two hours.
2. CIVIL AND PLANNING REVIEWS
a. Provide qualified reviewers for development preliminary and final
plats, site plans, Special Use Permits (SUP), variances, and civil
construction plans.
b. Review developer submittals for compliance with the City Development
Code and the Floodplain Ordinance (Chapter 30) of the Denton Code of
Ordinances.
c. Be familiar with entire Development Code, Criteria Manual,
Comprehensive Plan and all associated Master Plans of the City.
d. Review developer submittals for compliance and coordination with
storm water quality best management practices and other environmental
requirements.
e. Review developer submittals for compliance with or furtherance of
projects identified in the Water/Wastewater Master Plan, Mobility Plan,
Drainage Master Plan, Parks Master Plans, Capital Improvement Plans,
and all other long-range plans.
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RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
f. Uses field data and operational data supplied by the City through the
Development Review Coordinator to supplement the Code, manuals, and
master plans.
g. Issues requiring coordination of development projects with long-range
plans will be identified by the Development Review Coordinator. Firm
may be involved in such coordination meetings as needed by the
Development Review Coordinator.
h. Prepare and submit comments to the City's permitting software system
(Trak1T) on the specified schedule for the oversight of the Development
Review Coordinator.
i. The engineer (Firm) is required to participate in meetings with
applicants and in conversations to explain comments pursuant to the
direction of the Development Review Coordinator. The Firm is required to
notify the case manager of conversations with the applicant, so the case
manager is informed and the record include references to the
conversations.
j. Provide clarification of City requirements during the development
review process to the applicant through the case manager, unless contacted
directly by the applicant. Firm will document all client contact in the
permit tracking software.
k. Firm will attend and participate in weekly Development Review
Committee staff meetings.
1. Firm will attend and participate in meetings with applicant as required.
in. Firm will attend and participate in Engineering Cabinet meetings as
required by the Development Review Coordinator.
n. Firm is a reviewer of plans prepared by professional engineers and is
expected NOT to redesign projects.
B. FIRM REQUIREMENTS
The Firm must demonstrate compliance with the following requirements:
1. Direct employees of the Firm's company must perform all services in this
contract.
2. Firm will not perform any work for private clients on projects that may be
submitted for review and approval through the City's Development
Page 4 of 10
RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
Permitting Process. This does not preclude the Firm from other private
work not meeting this criterion.
3. Firm must have in its employment a multi-disciplinary staff of a size
sufficient to perform the services. These disciplines must include civil
engineering and environmental. The project manager must be a
Professional Engineer, licensed in the State of Texas, with at least ten
years of development design and development review in Texas. For each
sub-discipline (water/wastewater, drainage, transportation, environmental,
and general civil), at least one senior level P.E. will provide development
review guidance and oversight to others (licensed P.E.'s and/or EIT's)
who may work on this program.
4. City desires continuity from the Firm's review team: Firm will provide at
least one team that will stay together over time on this project. Lack of
continuity or frequent changes in staffing for this program may result in
termination of the contract.
5. City reserves the right to veto the participation of Firm's engineer on a
project due to customer service or engineering review issues.
6. Firm will provide customer service to the City and to the applicants in
accordance with the City's customer service mission.
7. Provide comments and feedback in a timely manner in accordance with
City's timelines.
C. PROJECT IMPLEMENTATION SCHEDULE
1. The City has developed the following proposed project implementation
schedule:
Distribution of RFP: February 28, 2005
Proposal Submittal Deadline: March 17, 2005 by 2:00 p.m.
Firm Selection: March 18, 2005 to April 8, 2005
Firm Contract Negotiation: April 11, 2005 to April 15, 2005
Firm Contract Award: May 3, 2005
Firm Starts Work: May 4, 2005
III. SELECTION PROCESS
The responses should address each of the following areas in the same order in which they
are set forth below.
Page 5 of 10
RFSP 3318 ENGINEERING DEVELOPMENT REVIEW SERVICES
A. STATEMENT OF INTEREST
Provide a statement of interest relative to this specific project, including a
statement of availability to undertake this project, personnel proposed for the
project team, firm's perspective on development review and providing services to
assist the City in protecting the general health, safety and welfare of citizens and
its perspective on providing excellent, timely and professional customer service as
well as the time frame defined by the City.
B. FIRMS ORGANIZATION
1. Name and Address of the Firm
2. General overview of the Firm
3. Firm Profile, including:
a. Age
b. Type of firm (limited partnership, corporation, etc.)
c. Firm History
d. Firm Size (including number in each required discipline)
e. Areas of special concentration: particular attention should be paid to
identifying work in development, local government plan review work,
and the preparation of codes and design standards
f. Telephone number and fax number
4. Description of the Team:
a. Identification of the proposed Project Manager
b. Identification of key review personnel
c. Organization Chart
d. Resumes for each key individual on the team and definition of that
individual's role in the project
5. How the firm will be organized in order to provide continuity of project
review over time and on any individual development application
6. Awards
C. REVELANT EXPERIENCE AND CAPABILITIES
Relevant experiences and capabilities of the Firm's team members and team as a
whole will be rated by the City by a review of both completed and on-going
assignments, years of relevant experience, credentials ( P.E., versus, EIT); greater
weight will be given to project experience within the past five (5) years
containing the team members proposed:
1. Relevant project experience information to include:
a. Entity Name and Location.
Page 6 of 10
RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
b. Project description with specific descriptions of responsibilities,
successes and failures related to project scope.
c. Nature of professional services delivered by Firm on each of these
relevant projects, including identification of the responsibility and
scope of the team ;member proposed for participation on the City
proj ect.
d. List of municipal and private developer client references for relevant
projects with contact names and telephone numbers
2. Project Understanding:
a. Briefly describe your understanding of the project scope, important
issues, and City requirements.
3. Project Approach:
a. State briefly the firm's opinion about the most important
considerations and challenges that must be addressed in this project,
and how the firm intends to handle them. Specifically address ease
and efficiency of the permitting process, coordination with the
Development Review Coordinator, availability of the remainder of the
City's review team, and anticipated review and permitting times.
4. Team Organization:
a. Discuss the firm's proposed team organization and communication
methods. Be specific with regard to internal and external
communications, quality control, electronic capabilities, and individual
responsibilities
IV. SELECTION PROCEDURES / DESCRIPTION OF PROCESS
All submissions of proposals must be received by 2:00 p.m. (local time) on March 17,
2005 to be considered.
A. SUBMITTAL OF PROPOSALS
1. One original copy signed by an officer authorized to bind the company, and
nine copies of your completed proposal must be submitted in a sealed envelope by
2:00 p.m. on March 17, 2005. Proposals may be mailed or hand delivered.
However, if sent by mail, the proposer is responsible for the timely delivery of the
proposal.
2. Proposals shall be no more than thirty 8-112" x 11" pages, not including cover
sheet. An additional I-page cover letter is also allowed.
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RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
3. Each sealed proposal shall be properly addressed with the name of the Firm's
firm and the item description "RFSP #3318 Engineering Development Review
Services" written on the outside of the package and delivered to:
City of Denton
Materials Management 1 Purchasing
901-B Texas Street
Denton, TX. 76201
Attn: Tom Shaw
4. Proposals received after 2:00 p.m. on March 17, 2005 will not be considered,
and any proposal received after the schedule closing time will be returned to the
proposer unopened.
5. Questions concerning technical issues related to this proposal should be
directed Kelly Carpenter at 940-349-8504.
6. Questions concerning procurement issues related to this proposal shall be
directed to Tom Shaw at 940-349-7133.
B. PROPOSAL WITHDRAWAL
No proposal may be withdrawn after having been formally opened by the City.
C. LEGAL DISPUTES
Proposer agrees and stipulates that in the event any litigation should occur
concerning or arising out of any proposals submitted in response to a Request for
Proposal, the sole venue of any such legal action shall be in Denton County
Texas.
D. CITY AND LICENSES
The Proposing Firm must be registered by the State of Texas to provide
engineering in the State and have a Texas registered professional engineer on
staff. Any and all fees and taxes are the responsibility of the offerer.
E. REJECTION OF PROPOSALS
The City reserves the right to:
1. Reject any and all proposals, and
2. Issue subsequent Requests for Proposals
Page 8 of 10
RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
F. PROPOSER RESPONSIBILITY - PROPOSAL COSTS
Proposer understands and agrees that this Request for Proposals does not obligate
the City to pay any costs incurred by the proposer in the preparation and
submission of a proposal, or oral interview.
G. PROPOSALS - PUBLIC INFORMATION
After evaluation and award by the City, the unsuccessful proposer may request a
debriefing regarding their proposal. Please contact Tom Shaw at the above
telephone number.
H. PROPOSAL FORMAT
Telecopy (facsimile) proposals will not be accepted by the City.
1. EQUAL OPPORTUNITY / AFFIRMATIVE ACTION
All Equal Employment Opportunity laws apply to this project.
J. STANDARD REQUIREMENTS
Any resulting contract will be subject to the standard requirements, terms and
conditions of the City covering such contracts. An Official and signed copy of
the contract requirements (Agreement) will be furnished to the firm awarded this
contract. Attached is the City's Standard Agreement. Any objection or
modifications to the Agreement, other than the information needed to
consummate it, need to be addressed in the proposal. The City reserves the right
to consider these objections or modifications.
K. CANCELLATION
The City reserves the right to cancel the contract if the services provided are not
meeting the City's needs. Notification will be provided in writing. Payment will
only be provided on those services that are performed prior to possible
cancellation of the contract.
V. EVALUATION AND SELECTION PROCESS
A. PROPOSAL REVIEW
A Selection Team will review the proposals. This Selection Team will include
members of the staff of the City and others familiar with this proposed project.
Selection for the professional services in this Request will be made on the basis of
demonstrated competence and qualifications to perform the services required.
The firms most highly qualified and responsive to the City's need may be invited
Page 9 of 10
RFSP 3318 - ENGINEERING DEVELOPMENT REVIEW SERVICES
for an oral interview, if necessary. Once this selection has been made, the City
will attempt to negotiate a contract with the selected firm at a fair and reasonable
price. Evaluation of proposals will be based on the following:
1. Identification and understanding of the City's requirements and needs
for this project; this includes an understanding of the codes, processes, and
caseload: FACTOR 25%
2. Firm's past performance and experience on projects of this magnitude
and complexity: FACTOR 25%
3. Firm's experience with specific issues related to this project: FACTOR
25%
4. Experience and qualifications of key personnel available for this
project: FACTOR 25%
B. FURTHER INFORMATION
The City has the option to request that a firm provide further information in order
to complete the evaluation.
C. CONTRACTING
The selected firm will be offered a contract for three years for performing these
services (with the possibility up to three one-year contract extensions), although
the City reserves the right to select other firms for future contracts to perform
these services.
D. NOTIFICATION
All proposers will be notified of the firm selected to perform the requested work,
upon final determination by the City.
Page 10 of 10
EXHIBIT B
SCOPE OF SERVICES
Due to the nature of the services to be performed for the City of Denton, (hereinafter called
"CITY"), Freese and Nichols, Inc., (hereinafter called "CONSULTANT") will propose a two
level scope and fee. Since the CITY is requiring recurring services, the first level will be a
standard monthly fee and will cover the services described in Article 1, Section A - Recurring
Services. The second level will be based on specific deliverables such as plat reviews,
construction plan reviews, flood plain reviews, traffic impact analysis, annexation plans, etc.,
described in Article 1, Section B. A separate Task Authorization for each deliverable shall be
processed. A detailed description of the services associated with specific deliverables is
described in Article 1, Section B.
It is understood that CONSULTANT is being engaged to verify that plans and plats prepared by
others meet ordinances in place at the time CONSULTANT reviewed the same plans and plats.
CONSULTANT will be performing a very limited review of these documents and does not
represent or certify them for any other purpose than to verify that the plan and plats as illustrated
and described meet CITY's ordinances in place at the time these plans and plats are reviewed.
ARTICLE I
A. RECURRING SERVICES - CONSULTANT will provide the following services on a
regular and recurring basis:
1. Provide one engineer at CITY's offices for one (1) full day and two (2) half days per
week. The specific schedule for these days will be determined by CITY and
CONSULTANT. During the duration of the contract these days may be modified by
mutual agreement. (For the intial period a day is defined as 8 hours and a half day is
defined as 4 hours.)
2. Attend bi-weekly Development Review Meetings (meeting to be held in conjunction
with time period shown in A.1.).
3. Attend a pre-application and/or pre-design meeting for applicants, such meetings are
to provide applicant with necessary criteria and guidelines to be used in preparing
applications and plans.
4. Attend a biweekly Comment Review Meeting (meeting to be held in conjunction with
time period shown in A.1.)..
5. Attend Planning and Zoning Commission meeting as required.
6. Attend meetings with TxDOT as required.
7. Attend meetings with FEMA as required.
8. Attend meetings with other agencies (Corps of Engineers, franchise utilities, etc) as
required.
B-1
9. Be available to meet with staff or applicants outside of time scheduled to discuss
specific applications.
10. Review current CITY practices, policies, criteria, guidelines, submittal checklists, etc.
on a continual basis and make recommendations for modifications.
11. Make CONSULTANT staff available for initial and ongoing training in the TraklT
program.
12. Be available for CITY meetings or retreats to discuss planning or review process.
13. Provide a weekly report to CITY of all active Projects in a format to be determined.
B. SPECIFIC PROJECT REVIEWS - The following services will be provided by
CONSULTANT on an as needed basis for each applicable Project. CONSULTANT will
not be asked to provide services for Gas Well Applications or Minor Plats.
CONSULTANT assures that they will assign qualified personnel for all review efforts.
Those reviews that require specialized expertise or certifications will be done by, or
under the supervision, of persons having the required expertise or certification.
1. GENERAL DEVELOPMENT PLAN/ PRELIMINARY PLAT/ PRELIMINARY
PLANS REVIEWS
a. Review all applications for administrative completeness.
b. Review subject preliminary plats for general compliance with CITY
Development Code, Criteria Manual and Master Plans. Review items
including, but not limited to, R.O.W. dedications, utility easements, drainage
easements, special easements, survey callouts, road layouts and special notes.
c. Review preliminary site plans, drainage plans, water plans, and sewer plans
for compliance with CITY Development Code, Criteria Manual and Master
Plans. Review plans coordination with easements and R.O.W.'s indicated on
the subject preliminary plat.
d. Review the proposed development for potential impacts governed by FEMA,
Corps of Engineers, TxDOT, and other regulatory agencies. Develop
recommendations on permits and input from these agencies.
e. Develop comments to be posted in TrakIT for the subject preliminary plats
and plans, based upon the review. Include applicable comments previously
generated from CITY review of the project. Submit copies of the review to
CITY.
f. Correspond with the developer's architect/engineer as needed for
implementation of the comments from CITY and CONSULTANT, as directed
by City Development Review Administrator.
B-2
g. Attend City Council and Planning and Zoning Commission meetings as
requested by CITY to answer questions concerning comments and
recommendations on the subject Projects.
h. Provide ONE (1) review of resubmitted application to verify that all
comments have been addressed and to verify that revisions do not cause
internal conflicts or new issues.
i. Document all meetings and,telephone calls with applicants. Post all meeting
and phone call minutes on TraklT.
2. FINAL PLAT REVIEWS
a. Review subject final plats for general compliance with CITY Development
Code, Master Plans, and approved preliminary plat. Review final wording
and exhibit for required R.O.W.'s, and easements.
b. Review status of required regulatory agency permit applications for the
development.
c. Develop comments to be posted in TrakIT for the subject final plats, based
upon the review. Include applicable comments previously generated from
CITY review of the project. Submit copies of the review to CITY.
d. Correspond with the developer's architect/engineer as needed for
implementation of the comments from CITY and CONSULTANT as
requested by City Development Review Administrator.
e. Provide ONE (1) review of resubmitted application to verify that all
comments have been addressed and to verify that revisions do not cause
internal conflicts or new issues.
f. Document all meetings and telephone calls with applicants. Post all meeting
and phone call minutes on TrakIT.
3. FEMA FLOOD STUDY REVIEW
a. Review CLOMR application from the applicant for compliance with the
CITY's Development Code; Drainage Criteria Manual, Flood Protection and
Prevention Ordinance and applicable FEMA regulations. Assist CITY's
Floodplain Administrator with the submittal of the approved CLOMR
application to FEMA for review. Review applicable plats for coordination of
drainage easements and finished floor elevations with the approved CLOMR
application.
b. Review LOMR applications from the applicant for compliance with CITY's
Development Code, Drainage Criteria Manual, Flood Protection and
Prevention Ordinance and applicable FEMA regulations. Assist CITY's
Flood Plan Administrator with the submittal of the approved LOMR
B-3
application to FEMA for review. Review applicable plats for coordination of
drainage easements with the approved LOMB application.
4. TIA REVIEW
a. Develop comment memos based on reviews of each Traffic Impact Analysis
submitted for individual Projects. These comments shall include a list of
recommended improvements and/or fair share requirements based on the TIA.
b. The review shall address the following items:
1) Evaluate assumptions and methodologies used in the TIA
2) Identify omissions and deficiencies
3) Recommend improvements based on the TIA
c. Correspond with the developer's architect/engineer as needed for
implementation of the comments from CITY and CONSULTANT as
requested by City Development Review Administrator.
d. Correspond with TxDOT where TxDOT related issues are raised in the TIA.
5. CONSTRUCTION PLANS/SPECIFICATIONS REVIEWS
a. Review subject construction plans, specifications, details, and contract
documents for compliance with the approved preliminary plans and final
plats. Review for compliance with CITY's design and construction details
standards.
b. Review the plans for coordination with platted or recorded easements.
c. Review the plans for drainage impacts on adjacent landowners.
d. Review calculations in the plans for accuracy and compliance with CITY
standards and acceptable standard engineering practices.
e. Review any lift station proposals for compliance with CITY criteria.
f Review contract documents; for compliance with CITY requirements. These
may include, but not be limited to, performance, payment, and maintenance
bonds, Storm Water Pollution Prevention Plans, technical specifications, bid
proposal with accurate quantities, trench safety plans, certificates of insurance,
and Contractor hold harmless agreements.
g. Aid CITY in identifying and then drafting the engineering content of
developer agreements, pro-rate agreements, over-size participation
agreements, cost share agreements, etc., when requested by CITY.
h. Develop comments for the subject construction plans and contract documents,
B-4
based upon the review. Include applicable comments previously generated
from CITY review of the project. Submit copies of the review to CITY.
i. Correspond with the developer's architect/engineer as needed for
implementation of the comments from CITY and CONSULTANT, as
requested by City Development Review Administrator.
j. Document all meetings and telephone calls with applicants. Post all meeting
and phone call minutes on TrakIT.
6. VARIANCES
a. Review requests for variances as requested by the City Development Review
Administrator and make recommendations on both exaction and physical
hardships.
7. ANNEXATION STUDIES/SERVICE PLAN
a. Review applications for Annexation.
b. Analyze existing conditions and services within the area subject to
annexation.
c. Identify service needs with CITY departments to determine availability of
services and plans for making services available to the annexed area.
d. Develop a Draft Service Plan.
8. BUILDING SITE PLAN REVIEW
a. The CITY will supply site plans,
b. Review site plan for conformance with approved zoning or platting, design
criteria in the Development Code and Criteria Manual, as well as Master
Plans,
c. Review site plan to verify that easements approved during platting, or by
separate instrument, are properly shown and that there are no encroachments.
d. Review site plan to verify that improvements do not encroach on known,
existing utilities and facilities.
e. Provide review comments in TrakIT.
£ Meet with the applicant as required by the City Development Review
Administrator to discuss issues.
9. CLEARING AND GRADING PERMIT REVIEW
a. The CITY will supply clearing and grading plans.
b. Review plans for conformance with approved zoning or platting, design
B-5
criteria in the Development Code and Criteria Manual, as well as Master
Plans.
c. Provide review comments in TrakIT.
d. Meet with the applicant as required by the City Development Review
Administrator to discuss issues.
10. EASEMENTS AND ROW DEDICATIONS
a. Review easements and ROW dedications that are not part of the zoning and/or
platting process.
b. Review the documents to determine adequate size and location of easements.
c. Review ROW dedications to verify compliance with Master Thoroughfare
Plan requirements, proper width, proper location, and proper geometries.
s
d. Provide comments in TraklT.
e. Meet with the applicant as required by the City Development Review
Administrator.
ARTICLE H
ADDITIONAL SERVICES: Additional Services to be performed by CONSULTANT, if
authorized by CITY, which are not included in the above described basic services, are described
as follows:
A. Assisting CITY in the defense or prosecution of litigation in connection with or in
addition to those services contemplated by this AGREEMENT. Such services, if any,
shall be furnished by CONSULTANT on a fee basis (not to exceed $200 per hour)
negotiated by the respective parties and executed as an Ammendment to this
AGREEMENT.
B. Providing environmental support services including the design and implementation of
ecological baseline studies, environmental monitoring, impact assessment and analyses,
permitting assistance, and other assistance required to address environmental issues.
C. Providing basic or additional services on an accelerated time schedule. The scope of this
service include cost for overtime wages of employees and consultants, inefficiencies in
work sequence and plotting or reproduction costs directly attributable to an accelerated
time schedule directed by CITY.
D. Attending meetings and providing assistance, as requested by CITY, with agencies other
than those specified in Article I.
E. Preparing applications and supporting documents for government grants, loans, or
planning advances and providing data for detailed applications.
B-6
F. Appearing before regulatory agencies or courts as an expert witness in any litigation with
third parties or condemnation proceedings arising from the development or construction
of the Project, including the preparation of engineering data and reports for assistance to
the CITY.
ARTICLE III
TIME OF COMPLETION: CONSULTANT is authorized to commence work on the Project
upon execution of this AGREEMENT and agrees to complete the services in accordance with
schedules determined for individual assignments. The majority of the reviews anticipated under
these services are scheduled to be completed with ten (10) days of acceptance by CITY.
CONSULTANT will assign sufficient, qualified personnel to meet CITY requirements. Any
individual task that requires more than ten (10) days, either due to complexity, regulatory
requirements, or external review constraints will be identified at the start of the task and a
specific schedule will be developed and adhered to. A significant minority of applications will
have a five (5) day review time and CONSULTANT will accomplish these reviews within the
specified time frame.
CITY will supply, for CONSULTANT pick-up, applications and supporting documentation no
later than Fridays. Comments on these applications will be due back to CITY by Thursday noon,
two (2) weeks hence, for items with a ten (10) day review; and by Thursday noon, one (1) week
hence, for items with a five (5) day review.
If CONSULTANT's services are delayed through no fault of CONSULTANT, CONSULTANT
shall be entitled to adjust contract schedule consistent with the number of days of delay. These
delays may include but are not limited to delays in CITY or regulatory reviews, delays on the
flow of information to be provided to CONSULTANT, governmental approvals, etc. These
delays may result in an adjustment to compensation as outlined on the face of this
AGREEMENT.
ARTICLE N
RESPONSIBILITIES OF CITY: CITY shall perform the following in a timely manner so as
not to delay the services of CONSULTANT:
A. Provide an office for use by CONSULTANT.
B. Provide computer access at CITY for input into project tracking system (TrakIT).
C. Designate in writing a person to act as CITY's representative with respect to the services to
be rendered under this AGREEMENT. Such person shall have contract authority to
transmit instructions, receive information, interpret and define CITY's policies and
decisions with respect to CONSULTANT's services for the Project.
D. Provide all criteria and full information as to CITY's requirements for the reviews. Furnish
copies of all design and construction standards, ordinances, Master Plans and check lists
needed for review.
E. Assist CONSULTANT by placing at CONSULTANT's disposal all available information
pertinent to the Project including previous reports and any other data relative to the Project.
B-7
F. Arrange for access to and make all provisions for CONSULTANT to enter upon public and
private property as required for CONSULTANT to perform services under this
AGREEMENT.
G. Examine all comments and recommendations presented by CONSULTANT, obtain advice
of an attorney, insurance counselor, civil engineer and other consultants as CITY deems
appropriate for such examination and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of CONSULTANT.
H. Provide such accounting, independent cost estimating and insurance counseling services as
may be required for the Project, such legal services as CITY may require or
CONSULTANT may reasonably request with regard to legal issues pertaining to the
Project.
1. Furnish, or direct CONSULTANT to provide, Additional Services as stipulated Article II
of this AGREEMENT or other services as required.
J. Bear all costs incident to compliance with the requirements of this Article W.
ARTICLE V
DESIGNATED REPRESENTATIVES: CONSULTANT and CITY designate the following
representatives:
CITY's Designated Representative - Name: David Speicher
Address: 221 N. Elm, Denton Texas
Phone: 940-349-8353
Fax: 940-349-7707
E-mail: davidspeicher@cityofdenton.com
CITY's Accounting Representative - Name:
Address:
Phone:
Fax:
E-mail:
CONSULTANT's Project Manager - Name: Ronald J. Harper, P.E.
105 S. Tennessee, Suite 101
McKinney, Texas 75069
Phone: (972) 548-2400
Fax: (972) 548-1055
E-mail: rjh@freese.com
CONSULTANT's Accounting Representative - Name: Bill Grozdanich
1701 N. Market Street, Suite 500
Dallas, Texas 75202
Phone: (214) 920-2500
B-8
Fax: (214) 920-2565
E-mail: b g g7freese.com
B-9
EXHIBIT C
SCHEDULE OF CHARGES
Compensation shall be as follows:
A. For all Services shown as General Consulting Services under Article 1, Basic Services,
CONSULTANT will be compensated a lump sum fee per month to provide effort and
expenses to perform these items. This fee shall be $ 15,500 per month for the duration of the
contract. CONSULTANT reserves the right to negotiate an increase in the monthly cost for
each potential contract extension.
B. For Plan/Plat Review Services under Article 1, CONSULTANT shall be compensated based
on the fee table shown below:
Item Type of Review Cost Cost Cost Cost
# 1-10 Lots 11-50 51100 >100
Lots Lots Lots
B1 Preliminary Plan/Plat Review (includes initial review and $ 1,100 $ 1,200 $ 1,600 $ 2,000
& one review of the re-submittal)
135 Additional Review with Developer on Preliminary $ 500 $ 700 $ 900 $ 1,000
Plan/Plat Review Issues
B2 Final Plan/Plat Review (includes initial review and one $ 1,900 $ 3,500 $ 5,500 $ 6,900
& review of the re-submittal)
B5 Additional Review with Developer on Final Plan/Plat $ 500 $ 1,000 $ 2,000 $ 3,000
Review Issues
B3 CLOMR $ 2,700 $ 2,700 $ 2,700 $ 2,700
LOMB (Following CLOMR) $ 1,000 $ 1,000 $ 1,000 $ 1,000
LOMR (Without CLOMR $ 2,700 $ 2,700 $ 2,700 $ 2,700
Additional. Reviews $ 1,000 $ 1,000 $ 1,000 $ 1,000
B4 TIA $ 2,200 $ 2,200 $ 2,200 $ 2,200
B5 Construction plan reviews other than those submitted 2% of the construction cost of the public
with plats improvement or $500, whichever is greater.
B6 Variances 3250 $250 $250 $250
137 Annexation Studies/Service Plan Prior to review, fee will be negotiated based on
hourl rates listed below.
B8 Building Permit Site Plan Review $ 1,300 $ 1,300 $ 1,300 $ 1,300
B9 Clea g/Grading Permit Review $ 350 $ 350 $ 350 $ 350
B 10 Easements and ROW Dedications Prior to review, fee will be negotiated based on
hourly rates listed below.
C. Additional Services to be performed by CONSULTANT under Article 11, if authorized by
CITY shall be computed based on the following Schedule of Charges:
POSITION MIN MAX
PRINCIPAL 140 195
GROUP MANAGER 120 195
DISCIPLINE LEADER 100 185
SENIOR ENGINEER 100 175
ENGINEER (PE) 85 160
ENGINEER (EIT) 60 120
ELECTRICAL ENGINEER 70 160
C-1
MECHANICAL ENGINEER 60 160
ENVIRONMENTAL SCIENTIST 45 120
ARCHITECT 50 135
LANDSCAPE ARCHITECT 95 130
DESIGNER 50 130
TECHNICIANIDRAFTER 45 90
OPERATIONS ANALYST 55 95
WORD PROCESSING/SECRETARIAL 35 75
OFFICE/CONTRACT ADMINISTRATOR 60 95
CO-OP 30 60
The ranges and individual salaries will be adjusted annually.
EXPENSES
Plotting Printing
Bond $ 4.00 per plot BluelinesBlacklines $0.55 per square foot
Color $15.00 per plot Offset and Xerox Copies/Prints $0.10 per side copy
Vellum$11.50 per plot Color Copies/Prints $0.50 per side copy
Mylar $15.00 per plot Binding $5.75 per book
Travel
$0.405 per mile
OTHER DIRECT EXPENSES
Other direct expenses are reimbursed at actual cost times multiplier of 1.10. They include outside
printing and reproduction expense, communication expense, travel, transportation and
subsistence away from the Dallas/Fort Worth metroplex and other miscellaneous expenses
directly related to the work, including costs of laboratory analysis, tests, and other work required
to be done by independent persons other than staff members.
C-2
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: General Government
CM/DCM/ACM: Betty Williams, Director of Management & Public Information
Michael A. Conduff, City Manager
SUBJECT:
Consider a motion to authorize the Mayor to participate in any special legislative session that
may be called by Governor Perry and to grant her authority to speak on behalf of the City of
Denton; and providing an effective date.
BACKGROUND:
During the 79t State of Texas Legislative Session, the City of Denton was involved in
addressing numerous proposed bills, many of which would be detrimental to the City if passed.
During its regular session, the Legislature did not resolve the school finance reform issue and
Governor Perry has indicated that he is probably going to call a Special Session of the Texas
Legislature.
Any Special Session will require the City of Denton to continue its efforts in addressing
proposed bills. There is also a possibility that other bills, not directly related to school finance
reform, will be filed and will require a response from the City.
Because a Special Session only covers a 30-day period, proposed legislation evolves quickly and
the City will need to be prepared to respond rapidly. In an effort to facilitate the City's ability to
respond quickly, the Mayor would like to have the authority to speak on behalf of the City at any
Special Session of the Texas Legislature.
OPTIONS:
1. Approve the motion to authorize the Mayor to participate in any special legislative
session that may be called.
2. Deny the motion to authorize the Mayor to participate in any special legislative session
that may be called.
RECOMMENDATION
None
PRIOR ACTION/REVIEW (Council, Boards, Commission):
None
FISCAL INFORMATION:
None
ADA/EOE/AREA www.cityofdenton.com (TDD 800-735-2989)
6/17/05 Mayor's Legislative Motion Page 2 of 2
Respectfully submitted:
Betty Williams
Director of Management and Public Information
Prepared by:
L
John Cabrales Jr.
Public Information Officer
ADA/EOE/AREA www.cityofdenton.com (TDD 800-735-2989)
AGENDA INFORMATION SHEET
AGENDA DATE: June 21, 2005
DEPARTMENT: Airport and Transit Operations
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Consider the adoption of an ordinance approving a first amendment to a commercial operator
airport lease agreement between the City of Denton, Texas and Jet Works Aviation, Inc. at the
Denton Municipal Airport; approving a lease estoppel between the City of Denton, Jet Works
Aviation, Inc. and Southwest Bank, which also amends the lease agreement and conditional
approval of an estoppel agreement with Greater East Texas Certified Development Corporation
(CDC); and providing an effective date. The Airport Advisory Board approved
recommendation by a 4-1 vote.
BACKGROUND
On November 16, 2004 the City of Denton and Jet Works Aviation, Inc. (Jet Works) entered into
an Airport Commercial Operator Lease Agreement. Provisions of the lease required that Jet
Works provide the City a legal description and survey of the leased property that would more
accurately describe the leased premises within 30 days of the effective date of the agreement.
Shortly after the approval of the lease agreement, Jet Works indicated they were modifying the
original plans for the structure, increasing area under roof, and would need a larger lease parcel.
Additionally, the extension of a looped waterline servicing the area, proposed changes to the
drainage improvements adjacent to the development site and fire code requirements impacted the
location of the proposed facility and the lease parcel. Jet Works requested and received an
extension to the deadline for submission of the legal survey and drawing.
The modified lease parcel negotiated for the Jet Works development is 83,286 square feet. This
is approximately 24,000 square feet more in lease area than the original estimate for the parcel of
59,398 square feet. To assist with development costs, the Airport Board and staff have agreed to
a secondary parcel approximately 20 feet by 311 feet, measuring approximately 6,403 square
feet. Parcel 2 would be included as part of the lease, however, no rent would be paid on Parcel 2
as it would be viewed as a fire easement. The additional 20 feet along the east property line will
be used to create a building set back of 30 feet from the property line to meet fire code. The
amendment would require Jet Works to pay rental on Parcel 2 should a third party enter into a
lease agreement with the Airport on property immediately east and adjacent to Parcel 2.
The increase in property in the modified leasehold will also allow the airport to accelerate the
rental abatement from 36 months to 25 months. The original lease agreement provides for
I
approximately $26,700 to be applied toward the construction of a tie-in apron to be used for
access to the new apron constructed by the City and TxDOT.
Further, the Airport Advisory Board considered approval of an amendment to allow for an
estoppel agreement with Southwest Bank of Fort Worth that will facilitate favorable financing
for Jet Works through the Small Business Administration. Though the Airport Advisory Board
did not see the final version of the agreement as attached, staff discussed the provisions of the
agreement and received Board approval provided the agreement was finalized meeting the
direction of the Board. Staff believes the attached agreement meets with the Board's direction
and approval. The estoppel agreement will modify default procedures of the standard airport
lease agreement, it will subordinate the Lessor's (City's) lien should a default occur and will
allow provisions to remove proposed improvements to the leasehold in certain situations. The
Lessor's lien on personal property will be subordinate only if monetary default (rent) has been
cured by Lessee or Lender upon requisite notice by city staff. Airport and legal staff have
negotiated terms of the estoppel agreement that will reduce the potential impact should a default
occur and believe the proposed amendments are acceptable due to the caliber of development
and economic benefit Jet Works brings to the Denton Airport.
Finally, Southwest Bank notified the City on Thursday, June 16, 2005, after the June 15 Airport
Board meeting, that a second estoppel agreement would be necessary to secure the loan. The
second agreement will be identical to the estoppel agreement proposed for Southwest Bank
except for the name of the lending institution, The Greater East Texas Certified Development
Corporation (CDC). The Airport Advisory Board has not reviewed the proposed second
agreement in concept or in form. To facilitate Jet Works construction schedule, considering that
the next scheduled City Council meeting is not until July 19, staff is requesting that the City
Council consider the second proposed estoppel agreement and provide conditional approval of
the agreement based on Airport Board Approval of same document at their June 23, 2005 special
called Airport Board Meeting. Should the Airport Board not approve to the proposed second
estoppel as presented and approved by City Council, the CDC estoppel agreement shall not be
effective.
OPTIONS
1. Approve the lease as proposed.
II. Provide staff direction with additional lease options.
RECOMMENDATION
The Airport Advisory Board reviewed the proposed amendment and the proposed language for
the Southwest Bank estoppel agreement at their June 15, 2005 Airport Board Meeting and voted
4-1 recommending the City Council accept the lease amendment and estoppel agreement as
directed by the Advisory Board. The City Attorney's Office reviewed the documents.
Airport Staff recommends approval of the amendment and estoppel as presented.
2
ESTIMATED SCHEDULE OF PROJECT
The amendment and estoppel agreement would become effective upon City Council approval
and continue through the 30th day of November 2034 (30 years). The rental adjustment will be
retroactive to the date of the initial lease, December 1, 2004.
PRIOR ACTION/REVIEW
The Airport Advisory Board reviewed the proposed amendment and the proposed language for
the Southwest Bank estoppel agreement at their June 15, 2005 Airport Board Meeting and voted
4-1 recommending the City Council accept the lease amendment and estoppel agreement as
directed by the Advisory Board. The City Attorney's Office reviewed the documents.
FISCAL INFORMATION
The lease rate for the identified site is $0.05 per square foot per year for the first twenty-five (25)
months of the lease. The increase in additional leasehold property will increase initial annual
lease payments from $2,974 per year to $4,164 per year resulting in an increase of approximately
$1,194 per year for the first two years. At the end of the first twenty-five months the lease rate
will be adjusted by $0.20 per square foot. The lease agreement provides for rate adjustments,
Consumer Price Index adjustments, every other year for the term of the lease.
EXHIBITS
Ordinance
Amendment
Estoppel Agreement
Original Lease Agreement
Respectfully submitted:
Mark Nelson
Director of Airport and Transportation Operations
3
SAOur Doc nts\OrdirwoeslMet Wodo Amendment Orddoc
ORDINANCE NO.
AN ORDINANCE APPROVING A FIRST AMENDMENT TO A COMMERCIAL
OPERATOR AIRPORT LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS
AND JET WORKS AVIATION, INC. AT THE DENTON MUNICIPAL AIRPORT;
APPROVING A LEASE ESTOPPEL BETWEEN THE CITY OF DENTON, JET WORKS
AVIATION, INC., AND SOUTHWEST BANK., WHICH ALSO AMENDS THE LEASE
AGREEMENT AND CONDITIONAL APPROVAL OF AN ESTOPPEL AGREEMENT WITH
GREATER EAST TEXAS CERTIFIED DEVELOPMENT CORPORATION (CDC); AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council and Jet Works Aviation, Inc. ("Jet Works") desire to
amend that certain Airport Commercial Operator Lease Agreement between the City and Jet
Works ("Lease Agreement") to authorize the lease of additional property and to make other
changes in the Lease Agreement; and
WHEREAS, the City Council deems it in the public interest to enter into a Lease
Estoppel with Jet Works and Southwest Bank and Greater East Texas Certified Development
Corporation (CDC), which also amends the Lease Agreement and will facilitate the financing of
the improvements to be constructed by Jet Works under the Lease Agreement; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute a First
Amendment to that certain Airport Lease Agreement for Commercial Operator between the City
of Denton and Jet Works Aviation, Inc. effective December 1, 2004 at the Denton Municipal
Airport in substantially the form of the Amendment which is attached to and made a part of this
ordinance for all purposes.
SECTION 2. The City Manager or his designee is hereby authorized to execute a Lease
Estoppel between the City of Denton, Jet Works Aviation, Inc., and Southwest Bank, which
further amends the Lease Agreement, in substantially the form of the Lease Estoppel which is
attached to and made a part of this ordinance for all purposes.
SECTION 3. The City Manager or his designee is hereby authorized to execute a Lease
Estoppel between the City of Denton and CDC, which further amends the Lease Agreement
which is identical in language to the attached Southwest Bank Lease Estoppel conditioned on the
CDC Lease Estoppel being approved and recommended by the Airport Advisory Board.
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:
1117
Page 2
SA0ur DocnmentslContracts%05Tirst Amendment-Jet Works.doc
FIRST AMENDMENT TO AIRPORT COMMERCIAL OPERATOR
LEASE AGREEMENT WITH JET WORKS AVIATION, INC.
This First Amendment to that certain Airport Lease Agreement Commercial Operator
between the City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor"
and Jet Works Aviation, Inc., a Texas corporation, hereinafter referred to as "Lessee", executed
and effective as of the first day of December, 2004, hereinafter referred to as "Lease".
WITNESSETH
WHEREAS, Lessor and Lessee desire to amend the Lease to authorize the lease of
additional property and make other changes in the Lease as set forth herein.
NOW, THEREFORE, for and in consideration of promises and mutual covenants
contained in this Agreement the parties agree as follows:
SECTION 1. That the first paragraph of subsection A "Land" of Section II "Leased
Premises" is hereby amended to read as follows:
A. Land. A tract of land, identified as Parcel 1 and Parcel 2, being approximately
2.059 acres, drawn, outlined and legally described in Attachment "A", Parcel 1 being
approximately 83,286.7 square feet or 1.912 acres and Parcel 2 being 6,403.3 square feet
or 0.147 acre, such attachments being incorporated herein by reference (the "Leased
Premises").
SECTION 2. That the first paragraph of subsection D "Improvements Provided By
Lessee" of Section H "Leased Premises" is hereby amended to read as follows:
R. D. IMPROVEMENTS PROVIDED BY LESSEE. On the Leased Premises, Lessee
shall construct a hangar/office/shop complex with a minimum of 35,000 square feet. The
hangar space shall be a minimum of 18,000 square feet and the office/shop space shall be a
minimum of 8,000 square feet. Lessee shall construct an aircraft staging ramp 20 feet by
290 feet that will access the public ramp south of the proposed facility. Lessee shall also
construct appropriate culverts or drainage as required by City ordinances in the utility right
of way south and north of the proposed hangar as well as other improvements as determined
necessary by City ordinances (All above described improvements to be constructed by
Lessee are called the "Lessee's Improvements"). Construction of Lessee's Improvements
shall be commenced no later than 270 days and completed no later than 720 days after the
Effective Date (the "Construction Period"). Construction of Lessee's Improvements are
considered commenced upon issuance of a building pen-nit and construction of any portion
of the hangar/office/shop complex. Construction of Lessee's Improvements are considered
complete upon the issuance of a Certificate of Occupancy for the entire hangar/office/shop
complex, and the aircraft staging ramp and drainage and utility improvements are
completed. Provided, however, no permanent structure may be built on Parcel 2 and no
equipment may be staged on Parcel 2 until rental payments are initiated on Parcel 2.
SECTION 3. Subsection A of Section IV "Payments, Rentals and Fees" is hereby
amended to read as follows:
Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement, the
following payments, rentals and fees:
A. Land Rental shall be due and payable to Lessor in twelve (12) equal monthly
installments in the sums set forth below, on or before the 1St day of each and every month
during the term of this Lease Agreement. Lessee has the option to pay annual rentals and
fees in whole on or before the 1St day of October, at the beginning of the City's fiscal year,
each and every year of this Lease Agreement.
1. 12-1-2004 thru 1-20-2047:
Annual rent shall be a sum equal to $0.20 per square foot of the land area contained in the
Leased Premises (the "Original Rent"). Monthly rental shall be 1112th of the annual rent.
Notwithstanding the foregoing, so long as Lessee complies with the construction
requirements of Lessee's Improvements contained in Section E.D. and is not otherwise in
default of any term or condition of this Lease Agreement the annual rent shall be reduced to
a sum equal to $0.45 per square foot of the land area contained in the Leased Premises at the
time of completion of the Leased Improvements (the "Reduced Rent"). Until such time that
the Lessee's Improvements are completed in accordance with Section H.D. Lessee shall pay
the Original Rent. After Lessee's hmprovements are completed Lessee shall pay the
reduced rent through 1-20-2007 and will be entitled to a refund or credit for the amount paid
in excess of the Reduced Rent for the period of this Lease Agreement up to and through the
date of completion of Lessee's Improvements.
2. 1-21-2407 thru l l-30-2034:
Annual rent shall be a sum equal to $0.20 per square foot of land area contained in the
Leased Premises as adjusted in accordance with Section IV.C. In this regard the rent
beginning 1-21-2007 may be greater than $0.20 per square feet. Monthly rental shall be
1112th of the annual rent.
Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease
rate per square foot, as adjusted by the CPI-U referenced in Section IV.C., times the number
of square feet comprising all easements established in accordance with Section II.E.
Provided, however, Parcel 2 shall only receive a rental abatement until such time as the
Lessor enters into a lease on the property east of Parcel 2. Should the Lessor receive a
bonafide offer from a third party on the property east of Parcel 2, Lessee shall immediately
initiate rental payments on Parcel 1 at the Original Rent rate. On the effective date of this
Amendment, all rent will be recalculated on the basis of the total square footage shown in
Exhibit "A" and Lessee shall immediately pay any past due rent recalculated from the
effective date of the Lease.
-2-
SECTION 4. That Section VII "Special Conditions" is hereby amended to read as
follows:
It is expressly understood and agreed by and between Lessor and Lessee that this Lease
Agreement is subject to the following special terms and conditions.
RUNWAYS AND TAXIWAYS. Because of the present sixty thousand (60,000) pound
continuous use weight bearing capacity of Taxiway Alpha, Lessee herein agrees to limit all
aeronautical activity including landing, take-off and taxiing, to aircraft having an actual
weight, including the weight of its fuel, of sixty thousand (60,000) pounds or less, until such
time that the runway and designated taxiways on the Airport have been improved to handle
aircraft of such excessive weights. It is further agreed that, based on qualified engineering
studies, the weight restrictions and provisions of this clause may be adjusted, up or down,
and that Lessee agrees to abide by any such changes or revisions as such studies may
dictate. "Aeronautical activity" referred to in this clause shall include any activity of the
Lessee or its agents or subcontractors, and its customers and invitees, but shall not include
those activities over which it has no solicitory part or control, such as an unsolicited or
unscheduled or emergency landing. A pattern of violating the provisions of this section on
two or more occasions shall be sufficient to cause the immediate termination of this entire
Lease Agreement and subject Lessee to liability for any damages to the Airport that might
result.
SECTION 5. At approximately the same time as the execution of this Amendment, the
Lessor and Lessee are negotiating a Lease Estoppel with a lender to finance the improvements
which would further amend the Lease. If such a Lease Estoppel is executed, it will be attached
to and made a part of the Lease the same as this Amendment.
SECTION 6. That save and except as amended hereby that the remaining sections,
subsections, sentences, paragraphs of the Lease shall remain in full force and effect.
IN WITNTESS WHEREOF, the parties have executed this First Amendment to the
Lease Agreement as of the day of , 2005.
CITY OF DENTON, TEXAS, LESSOR
BY:
MICHAEL A. CONDUFF, CITY MANAGER
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY:
JET WORKS AVIATION, INC.
BY,
`
CHRIS HOSKINS, PRESIDENT
ACKNOWLEDGMENTS
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of , 2005,
by Michael A. Conduff, City Manager of the City of Denton, Texas, on behalf of said
municipality.
NOTARY PUBLIC, STATE OF TEXAS
-4-
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the 11 day of , 2005
by Chris Hoskins, President, Jet Works Aviation, Inc., a Texas corporation, on behalf of said
corporation.
NOTARY PUBLIC, STATE TEXAS
~~..M. JULIE ANN MULUNS
Notary Public, State of Tom
:b My Commission Expires
May 27, 2009
-5-
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LEASE ESTOPPEL
This Lease Estoppel (the "Agreement") dated , 2005 is entered
into by the CITY OF DENTON, TEXAS, a municipal corporation (hereinafter called "Lessor"),
JETWORKS AVIATION, INC. (hereinafter called "Lessee"), and SOUTHWEST BANK
(hereinafter called "Lender").
WHEREAS, the Lessee desires to obtain financing through Lender to facilitate the
construction of Lessee's Improvements, as defined and more fully described in Section II.D. of
the Lease (as hereinafter defined); and
WHEREAS, the Lender requires the parties to execute this Agreement before it will
provide financing to Lessee, the proceeds of which will be used to build Lessee's Improvements.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained
in this Agreement, the parties agree as follows:
ARTICLE 1 - DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings:
Lease: the Airport Lease Agreement - Commercial Operator - dated December 1, 2004
between the City of Denton, Texas, a municipal corporation, as lessor, and Jetworks
Aviation, Inc., a Texas corporation, as lessee, including the First Amendment to Airport
Commercial Operator Lease Agreement with Jet Works Aviation, Inc. dated
, 2005, and all extensions and modifications thereof and future amendments thereto.
Loan Documents: the documents, as modified, that are now or hereafter executed in
connection with or as security for the Southwest Bank Loans, including without limitation,
any promissory notes, loan agreements, guarantees, deeds of trust, security agreements,
certifications, and affidavits.
Project Property: The leasehold estate in the real property created by the Lease and being
more particularly described on Exhibit "A" incorporated herein for all purposes.
Southwest Bank Loans: The loans from Lender to Lessee in the original principal amounts
of $1,1.00,000.00 and $770,000.00.
ARTICLE 2 - AGREEMENTS
Lender has agreed to extend long-term financing in the amount of $1,100,000.00 and
short-term financing in the amount of $770,000.00 to Lessee for construction of improvements
to the Project Property. The Southwest Bank Loans will be secured, inter alia, by liens against
LEASE ESTOPPEL PAGE 1
Lessee's leasehold estate in the Project Property. In order to induce Lender to fund the Southwest
Bank Loans, and in consideration of the Southwest Bank Loans, the undersigned hereby agree as
follows:
1. Lessor's Consent to Granting and Existence of Liens. Lessor consents to the granting and
existence of liens against Lessee's leasehold interest in the Project Property to secure the
Southwest Bank Loans. Lessor and Lender acknowledge a subordinate and inferior
interest in Lessee's interest in the Project Property to be granted by Lessee in favor of the
Greater East Texas Certified Development Corporation ("CDC") and the United States
Small Business Administration ("SBA") and pursuant to that certain Lease Estoppel by and
between Lessor, Lessee, and the CDC of even date herewith which will be subordinate in
every respect to the rights of the Lender under this Agreement.
2. Lease Modifications and Cancellations. The Lease will not be modified or canceled
without the prior written consent of Lender, which consent shall not be unreasonably
withheld, conditioned or delayed. In the event the Lease is cancelled or terminated
pursuant to Section II or Section XIII, or any other provisions of the Lease, the Lender
shall have the right to:
(a) acquire the Lease and assume all the Lessee's rights and obligations under
the Lease;
(b) present to the Lessor a replacement lessee to assume all the Lessee's
obligations under the Lease, which replacement lessee must be approved by
Lessor; Lessor agrees that so long as the replacement lessee submitted by
Lender intends to conduct aeronautical and related activities as required
under the Lease, Lessor's approval of the replacement lessee shall not be
unreasonably withheld, conditioned, or delayed, or
(c) exercise its rights pursuant to the Loan Documents to remove Lessee's
Improvements for further disposition free and clear of any claims of
Lessor, but only to the extent of Lender's interest in Lessee's
Improvements at the time of such removal, unless the Lessor purchases
Lessee's Improvements from Lender in accordance with Section VIII.C.4
of the Lease. In the event of such removal, the Lender shall pay all
delinquent rent and cure any other condition of monetary default then
existing, and, at its sole cost and expense, remove the Improvements to
ground level including all debris and including the foundation of buildings
if requested by Lessor, but not including removal of piers for
Improvements existing below ground level and otherwise deliver up the
Lease premises in as good condition as existed at the inception of the
Lease, reasonable wear and tear excepted. However, so long as Lender
shall cure a default as provided in Paragraph S of this Agreement in the
LEASE ESTOPPEL PAGE 2
event of a monetary default and/or comply with the provisions of Paragraph
9 of this Agreement concerning nonmonetary defaults, the fifty percent
(50%) reduction in the Purchase Price (as defined in the Lease) provided
for in Section VIII.C.4 of the Lease shall not be operative.
Provided, however, in the event of any cancellation of the Lease which is not caused by
a default of Lessor, Lessee, Lender or any assignee or successor in interest to Lessee shall
pay all Lessor's administrative costs of such cancellation, including without limitation, all
reasonable attorney's fees, administrative costs and Lessor's staff time associated with
such cancellation.
3. Lender's Right to Acquire Leasehold Estate. If there is a default under the Loan
Documents, then the Lender will have the right to acquire the leasehold estate through
foreclosure or assignment of lease in lieu of foreclosure. The Lender's acquisition of the
leasehold estate will not constitute a default or termination of the Lease.
4. Lender's Rights as Lessee. If the Lender acquires the leasehold estate as stated in
paragraph 3 above, then it will succeed to the rights of Lessee under the Lease, including
without limitation, the right to exercise any options exercisable by the Lessee under the
Lease. And in addition, and notwithstanding any provision contained in the Lease to the
contrary, the Lender, as lessee under the Lease, will have the right to assign the Lease or
to sublease all or any part of the Project Property to a replacement lessee who intends to
conduct aeronautical and related activities as required under the Lease, and Lessor's
approval of said replacement lessee shall not be unreasonably withheld, conditioned, or
delayed. Provided, however, in the event of an assignment of the Lease, Lender or the
replacement lessee shall pay all of Lessor's administrative cost of processing such
assignment as described in Paragraph 2 herein.
5. Lender's Duties as Lessee. If the Lender acquires the leasehold estate as stated in
paragraph 3 above, then it will be obligated to pay rent and to perform Lessee's other
obligations under the Lease, including paying any delinquent, back rental or other charges
and other financial obligations owed as a result of the default.
6. Notice of Defaults. Lessor agrees to give Lender written notice of all defaults under the
Lease. Notice of a default will be given Lender within thirty (30) days of the date that
Lessor becomes aware of such a default and will identify any default with specifity. If the
Lessor fails to give notice of a monetary default within the thirty (30) day period, Lender's
liability for payment of accrued rental or other charges will be limited to amounts accrued
during a period no longer than sixty (60) days preceding written notice of default given
to Lender in order to effect the cures provided in paragraphs 8 and 9 below. Any notice
given by one party to the other in connection with this Agreement shall be in writing, shall
be deemed to be given on the date actually received, and shall be sent by certified mail,
return receipt requested, with postage fees prepaid, or via facsimile as follows:
LEASE ESTOPPEL PAGE 3
LESSOR.: City Manager
City of Denton
215 E. McKinney Street
Denton, Texas 76201
Fax No. (940) 349-8596
LESSEE: Chris Hoskins, President
Jetworks Aviation, Inc.
400 Gulf Stream Road, 9S
Fort Worth, Texas 76106
Phone (817) 626-4584
Fax No. (817) 626-1928
With a copy to:
Morton L. Herman
Cantey & Hangar L.L.P.
Burnett Plaza, Suite 2100
801 Cherry Street, Unit #12
Fort Worth, Texas 76102-6881
Fax No. (817) 877-2807
LENDER: Southwest Securities Bank
3737 Southwest Loop 820
P.O. Box 962020
Fort Worth, Texas 76162-2020
Attn: Debra L. Cheek, Assistant Vice President
Fax No. (817) 292-6725
7. Lender's Right to Cure Defaults. The Lender shall have the right to cure any or all
defaults under the Lease.
8. Opportunity to Cure Monetary Defaults. In the event of a material monetary default under
the Lease, Lessor agrees to give Lender a period of 60 days to cure the default before
exercising any of its remedies under the Lease. The first day of the sixty day period is the
day Lender actually receives the default notice.
9. Opportunity to Cure Non-Monetary Defaults. In the event of a material non-monetary
default under the Lease, Lessor shall take no action to exercise its remedies under the
Lease if within sixty (60) days following receipt by the Lender of a default notice: (i) the
Lender has cured any non-monetary defaults that are susceptible of being cured by it (by
way of example but not limitation, Lender will not be required to cure any default of
Lessee under Paragraph XIII of the Lease caused by a Lessee bankrupty); and (ii) the
LEASE ESTOPPEL PAGE 4
Lender has commenced all necessary action to obtain possession of the Project Property,
the Lender is diligently proceeding to obtain possession of the Project Property, and any
rental and other amounts due under the Lease, with all interest, penalties and other charges
that may be due under the Lease, have been and continue to be paid to Lessor.
10. Subordination of Landlord's Lien. Lessor agrees all rights to maintain or enforce a
statutory or contractual landlord's lien, security interest, or any other claim against
Lessee's personal property located on the Project Property shall be subordinate to the liens
of the Lender on such personal property provided Lender pays any delinquent rentals
accrued, subject only to the limitations contained in Section 6 hereof.
11. Condemnation Awards and Hazard Insurance Proceeds. Lessor and Lender agree that
notwithstanding the provisions of the Loan Documents between the Lender and Lessee
dealing with the control and application of any condemnation award or casualty insurance
proceeds, that as between the Lessee and Lender, it is agreed that in the event of damage
or loss to the Project Property, which loss or damage is covered by hazard insurance, the
Lender, at Lender's discretion, will utilize hazard insurance proceeds under its control to
the extent available to either:
(a) Fully repair any loss or damage to the Project Property and the underlying
premises to the condition it was in immediately prior to the hazardous event
causing the loss or damage for which the insurance proceeds were received; or
(b) Remove any damaged Project Property, including debris, to ground level, and
including the foundation of buildings, if requested by Lessor, but not including
removal of piers below ground level and otherwise deliver up the Lease premises
in as good condition as existed at the inception of the Lease, reasonable wear and
tear excepted.
12. Conflicts. In the event of a conflict between the terms of the Lease and this Agreement,
the terms of this Agreement will control, provided that all terms of the Lease which are
not in conflict with this Agreement shall remain in full force and effect.
13. Bindin Effect. This Agreement shall be binding upon the undersigned and their
successors, assigns, and legal representative. This Agreement is intended to benefit and
may be enforced by the Lessor, the Lender and their successors, assigns, and legal
representatives. This Agreement is given to assure the Lender and its successors and
assigns, as to the interpretation of certain Lease provisions affecting the Lender's interests.
It is not intended to confer nor shall it confer any right or benefit upon the Lessee or any
third party other than Lender.
LEASE ESTOPPEL PAGE 5
LESSOR:
City of Denton, Texas, a municipal
corporation
By:__
Michael A. Conduff, City Manager
ATTEST:
Jennifer Walters, City Secretary
By: _
APPROVED AS TO LEGAL FORM:
Edwin M. Snyder, Interim City Attorney
By:_
LESSEE:
Jetworks Aviation, Inc.
By:
H. Christopher Hoskins, President
LENDER:
Southwest Bank
By:
Name:
Title:
LEASE ESTOPPEL PAGE 6
STATE OF TEXAS §
COUNTY OF DENTON §
BEFORE ME, the undersigned, a Notary Public in and for the said County and State, on
this day personally appeared Michael A. Conduff, City Manager of the City of Denton, Texas,
a municipal corporation, known to me to be the person whose name is subscribed to the foregoing
document and acknowledged to me that he executed the same in the capacity therein stated and
for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2005.
NOTARY PUBLIC, State of Texas
STATE OF TEXAS §
COUNTY OF DENTON §
BEFORE ME, the undersigned, a Notary Public in and for the said County and State, on
this day personally appeared H. Christopher Hoskins, President of Jetworks Aviation, Inc., known
to me to be the person whose name is subscribed to the foregoing document and acknowledged
to me that he executed the same in the capacity therein stated and for the purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2005.
NOTARY PUBLIC, State of Texas
LEASE ESTOPPEL PAGE 7
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned, a Notary Public in and for the said County and State, on
this day personally appeared ,
of Southwest Bank, known to me to be the person whose name is subscribed to the
foregoing document and acknowledged to me that she/he executed the same in the capacity therein
stated and for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2004.
NOTARY PUBLIC, State of Texas
LEASE ESTOPPEL PAGE 8
S:%Our Documents\Ordinances104\Airp,ift Lease-Jetworks.doc
ORDINANCE NO.
AN ORDINANCE APPROVING A COMMERCIAL OPERATOR AIRPORT LEASE
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND JET WORKS
AVIATION, INC. AT THE DENTON MUNICIPAL AIRPORT; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute an airport
lease agreement for commercial operator between the City of Denton and Jet Works Aviation,
Inc. at the Denton Municipal Airport, in substantially the form of the Airport Lease Agreement
which is attached to and made a part of this ordinance for all purposes.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the 164 day of t4e&?z~ , 2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPR D AS TO LEGAL FORM:
HERBERT L. P UTY, C ATTORNEY
BY:
Jet Works, U=-FinatDOC
AIRPORT LEASE AGREEMENT
COMMERCIAL OPERATOR
This Lease Agreement is made and executed to be effective as of the First day of
December, 2004 (the "Effective Date) at Denton, Texas, by and between the City of
Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor", and Jet Works
Aviation, Inc., a Texas corporation, hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Lessor now owns, controls and operates the Denton Municipal Airport
(the "Airport"s in the City of Denton, County of Denton, State of Texas; and
WHEREAS, Lessee desires to lease certain premises at the Airport and construct and
maintain an aircraft hangar and related aviation facilities thereon;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. M-SDI i` ONS OF TEASE AGMEE1VfF U
NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY HEREINAFTER
CONTAINED, THE LANGUAGE IN PARAGRAPHS A THROUGH D OF THIS
SECTION SHALL BE BINDING.
A- 1RRTKMTEQ- OF OURATTON& The right to conduct aeronautical and related
activities for furnishing services to the public is granted to Lessee subject to Lessee
agreeing:
1. To furnish said services on a fair, equal and not unjustly discriminatory basis
to all users thereof; and
2. To charge fair, reasonable and not unjustly discriminatory prices for each unit
or service; provided, that Lessee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar types of price reductions
to volume purchasers.
B. NON-DT.RCRIMINATION: Lessee, for itself, its personal representatives,
successors, and assigns, as a part of the consideration hereof, does hereby
covenant and agree as a covenant running with the land that:
1. No person on the grounds of race, religion, color, sex, or national origin shall
be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities;
2. In the construction of any improvements on, over, or under such land and the
fimjishing of services thereon, no person on the grounds of race, religion,
color, sex, or national origin shall be excluded from participation in, denied
the benefits of, or otherwise be subjected to discrimination;
3. Lessee shall use the premises in compliance with all other requirements
imposed by or pursuant to Title 49, Code of Federal Regulations, Department
of Transportation, Subtitle A, office of the Secretary, Part 21, Nondiscrimi-
nation in Federally assisted programs of the Department of Transportation -
Effectual of Title VI of the Civil Rights Act of 1964, as said Regulations may
be amended.
C It is clearly
understood by Lessee that no right or privilege has been granted which would operate to
prevent any person, firm or corporation operating aircraft on the Airport from performing
any services on its own aircraft with its own regular employees (including, but not limited
to, maintenance and repair) that it may choose to perform.
D _ It is understood and agreed that nothing herein
contained shall be construed to grant or authorize the granting of an exclusive right within
the meaning of Title 49 U.S.G. Appendix §1349.
E. AREAS.
PIERTIC, 1. Lessor reserves the right to further develop or improve the landing area of the
Airport as it sees fit, regardless of the desires or views of Lessee, and without
interference or hindrance.
2. Lessor shall be obligated to maintain and keep in good repair the landing area
of the Airport and all publicly owned facilities of the Airport, together with the
right to direct and control all activities of Lessee in this regard.
3. During time of war or national emergency, Lessor shall have the right to lease
the landing area or any part thereof to the United States Government for
military or naval use, and, if such lease is executed, the provisions of this
instrument insofar as they are inconsistent with the provisions of the lease to
the Government, shall be suspended.
4. Lessor reserves the right to take any action it considers necessary to protect the
aerial approaches of the Airport against obstruction, together with the right to
prevent Lessee from erecting, or permitting to be erected, any building or other
structure on or adjacent to the Airport which, in the opinion of Lessor, would
limit the usefulness or safety of the Airport or constitute a hazard to aircraft or
to aircraft navigation. The hangar/officelshop complex as currently proposed
as provided in Section II.D. does not violate this provision.
5. This Lease Agreement shall be subordinate to the provisions of any existing or
AIRPORT LEASE AGREEMENT Jet Works - page 2
future agreement between Lessor and the United States or agency thereof,
relative to the operation or maintenance of the Airport.
II. T.F.ASED PREMISES
Lessor, for and in consideration of the covenants and agreements herein contained, to
be kept by Lessee, does hereby demise and lease unto Lessee, and Lessee does hereby lease
from Lessor, for the lease term described in Article III, the following described land situated
in Denton County, Texas:
A. Land. A tract of land, being approximately 200 feet by 275 feet by 240 feet by 270
feet or 1.3636 acres, drawn and outlined on Attachment "A", and legally described in
Attachment `B" as Parcel 1, such attachments being incorporated herein by reference (the
"Leased Premises").
Together with the right of ingress and egress to the Leased Premises; and the right in
common with others so authorized of passage upon the Airport property generally, subject
to reasonable regulations by the City of Denton and such rights shall extend to Lessee's
employees, passengers, patrons and invitees. For purposes of this agreement, the term
"Leased Premises" shall mean all property located within the metes and bounds described
and identified within Attachment "B", including leasehold improvements constructed by the
Lessee, but not including certain easements or property owned and/or controlled by the
Lessor.
A legal description of the leased premises is not currently attached as Attachment "B".
Lessee shall deliver to Lessor no later then 30 days after the date of this Agreement a legal
description of the leased premises accurately describing the leased premises that is
acceptable to Lessor. If Lessee fails to do so, Lessor at its option may terminate this
Agreement, in which case it will have no further force and effect. The approved legal
description will be attached to this Agreement as Attachment "B"_
B. Right of First -Refusal- So long as Lessee is in compliance with all construction
requiremcnts pertaining to Lessee's Improvements as set forth in Section II.D. below and is
not in default of any term or condition of this Lease Agreement, , Lessee shall have a right
of first refusal (the "Right of First Refusal" )to lease Parcel 2 which is more particularly
described in Attachment "A"or any portion thereof to which Lessor receives a written offer
to lease (the "Offer to Lease"). The Right of First Refusal shall be effective for a period of
three (3) years after the Effective Date (the "Option Period'.
Should Lessor receive an Offer to Lease from a third party during the Option Period
that Lessor has an interest in consummating, Lessor shall give Lessee a written notice of
such Offer to Lease along with a copy of said Offer to Lease (the "Notice"). Xf Lessee
desires to exercise its Right of First Refusal it shall no later than 45 days after the receipt of
the Notice tender to Lessor a signed written lease with identical terms and conditions as are
contained in the Offer to Lease (the "Dead Line"). If Lessee fails to meet the Dead Line, the
Right of First Refusal will be null and void and of no further force and effect.
AIRPORT LEASE AGREEMENT Jet Works - Page 3
C. : The only improvements provided by
Lessor, except as set forth in Article II.F. "Access to Utilities" below, shall be as follows:
Lessor shall continue planning efforts with the Texas Department of Transportation,
Aviation Division (TxDOT) to complete the planned expansion of the north tenminal apron
as depicted in green on Attachment A. The Lessor will complete the construction of this
planned apron expansion prior to Lessee's completion of Lessee's Improvements, subject to
the receipt of funding from Texas Department of Transportation C'TxDof Should TxDot
not provide the necessary funding in order to meet this deadline then Lessor will complete a
portion of planned apron expansion that is at least 100 feet wide adjacent to Lessee's hangar
facilities on Parcel 1, tapering to 50 feet wide to provide access to Taxiway Alpha. When
Lessor receives the necessary funding from TxDot, Lessor will complete the remainder of
planned apron expansion.
Lessor shall complete construction of water utility infrastructure for a looped
extension for a minimum six-inch water line approximately 1,000 feet in length prior to the
issuance of a certificate of occupancy for Lessee's Improvements.
The term "Lessor improvements" shall mean those things on or adjacent to the Leased
Premises belonging to, constructed by, or to be constructed by the Lessor. Unless otherwise
noted herein, all Lessor improvements are and will remain the property of Lessor. All
Lessor improvements must be described in detail above, or above referenced and attached to
this Agreement in an exhibit approved by Lessor.
D.. On the Leased Premises, Lessee
shall construct a hangar/office/shop complex with a minimum of 26,000 square feet. The
hangar space shall be a minimum of 18,000 square feet and the officelshop space shall be a
minimum of 8,000 square feet. Lessee shall construct an aircraft staging ramp 20 feet by
270 feet that will access the public ramp south of the proposed facility. Lessee shall also
construct appropriate culverts or drainage as required by City ordinances in the utility right
of way south and north of the proposed hangar as well as other improvements as determined
necessary by City ordinances (All above described improvements to be constructed by
Lessee are called the "Lessee's Improvements'. Construction of Lessee's Improvements
shall be commenced no later than 270 days and completed no later than 720 days after the
Effective Date (the "Construction Period"). Construction of Lessee's Improvements are
considered commenced upon issuance of a building permit and construction of any portion
of the hangar/office/shop complex. Constniction of Lessee's Improvements are considered
complete upon the issuance of a Certificate of Occupancy for the entire hangarlofIIce/shop
complex, and the aircraft staging ramp and drainage and utility improvements are
completed.
Notwithstanding anything contained in this Lease Agreement to the contrary, a
failure to complete the Lessee's Improvements within the Construction Period may, at
the sole option and discretion of the Lessor, result in the immediate terntination and
cancellation of this Lease Agreement upon 30 days written notice of cancellation to
Lessee. In such case Lessee's rights under the Lease Agreement will immediately
AIRPORT LEASE AGREEMENT Jet Works - Page 4
1
cease and be forfeited, and all of Lessee's Improvements shall immediately become the
property of Lessor at no cost, expense or other compensation paid by Lessor to
Lessee; and Lessee shall immediately vacate the Leased Premises.
E. FAMM . Lessor and Lessee by mutual agreement may establish, on the
Leased Premises, easements for public access on roads and taxiways.
F. ACCESS TO TTMTrTM- Lessor represents that there are water, sewer and 3-
phase electricity lines within close proximity to the Leased Premises available to "tap-in" by
Lessee, and that the same are sufficient for. usual and customary service on the Leased
Premises.
Bi TRRM
The term of this Lease Agreement shall be for a period of thirty (30) years, com-
mencing on the 1st day of December, 2004 and continuing through the 30a' day of
November of 2034, unless earlier terminated under the provisions of the Lease Agreement
(the "Lease Term"}. Lessee has the option to renew for two (2) additional ten (10) year
terms. In order to exercise the first option Lessee must provide written notice to Lessor of
its intent to exercise the first 10 year option no later than 180 day before the expiration of
the 30 year primary term. To exercise the second option such written notice must be
provided no later than 180 days before the expiration of the first 10 year option term. The
rental and terms to be negotiated for the option terms shall be reasonable and consistent
with the then value, rentals and terms of similar property on the Airport.
IV. PA)U S, RuNTAT , AND FFES
Lessee covenants and agrees to pay Lessor, as consideration for this Lease Agreement,
the following payments, rentals and fees:
A. Land =W shall be due and payable to Lessor in twelve (12) equal monthly
installments in the sums set forth below, on or before the 1 st day of each and every month
during the term of this Lease Agreement. Lessee has the option to pay annual rentals and
fees in whole on or before the 1 st day of October, at the beginning of the City's fiscal year,
each and every year of this Lease Agreement.
1. V>- 1 - -30-7
Annual rent shall be a sum equal to $0.20 per square foot of the land area contained in the
Leased Premises (the "Original Rent"). Monthly rental shall be 1/12a' of the annual rent.
Notwithstanding the foregoing, so long as Lessee complies with the construction
requirements of Lessee's Improvements contained in Section R D. and is not otherwise in
AIRPORT LEASE AGREEMENT let works - Page 5
default of any term or condition of this Lease Agreement the annual rent shall be
reduced to a sum equal to $0.05 per square foot of the land area contained. in the
Leased Premises at the time of completion of the Leased Improvements (the
"Reduced Rent"). Until such time that the Lessee's Improvements are completed
in accordance with Section H.D. Lessee shall pay the Original Rent. After
Lessee's Improvements are completed Lessee shall pay the reduced rent through
11-30-2007 and will be entitled to a refund or credit for the amount paid in excess
of the Reduced Rent for the period of this Lease Agreement up to and through the
date of completion of Lessee's Improvements.
1 ?.-1 -?007 Ihm 11-10-2034-
Annual rent shall be a sum equal to $0.20 per square foot of land area contained
in the Leased Premises as adjusted in accordance with Section N.C. In this regard
the rent beginning 12-1-2007 may be greater than.$0.20 per square feet. Monthly
rental shall be 1/12't' of the annual rent.
Notwithstanding the foregoing, the annual lease rental will be reduced by the current lease
rate per square foot, as adjusted by the CPI-U referenced in Section N.C., times the number
of square feet comprising all easements established in accordance with Section. ME-
B. NONE: There are no Lessor
improvements on the Leased Premises.
C. All payments due Lessor from Lessee
shall be made to Lessor at the offices of the Finance Department of the City of Denton,
Customer Service Division, 601 West Hickory, Denton, Texas, unless otherwise designated
in writing by the Lessor. If payments are not received on or before the 15'fi day of the
month, a five percent (51/1o) penalty will be due as of the 16th. If payments are not received
by the first of the subsequent month, an additional penalty of one percent (1%) of the unpaid
rental/fee amount will be due. A one percent (1%) charge will be added on the first of each
subsequent month until the unpaid rental/fee payment is made. The Original Rent for the
Leased Premises shall be readjusted at the end of each one year period during the Lease
Term on the basis of the proportion that the then current United States Consumer Price
Index for all urban consumers (CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics
bears to the previous odd month 2004 index (September), which was 179.7 (1982-84
100). Each rental adjustment, if any, shall occur on the 1st day of October, beginning
2006, and every other year thereafter on such date.
The adjustments in the yearly rent shall be determined by multiplying the Original
Rent by a fraction, the numerator of which is the index number for the last month prior to
the adjustment, and the denominator of which is the index number applicable at the
execution of this Lease Agreement. If the product of this multiplication is greater than
ASRPORT LEASE AGREEMENT Jet Yorks - Page 6
the Original Rent, Lessee shall pay this greater amount as the yearly rent until the time of
the next rental adjustment as called fox in this section. If the product of this multiplication
is less than the Original Rent there shall be no adjustment in the annual rent at that time,
and Lessee shall pay the previous year's annual rent until the time of the next rental
adjustment as called for in this section. In no event shall any rental adjustment called for
in this section result in an annual rent less than the previous year's annual rent. The
adjustment shall be limited so that the annual rental payment determined for any given
two-year period shall not exceed the annual rental payment calculated for the previous
CPI adjustment by more than twenty percent (20%) percent.
If the consumer price index for all urban consumers (CPI-U) for the Dallas-Fort
Worth geographical region, as compiled by the U.S. Department of Labor, Bureau of Labor
Statistics, is discontinued during the Lease Term, the remaining rental adjustments called
for in this section shall be made using the formula set forth above, but by substituting the
index numbers for the Consumer Price Index-Seasonally Adjusted U.S. City Average For
All Items For Ali Urban Consumers (CPI-LT) for the index numbers for the CPI -U
applicable to the Dallas Fort Worth geographical region. If both the CPI-U for the Dallas-
Fort Worth geographical region and the U.S. City Average are discontinued during the
Lease Term, the remaining rental adjustments called for in this section shall be made using
the statistics of the Bureau of Labor Statistics of the United States Department of Labor that
are most nearly comparable to the CPI-U applicable to the Dallas-Fort Worth geographical
region. If the Bureau of Labor Statistics of the United States Department of Labor ceases to
exist or ceases to publish statistics concerning the purchasing power of the consumer dollar
during the Lease Term, the remaining rental adjustments called for in this section shall be
made using the most nearly comparable statistics published by a recognized financial
authority selected by Lessor.
V.
A. TISE OF . Lessee is granted the non-exclusive privilege to
engage in owner/operator activities providing the following aviation services:
1 Lessee is granted the non-exclusive right to . Gen=al Aircraft Msintenance, conduct airframe and power plant maintenance.
2. Avionics: Lessee is granted the non-exclusive right to provide for the sale,
installation and maintenance of aircraft avionics and associated electrical
equipment.
3. Hangar Space lzasing_ Lessee is granted the non-exclusive right to rent
hangar space.
4. Offine Space T -egging-, Lessee is granted the non-exclusive right to rent office
space.
5. A;rcraft TntCdnr Shnn. Lessee is granted the non-exclusive right to rent space
AIRPORT LEASE AGREEMENT let Works -Page 7
for the repair, restoration, or reinstallation of aircraft interior components.
i
Lessee, its tenants, employees, invitees and guests shall not be authorized to conduct
any services not specifically listed in this Lease Agreement. The use of the Leased Premises
by Lessee, its tenants, employees, invitees or guests shall be limited to only those private,
commercial, retail or industrial activities having to do with or related to airports and avia-
tion. Except as specifically authorized in this Lease Agreement, no person, business or
corporation may operate a commercial, retail or industrial business upon the Leased
Premises or upon the Airport without a lease or license from Lessor authorizing such
commercial, retail or industrial activity. The Lessor shall not unreasonably withhold
authorization to conduct aeronautical or related services.
B. CTANT)ARDS_ Lessee shall meet or exceed the following standards:
1. A P_CR- Lessee shall file with the Airport Manager and keep current its
mailing addresses, telephone numbers and contacts where it can be reached in
an emergency.
2. plat. Lessee shall file with the Airport Manager and keep current a list of its
tenants and sublessees.
3. Con(tuct. Lessee shall contractually require its employees and sublessees (and
sublessee's invitees) to abide by the terms of this Lease Agreement. Lessee
shall promptly enforce its contractual rights in the event of a default of such
covenants.
4. Utilities, Trues and Fecs- Lessee shall meet all expenses and payments in
connection with the use of the Leased Premises and the rights and privileges
herein granted, including the timely payment of utilities, taxes, permit fees,
license fees and assessments lawfully levied or assessed.
5. Laws Lessee shall comply with all current and future federal, state and local
laws, rules and regulations which may apply to the conduct of business
contemplated, including rules, regulations and ordinances promulgated by
Lessor, and Lessee shall keep in effect and post in a prominent place all
necessary and/or required licenses or permits.
6. Lessee shall be responsible for the maintenance,
repair and upkeep of all property, buildings, structures and improvements,
including the mowing or elimination of grass and other vegetation on the
Leased Premises, and shall keep the Leased Premises neat, clean and in
respectable condition, free from any objectional matter or thing, including
trash or debris. Lessee agrees not to utilize or permit others to utilize areas on
the Leased Premises which are located on the outside of any hangar or
building for the storage of wrecked or permanently disabled aircraft, aircraft
parts, automobiles, vehicles of any t)pe, or any other equipment or items
AIRPORT LASE AGREEMENT Jet Works - Page 8
which would distract from the appearance of the leased premises. Lessee
agrees that at no time shall the Leased Premises be used for a flea market type
sales operation.
7Painting_of Buildings During the Lease Term of this Lease Agreement and
during each extension, Lessor shall have the right to require, not more than
once every five years, that the metal exterior of hangar(s) or building(s)
located on the Leased Premises be repainted. The Lessor may require Lessee
to repaint said exteriors according to Lessor's specifications (to specify color
of paint, quality of workmanship and the year and month in which the
hangar(s) or building(s) are to be painted, if needed.) Lessee shall complete
the painting in accordance with such specifications within one (1) year of
receipt of notice from Lessor. Lessee agrees to pay all costs and expense
involved in the hangar or building painting process. Failure of Lessee to
complete the painting required by Lessor, within the one (1) year period shall
constitute Lessee's default under this Lease Agreement.
g Premises. Lessee may not use any of the Leased
Premises for any use not authorized herein unless Lessor gives Lessee prior
written approval of such additional use. Without limiting the foregoing the
Leased Premises shall not be used for the operation of a motel, hotel,
restaurant, private club or bar, apartment house, storage of recreational
vehicles, automobiles, or marine vehicles, or for industrial, commercial, retail,
or other purposes, except as authorized herein.
9. Dwelling& It is expressly understood and agreed that no dwelling or domicile
may be built, moved to or established on or within the Leased Premises nor
may lessee, its tenants, employees, invitees, or guests be permitted to reside or
remain as a resident on or within the Leased Premises or other Airport
premises. . Lessee may have a pilot lounge, including restroom and shower
facilities for use by flight crew and passengers.
10. Quit Possession. Lessee shall quit possession of the Leased Premises at the
end of the Lease Term or any renewal or extension thereof, or upon
cancellation or termination of the Lease Agreement, and deliver up the Lease
Premises to Lessor in as good condition as existed when possession was taken
by Lessee, reasonable wear and tear excepted.
11. IndemnLessee must indemnify, hold harmless and defend the Lessor, its
officers, agents and employees, from and against liability for any and all
claims, liens, suits, demands and/or actions for damages, injuries to persons
(including death), property damage, (including loss of use), and expenses,
including court costs, attorneys' fees and other reasonable costs, occasioned
by or incidental to the Lessee's occupancy or use of the Leased Premises or
the Airport and/or activities conducted in connection with or incidental to this
Lease Agreement, including all such causes of action based on common,
AIRPORT LEASE AGREEMENT let Works - Page 9
constitutional or statutory law, or based in whole or in part upon the negligent
or intentional acts or omissions of Lessee, its officers, agents employees,
invitees or other persons. Lessee must at all times exercise reasonable
precautions on behalf of, and be solely responsible for, the safety of its
officers, employees, agents, customers, visitors, invitees, licensees and other
persons, as well as their property, while in, on, or involved in any way with
the use of the Leased Premises. The Lessor is not liable or responsible for
the negligence or intentional 'acts or omissions of the Lessee, its officers,
agents, employees, agents, customers, visitors and other persons. The Lessor
shall assume no responsibility or liability for harm, injury, or any damaging
events which are directly or indirectly attributable to premise defects, whether
real or alleged, which may now exist or which may hereafter arise upon the
Leased Premises, responsibility for all such defects being expressly assumed
by the Lessee. The Lessee agrees that this indemnity provision applies to all
claims, suits, demands, and actions arising from all premise defects or
conditions.
ANY CIAIM 1,09q, DAMAGE, CAUSE OF ACnON STTT-r
12. ('hem;ralc_ Lessee agrees to properly store, collect and dispose of all chemicals
and chemical residues; to properly store, confine, collect and dispose of all
paint, including paint spray in the atmosphere, and paint products; and to
comply with all Local, State and Federal regulations governing the storage,
handling or disposal of such chemicals and paints. Further, the Lessee shall be
solely responsible for all discharges, whether accidental or intentional, of any
chemical and for the costs associated with the cleanup, rernediation and
disposal of said chemicals.
13, Activities. Hazardoug Should Lessee violate any law, rule, restriction or
regulation of the City of Denton or the Federal Aviation Administration, or any
other regulatory authority, or should the Lessee engage in or permit other
persons or agents to engage in activities which could produce hazards or
obstruction to air navigation, obstructions to visibility or interference with any
aircraft navigational aid station or device, whether airborne or on the ground,
AIRPORT LEASE AGRFFMENT Jet Works - Page 10
then Lessor shall state such violation in writing and deliver written notice to
Lessee or Lessee's agent on the Leased Premises, or to the person(s) on the
Leased Premises who are causing said violation(s), and upon delivery of such
written notice, Lessor shall have the right to demand that the person(s)
responsible for the violation(s) cease and desist from all such activity creating
the violation(s). In such event, Lessor shall have the right to demand that
corrective action, as required, be commenced immediately to restore the Leased
Premises into conformance with the particular law, rule or aeronautical
regulation being violated. Should Lessee, Lessee's agent, or the person(s)
responsible for the violation(s) fail to cease and desist from said violation(s)
and to immediately commence correcting the violation(s), and to complete said
corrections within twenty-four (24) hours following written notification, then
Lessor shall have the right to enter onto the Leased Premises and correct the
violation(s) at the sole cost and expense of Lessee, and Lessor shall not be
responsible for any damages incurred to any improvements on the Leased
Premises as a result of the corrective action process. In addition, such violation
shall be considered a material default by Lessee authorizing Lessor, at its sole
option and discretion, to immediately terminate and cancel this Lease
Agreement.
C_ SIGNS. No signs, posters, or other similar devices ("Signage") shall be placed on
the exterior of the Lease Improvements or on any portion of the Leased Premises or Airport
property without the prior written approval of Lessor. Lessee, at its sole expense, shall be
responsible for the creation., installation and maintenance of all such Signage. Lessee shall
pay to Lessor any and all damages, injuries, or repairs resulting from the installation,
maintenance or repair of any such Signage. Any Signage placed on the Leased Premises
shall be maintained at all times in a safe, neat, sightly and good physical condition. All
sgnage shall be removed from the Leased Premises by Lessee immediately upon receipt of
instructions for removal of same from Lessor, including without limitation, upon expiration
or termination of this Lease Agreement. If Lessee fails to remove the Signage then Lessor
may do so at the sole cost and expense of Lessee. Lessee shall be permitted the right to
place two wall signs, no greater than thirty-two square feet each, identifying the commercial
hangar operation. All signage shall comply with all applicable ordinances including the
City of Denton sign ordinance."
D. ENTRY. Lessor and its designees shall have the right to enter the Leased
Premises upon reasonable advance notice (written or oral) and at any reasonable times for
the purposes of inspecting the Leased Premises, performing any work which Lessor elects
to perform under this Lease Agreement, and exhibiting the Leased Premises for sale,
lease, or mortgage. Nothing in this section shall imply any duty upon Le.ssor to do any
work, which under any other provision of this Lease Agreement Lessee is required to
perform, and any performance by Lessor shall not constitute a waiver of Lessee's default.
AIRPORT LEASE AGREEMENT Jet works - page 11
W rny-?NANTs, BY LESS )R
Lessor hereby agrees as follows:
. Upon on payment of all rent, fees, and performance
A. pEACM
of the covenants and agreements on the part of Lessee to be performed hereunder, Lessee
shall peaceably hold and enjoy the Leased Premises and all rights and privileges herein
granted.
B. VOMPITANCE Lessor warrants and represents that in the establishment,
construction and operation of the Airport, that Lessor has heretofore and at this time is
complying with all existing rules, regulations, and criteria distributed by the Federal
Aviation Administration, or any other governmental authority relating to and including, but
not limited to, noise abatement, air rights and easements over adjoining and contiguous
z areas, over-flight in landing or takeoff to the end that Lessee will not he legally liable for
any action of trespass or similar cause of action by virtue of any aerial operations of
adjoining property in the course of normal take-off and landing procedures from the
Airport; Lessor further warrants and represents that at all times during the Lease Term, or
any renewal or extension of same, that it will continue to comply with the foregoing.
VII SPECIAL COMUMNS
It is expressly understood and agreed by and between Lessor and Lessee that this
Lease Agreement is subject to the following special terms and conditions.
TAXIWAYS. Because of the present sixty thousand (60,000)
pound continuous use weight bearing capacity of the taxiway of Lockheed, Lessee herein
agrees to limit all aeronautical activity including landing, take-off and taxiing, to aircraft
having an actual weight, including the weight of its fuel, of sixty thousand (60,040) pounds
or less, until such time that the runway and designated taxiways on the Airport have been
improved to handle aircraft of such excessive weights. It is finther agreed that, based on
qualified engineering studies, the weight restrictions and provisions of this clause may be
adjusted, up or down, and that Lessee agrees to abide by any such changes or revisions as
such studies may dictate. "Aeronautical activity" referred to in this clause shall include any
activity of the Lessee or its agents or subcontractors, and its customers and invitees, but
shall not include those activities over which it has no solicitory part or control, such as an
unsolicited or unscheduled or emergency landing. A pattern of violating the provisions of
this section on two or more occasions shall be sufficient to cause the immediate termination
of this entire Lease Agreement and subject Lessee to liability for any damages to the Airport
that might result.
AIRPORT LEASE AGREEMENT let Works - Page 12
.r
VIII, T.F.ARF.HDTD1MPRONMMENIS
Before commencing the construction of any improvements
A, RF.QTTlEEh ,
IqL-
on the Leased Premises including Lessee's Improvements (the "Lease Improvements'),
Lessee shall submit:
1. Documentation, specifications, or design work, to be approved by the Lessor,
which shall establish that the improvements to be built or constructed upon the
Leased Premises are in conformance with the overall size, shape, color, quality
and design, in appearance and structure of the program established by Lessor
on the Airport.
2. All plans and specifications showing the location upon the Leased Premises of
the proposed construction and improvements;
3. The estimated cost of such construction.
No construction may commence until Lessor has approved the plans and
specifications and the location of the Lease Improvements, and the estimated costs of such
construction. Approval by the Lessor shall not be unreasonably withheld. Documentary
evidence of the actual cost of construction on public areas only (such as taxiways) shall be
delivered by Lessee to Lessor's City Manager from time to time as such costs are paid by
Lessee, and Lessor's City Manager or designee is hereby authorized to endorse upon a copy
of this Lease Agreement filed with the City Secretary of Lessor such actual amounts as he
shall have found to have been paid by Lessee, and the findings of the City Manager when
endorsed by him upon said contract shall be conclusive upon all parties for all purposes of
this Lease Agreement.
No later than 30 days after completion of the Lease Improvements, Lessee shall
submit to Lessor detailed as built plans of the Lease Improvements and documentary
evidence acceptable to Lessor evidencing the total cost to construct the Lease Improvements
("Cost to Construct Lease Improvements').
B. ADDITIONAL CONSTRI TCIIQhl OR IMPROVEMENTS: Lessee is hereby
authorized to construct upon the Leased Premises, at its own cost and expense, buildings,
hangars, and structures, that Lessor and Lessee mutually agree are necessary for use in
connection with the operations authorized, by this Lease Agreement, provided however,
Lessee shall comply with all of the requirements of Section VIII.A., above. Such additional
improvements shall be a part of the Lease Improvements.
C. OWNERSHIP OF TM QVEM '9: Except as otherwise provided in this
Lease Agreement, the Lease Improvements constructed upon the Leased Premises by
Lessee shall remain the property of Lessee during the Lease Term subject to the following
conditions, terms and provisions:
1. Removal of Buildings. No building or permanent fixture may be removed
AIRPORT LEASE AGREEMENT ]et Works - Page 13
from the Leased Premises.
2. ASCU- p The Lease Improvements shall automatically become the
property of Lessor absolutely free, without any cost to Lessor, at the end of the
Lease Term, or any extension: thereof
3. re to TmMm=entq The Lease Improvements shall
immediately become the property of Lessor at no cost, expense, or
compensation to Lessee should Lessee fail to complete the Lessee's
improvements within the Construction Period as provided in Section 11D. of
this Lease Agreement.
4. Cancellation or . Should this Lease Agreement be cancelled or
terminated before the end of the Lease Term, or extension thereof, Lessor shall
have the right to purchase all of the Lease Improvements. In the event of a
cancellation or termination, other then due to a default by Lessee that has not
been cured as provided below, the purchase price shall be equal to the most
recent value of the Lease Improvements as determined by the Denton County
Central Appraisal District ("Value of the Lease Improvements") reduced by
1130 for each year of the Lease Term that has expired as of the date of
termination (the "Purchase Price'). Should the Denton County Central
Appraisal District not determine a separate value for the Lease Improvements,
or should such separate valuation be older than two years, then the Purchase
Price will be determined taking the Cost to Construct the Lease Improvements
reduced by 1130 for each year the Lease Term has expired as of the date of
termination. If the termination or cancellation is due to a default by Lessee that
has not been cured within 30 days after written notice of default to Lessee,
then the Purchase Price as determined above shall be reduced by 50%.
However, if Lessee provides written notice to Lessor within said 30 day cure
period that it is impossible to,cure such default within said time period, then
the Lessor may consent to an extension of such time to cure, which consent
will not be unreasonably withheld.
IX. SURROGATTON OF MORTGAC'7EE
Any person, corporation or institution that lends money to Lessee for construction
of any hangar, structure, building or improvement and retains a security interest in said
hangar, structure, building or improvement shall, upon default of Lessee's obligations to
said mortgagee, have the right to enter upon the Leased Premises and operate or manage
said hangar, structure, building or improvement according to the tears of this Lease
Agreement, for a period not to exceed the term of the mortgage with Lessee, or until the
loan is paid in full, whichever comes first, but in no event longer than the Lease Term. It
is expressly understood and agreed that the right of the mortgagee referred to herein is
limited and restricted to those improvements constructed with funds borrowed from
mortgagee, those improvements purchased with the borrowed funds, and those
improvements pledged to secure the refinancing of the improvements.
AIRPORT LEASE AGREEMENT let works - Page 14
I
X.
Lessor shall have the right to establish easements, at no cost to Lessee, upon the
Leased Premises for the purpose of providing underground utility services to, from or
across the Airport property or for the construction of public facilities on the Airport.
However, any such easements shall not interfere with Lessee's use of the Leased Premises
and Lessor shall restore the property to the original condition as is reasonable practicable
upon the installation of any utility services on, in, over or under any such easement at the
conclusion of such construction. Construction in or at the easement shall be completed
within a reasonable time.
Xl.
Lessee expressly covenants that it will not assign this Lease Agreement, convey more
than fifty percent (50%) of the interest in its business, through the sale of stock or otherwise,
transfer, license, nor sublet the whole or any part of the Leased Premises for any purpose,
except for rental of hangar space or tie-down space for storage of aircraft only, without the
written consent of Lessor. Lessor agrees that it will not unreasonably withhold its approval
of such sale, sublease, transfer, license, or assignment of the facilities for Airport related
purposes; provided however, that no such assignment, sublease, transfer, license, sale or
otherwise shall be approved if the rental, fees or payments, received or charged are in excess
of the rental or fees paid by Lessee to Lessor under the terms of this lease, for such portion
of the Leased Premises proposed to be assigned, subleased, transferred, licensed, or
otherwise. The provisions of this Lease Agreement shall remain binding upon the
assignees, if any, of Lessee.
X]T.
A : Regardless of the activities contemplated under this
Lease Agreement, Lessee shall maintain continuously in effect at all tunes during the term
of this agreement, at Lessee`s sole expense, the following minimum insurance coverages:
1. Commercial (Public) General Liability covering the Lessee or its company, its
employees, agents, tenants and independent contractors, and its operations on the
airport. Coverage shall be in an amount not less than $1,000,000 per occurrence
and provide coverage for premises/operations and contractual liability AND where
exposure exists, coverage for: products/completed operations; explosion, collapse
and underground property damage.
2. All risk property insurance on a replacement cost basis covering loss or damage to
all facilities used by the Lessee, either as a part of this agreement or erected by the
Lessee subsequent to this agreement. Under no circumstances shall the Lessor be
liable for any damages to fixtures, merchandise or other personal property of the
Lessee or its tenants.
AIRPORT LEASE AGREEMENT Jet Works - Page 15
1
3. Business Automobile Liability to include coverage for Owned/Leased Autos, Non-
Owned Autos and Hired Cars:
For operation in aircraft movement areas the limit of liability shall be $100,000
per occurrence.
For other operations the limit of liability shall be consistent with the amount set
' by State Law.
B In addition to the above referenced coverages, the
following insurance is required if the activity or exposure exists or is contemplated:
1. Aircraft Fuel/Oil Storage and Dispensing - Comprehensive Commercial (Public)
General Liability shall include coverage or separate coverage shall be provided for
Environmental Impairment Liability.
2. Aircraft Sales or Aircraft Charter and Air Taxi - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat) shall
be provided.
3. Aircraft Rental or Flight Training - Aircraft Liability in the amount of $1,000,000
per occurrence to include Hull Coverage and Liability, Passenger Liability in the
amount of $100,000 per person (per passenger seat) and Student/Renter Liability
covering all users in the amount of $500,000 per occurrence.
4. Specialized Commercial Flying (including crop dusting, seeding, and spraying,
banner towing and aerial advertising, aerial photography and surveying, fire
fighting, power line or pipe line patrol) - Aircraft Liability in the amount of
$1,000,000 per occurrence to include Hull Coverage and Liability. In addition,
Passenger Liability in an amount of $100,000 per person (per passenger seat)
shall be provided.
5. Aircraft Storage, Maintenance and/or Repair - Aircraft Liability in the amount
of $1,000,000 per occurrence to include Hull Coverage and Liability. In
addition, Hanger Keepers Liability in the amount of $500,000 per occurrence
shall be provided. The requirement for Hangar Keepers Liability shall not
apply to individual owner/operators whose primary use of the hangar space is
the storage of their own aircraft. The requirement does not apply to such
individuals notwithstanding the fact that they may, from time to time, permit
the storage of non-owned aircraft in the hangar space and charge a fee for the
storage of such aircraft so long as such use is in the nature of a rent-shaving
agreement rather than a commercial aircraft storage business.
C. COVER AGE : All insurance coverages shall comply with the
i
AIRPORT LEASE AGREEMENT Jet Works - page 16
following requirements:
1. All liability policies shall mane the City of Denton, and its officers and employees
as an additional named insured and provide for a minimum of 30 days written
} notice to the City of any cancellation or material change to the policy.
2. All insurance required by this Lease Agreement must be issued by a company or
companies of sound and adequate financial responsibility and authorized to do
business in the State of 'T'exas. All policies are subject to the examination and
approval of the City's office of Risk Management for their adequacy as to content,
form of protection and providing company.
3. Required insurance naming the City as an additional insured must be primary
insurance and not contributing with any other insurance available to the City
whether from a third party liability policy or other. Said limits of insurance shall in
no way limit the liability of the Lessee hereunder.
4. The Lessor shall be provided with a copy of all such policies and renewal
certificates. Failure of Lessee to comply with the minimum specified amounts or
types of insurance as required by Lessor shall constitute Lessee's default of this
Lease Agreement.
5. During the Lease Term, or any extension thereof, Lessor herein reserves the right
to, with 50 days notice, adjust or increase the liability insurance amounts required
of the Lessee, and to require any additional rider, provisions, or certificates of
insurance, and Lessee hereby agrees to provide any such insurance requirements as
may be required by Lessor, provided however, that any requirements shall be
commensurate with insurance requirements at other public use airports similar to
the Denton Municipal Airport in size and in scope of aviation activities, located in
the southwestern region of the United States.
XJ[J. CAACEIT ATIONRYT.FSSOR
In the event that Lessee shall file a voluntary petition in bankruptcy or
proceedings in bankruptcy shall be instituted against it and Lessee thereafter is
adjudicated bankrupt pursuant to such proceedings, or any court shall take jurisdiction of
Lessee and its assets pursuant to proceedings brought under the provisions of any Federal
reorganization act, or Lessee shall be divested of its estate herein by other operation of
law; or Lessee shall fail to perform, keep and observe any of the terms, covenants, or
conditions herein contained, or on its part to be performed, the Lessor may give Lessee
written notice to correct such condition or cure such default and, if any condition or
default shall continue for thirty (30) days after the receipt of such notice by Lessee, then
Lessor may terminate this Lease Agreement by written notice to Lessee. However, if
Lessee provides written notice to Lessor within said 30 day cure period that it is impossible
to cure such default within said time period, then the Lessor may consent to an extension of
AIRPORT LEASE AGREEMENT Jet Works - Page 17
such time to cure, which consent will not be unreasonably withheld. In the event of
default, Lessor has the right to purchase any or all of the Lease Improvements under the
provisions of Section VIII.C.4. hereof.
XN.
Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of
its obligations hereunder at any time, by thirty (30) days written notice, upon or after the
happening of any one of the following events: (1) issuance by any court of competent juris-
diction of a permanent injunction in any way preventing or restraining the use of the Airport
or any part thereof for airport purposes; (2) the breach by Lessor of any of the covenants or
agreements contained herein and the failure of Lessor to remedy such breach for a period of
ninety (90) days after receipt of a written notice of the existence of such breach; (3) the
inability of Lessee to use the Lease Premises and facilities continuing for a longer period
than ninety (90) days due to any law or any order, rule or regulation of any appropriate
governmental authority having jurisdiction over the operations of Lessor or due to war,
earthquake or other casualty; or (4) the assumption or recapture by the United States
Government, or any authorized. agency thereof, of the maintenance and operation of said
airport and facilities or any substantial part or parts thereof.
Upon the happening of any of the four events listed in the preceding paragraph, such
that the Leased Premises cannot be used for aviation purposes, then the Lessee may cancel
this Lease Agreement as aforesaid, or may elect to continue this Lease Agreement under its
terms, except, however, that the use of the Leased Premises shall not be limited to aviation
purposes, their use being only limited by such laws and ordinances as may be applicable at
that time.
Should Lessor close the Airport and relocate the Airport to another location during the
primary term of this Lease Agreement, Lessee shall have the right to relocate its facilities to
the new airport at a suitable location under the same or similar terms of this Lease
Agreement. The cost of relocation of Lessee's facilities will be shared by Lessor and Lessee
in proportion to the number of years remaining on the primary term of this Lease
Agreement. In this regard Lessor will be responsible for 1130 of the such costs for every
year remaining on the primary term.
XV. hfqrRILAXEMSPROVISIONS
A. RNTiRR AGREEMENT. This Lease Agreement constitutes the entire
understanding between the parties and a& of its Effective Date supersedes all prior or
independent Agreements between the parries covering the subject matter hereof. Any
change or modification hereof shall be in writing signed by both parties.
B. RTNnmT(T EEEE=T. All covenants, stipulations and agreements herein shall
extend to, bind and inure to the benefit of the legal representatives, successors and assigns
AIRPORT LEASE AGREEMENT ]et Works - Page 18
. r
of the respective parties hereto.
C. SEWER ABIF . If a provision hereof shall be finally declared void or illegal by
any court or administrative agency having jurisdiction, the entire Lease Agreement shall not
be void; but the remaining provisions shall continue in effect as nearly as possible in
accordance with the original intent of the parties.
D. NfM['E Any notice given by one party to the other in connection with this
Lease Agreement shall be in writing and shall be sent by certified mail, return receipt
requested, with postage fees prepaid or via facsimile as follows:
1. If to Lessor, addressed to:
City Manager
City of Denton
215 E. McKinney Street
Denton, Texas 76201
Fax No.940.349.8596
2. If to Lessee, addressed to:
Chris Hoskins, President
Jet Works Aviation, Inc.
400 Gulf Stream Road, 9S
Fort Worth, Texas 76106
Phone (817) 626-4584
Fax No. (817) 626-1928
With copy to:
Morton L. Herman
Cantey & Hangar L.L.P.
Burnett Plaza, Suite 2100
801 Cherry Street, Unit #12
Fort Worth, Texas 76102-6881
Fax No. (817) 877-2807
E. HEADMM. The headings used in this Lease Agreement are intended for
convenience of reference only and do not define or limit the scope or meaning of any
provision of this Agreement.
F. CXJ)=NNG LAW AND VEM M. This Lease Agreement is to be construed in
accordance with the laws of the State of Texas and is fully performable in Denton County,
Texas. Exclusive venue for any lawsuit to enforce the terms or conditions of this Lease
Agreement shall be a court of competent jurisdiction in Denton County, Texas.
AIRPORT LEASE AGREEMENT Jet Works - Page 19
G. No waiver by Lessor or Lessee of any default or breach of
covenant or term of this Lease Agreement may be treated as a waiver of any subsequent
default or breach of the same or any other covenant or term of this Lease Agreement.
i H. During all times that this Lease Agreement is in effect, the parties
E agree that Lessee is and shall not be deemed an agent or employee of the Lessor.
I FORCE MAJEUR.E. None of the Parties shall be in default or otherwise liable
for any delay in or failure of performance under this Lease Agreement if such delay or
failure arises by any reason beyond their reasonable control, including any act of God,
any acts of the common enemy or terrorism, the elements, earthquakes, floods, fires,
epidemics, riots, failures or delay in transportation or communications. However, lack of
funds shall not be deemed to be a reason beyond a Party's reasonable control. The Parties
will promptly inform and consult with each other as to any of the above causes, which in
their judgment may or could be the cause of a delay in the performance of this Lease
Agreement.
IN WITNESS WHEREOF, the parties have executed this Lease Agreement as of the
Effective Date first above written.
CITY OF DENTON, TEXAS, LESSOR
BY:
MICHAEL A. CO UFF, CITY AGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: '
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
AIRPORT LEASE AGREEMENT ]et Works - Page 20
JET WORDS AVIATION, INC.
BY:
CHRIS HOS S, PRESIDENT
i
AIRPORT LEASE AGREEMENT Jet Works - page 21
ACKNOWLEDGMENTS
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the LL~Aay of 2004, by
Michael A. Conduff, City Manager of the City of Denton, Texas, on behalf of said
municipality.
JANE E. RICHARDSON NO ARY PUBLIC, STATE OF TEXAS
Notary Public, State of Texas
y My Commission Expires
:y'ipE llLS~a'
T~ June 27, 2005
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day oft)0ie b f 2004 by
Chris Hoskins, President, Jet Works Aviation, Inc., a Texas corporation, on behalf of said
corporation.
NOTARY PUBLIC, STATE OF TEXAS
roe JULIE CHAPMAN
t*t NOTARY PUBLIC
jf State of Texas
aft Comm. Exp. 0$-27-2008
AlRPaRT L£,ASB AGF.FEMENT Jet Works - Page 22
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